TaxTMI 
TaxTMI 
2015 (4) TMI 904
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....,40,190/- out of other expenses." Ground in ITA 403/JP/2012 (A.Y. 2006-07) "1. The learned Commissioner of Income Tax (Appeals) has erred on facts and in law in denying the claim of exemption to the Society U/s 10(23C)(iiiad). He has further erred in upholding the finding of the A.O. that assessee society has inflated the expenses, collected the donation even though there is no such clause in the object of the society and that the moto of the assessee is to earn profit. 2. The learned Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the disallowance of Rs. 11,08,571/- out of salary expenses and Rs. 1,89,012/- out of other expenses." 2. These appeals of the assessee are filed late by 347 days. An application for condonation of delay has been filed. 3. The brief facts of the case are that a survey U/s 133A of the Income Tax Act, 1961 (hereinafter referred as the Act) was carried out at the premises of the assessee institution on 02/9/2005. During the course thereof, some incriminating material was found indicating that the institution was being run with profit moto and was not eligible for exemption. As the returns were not filed, therefore, notic....
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....f these facts, A.O. is justified in rejecting the books of accounts of appellant. A.O. is also justified in making disallowance of Rs. 11,08,571/- out of salary and Rs. 1,89,012/- out of other expenses on the basis of categorical admission of Shri Abid Khan in this regard. The disallowances are confirmed. Ground No. 6,7,8,9 and 10 are thus dismissed." 5. Aggrieved, the assessee is in these belated appeals before us. The learned counsel for the assessee adverted to the condonation petition, which narrates as under:- "With reference to above, we beg to submit that for the reasons mentioned in the affidavit of CA Kaushal Agarwal as enclosed, assessee could not file the appeal before Hon'ble ITAT within the time allowed as per the statute. Now, the assessee is filing appeal against the order of CIT(A) before Hon'ble ITAT. It is, therefore, requested to kindly condone the delay in filing the appeal and oblige." 6. The affidavit of the Chartered Accountant deposes as under:- I, CA. Kaushal Agarwal, son of Sh. Mohanlal Agarwal, aged 46 years, resident of Mangalpura, Jhalawar (Rajasthan) do hereby solemnly affirm on oath as under:- 1. That I am a Chartered Accountant by profession pract....
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....he learned D.R., on the other hand, vehemently opposed the assessee's petitions for condonation of delay. It is pleaded that: (i) Neither the assessee nor the C.A. has given any specific and genuine reason to demonstrate that there exists a reasonable and sufficient cause to condone the delay. (ii) It is trite law that it is the burden of the assessee to explain the delay of every day in a reasonable manner. (iii) The assessments resulted in huge additions and for two years heavy demand of tax and interest was raised. This was a serious matter, which in normal circumstances would require frequent meetings and consultations between assessee and the counsel to analyze the issues. Such matters cannot be left to get and forgot the papers attitude of the CA. The theory, vague and too naïve to be believed. (iv) The affidavit fails to reflect in credibility inasmuch as neither any particular dates nor events are mentioned to objectively corroborate the depositions. The visit of Mr. Malik Parvej, President of the Society is referred to some time in first week of April, which is a vague deposition. Similarly the dates when CA proceeded for SBBJ audit and returned there from ....
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.... and fails to explain day to day delay in reasonable manner. The assessee has neither filed any evidence nor the affidavit of Shri Malik Parvej to corroborate the vague affidavit by the C.A.. It does not conform to general human conduct in such circumstances, preponderance of probabilities and surrounding circumstances which form sine qua non in the matters of condonation of delay. It is unbelievable that an assessee, whose taxable income is claimed to be NIL is taxed for two years assessed at such a high income resulting in a huge tax and interest demand will not visit the C.A. office almost for a period of about one year to know about the filing of the appeals. There is no deposition in the affidavit that prior to TRO notice dated 02/3/2012, no other notice by way of telephone or writing was received either by assessee or the C.A. Thus, the depositions in affidavit remain vague, unsubstantiated and do not amount to explaining the sufficient cause. 10. The affidavit and cavalier conduct of Shri Kaushal Agarwal, C.A. raises serious questions on his professional competence and work ethics in giving such an affidavit which hides more than it explains. The burden is on the assessee ....