TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 60
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.... of latches or fault on the part of the assessee, albeit it was due to renovation work carried out in his office and dislocation of related files of the assessee, the appeals could not be filed on time. In his sworn affidavit, Shri Sanjay Kumar has deposed as under:- "Affidavit of Shri Sanjay Kumar, S/o Late Hari Saran Dass, Resident of B- 2/38, Janakpuri, New Delhi-110058. I, Sanjay Kumar, the above named deponent do hereby solemnly declare and affirm as under:- 1. That the deponent is fully acquainted with the facts of the case deposed to below as partner of M/s Sanjay & Sanjay, Chartered Accountants acting as Authorised Representative of M/s Appolo Traexim Private Limited in ITA No. 4679/Del/2014 for the assessment year 2003-04 and ITA No. 4680/Del/2014 for the assessment year 2004- 05 and hence competent to swear and affirm this affidavit. 2. That appeal orders passed under section 250 by the Commissioner of Income-tax (Appeals) -XXXIII, New Delhi for the A.Y. 2003-04 and 2004-05 respectively were received by the appellant-assessee on 07.10.2013 and the same were delivered by the appellant-assessee in our office to file second appeal. 3. That against the afo....
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....d. It is trite that the Courts and quasi-judicial authorities while considering the scope of expression "sufficient or reasonable cause" for condonation of delay, has to see that the litigants are not denied substantial justice when there is no negligence or latches or want of bonafide which can be imputed upon the party. The Hon'ble Supreme Court in the case of N. Balkrishnan vs. M. Krishna Murti, AIR 1998 SC 322, has condoned the delay of 883 days in filing an application for setting aside an ex-parte decree, for which application for condonation of delay was filed. While condoning the delay, their Lordships laid down a very important proposition of law which is reproduced hereunder:- "8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used ....
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....he very threshold and cause of justice being defeated. As against this when delay is condoned the highest then can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made, why not every hour's delay, every second's delay. The doctrine must be applied on a rational commonsense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to so. 8. If we apply the aforesaid ratio and principle laid down by the Hon'ble Apex Court on the facts of the ....
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...., the ld. counsel, Shri Sanjay Kumar, argued the legal issue raised in ground no. 2 and submitted that, in the facts and circumstances of the present case, no addition could have been made within the scope of section 153A, because no incriminating material or documents were found or seized during the course of search carried out in the case of the assessee and, therefore, such additions made by the Assessing Officer and as confirmed by the ld. CIT(A) should be quashed or directed to be deleted. Explaining the relevant facts qua this preliminary issue, he submitted that in this case, search and seizure action under section 132(1) was carried out on 19/1/2009 on the group concern, in which assessee's name also figured in the warrant of authorization. He drew our attention to the copy of Panchnama dated 19/20.1.2009 and Panchnama dated 5/3/2009, the details of which are as under:- SI. No. Date, Place subjected to search Warrants in the name of (i) On 19/20.1.2009 701, Mercantile House, 15 K.G. Marg, New Delhi-110001 Yogendra Chandra Kurele, Gahoi Buildwell Ltd. etc. Search was temporarily concluded and order under section 132(3) was served. (ii) On 5.3.2009 - In continuation....
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....the share capital and share premium which was already there on record. He submitted that now it is settled law, specifically in the jurisdiction of Hon'ble Delhi High Court, that in the case of unabated assessments, no addition can be made over and above originally assessed income without any incriminating material found or seized during the course of search. In support, he relied upon the following judgments:- 1. Judgment of Hon'ble Delhi High Court dt. 25.05.2017 in the case of Pr. CIT Vs. Meeta Gutgutia since reported in [2017] 82 taxmann.com 287 (Delhi) : 152 DTR 153 2. Judgment of Hon'ble Delhi High Court dt. 28.08.2015 in the case of CIT Vs. Kabul Chawla [2016] 380 ITR 573 (Delhi) : [2015] 234 Taxman 300 (Delhi). 3. Judgment of Hon'ble Karnataka High Court dt. 15.12.2015 in the case of CIT Vs. Lancy Constructions [2016] 237 Taxman 728 (Karnataka). 4. Unreported decision dated 14.11.2014 of Hon'ble Tribunal 'D' Bench, Delhi in the case of Dy. CIT vs. Kurele Paper Mills Pvt. Ltd. in ITA No.3761/Del/2011. 5. Unreported decision dated 06.07.2015 of Hon'ble Delhi High Court in the case of Pr. CIT vs. Kurele Paper Mills Pvt. Ltd. in ITA No.369/2015. 6. Hon'ble ....
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....vant finding given in the impugned order as well as the material referred to before us at the time of hearing. The assessee for assessment year 2003-04 has filed its original return on 2/12/2003 and along with the return following documents were attached, which is evident from the documents appearing in the paper book from pages 1 to 10:- "Ack. for filing Original return dated 02.12.2003 for A.Y. 2003-04; along with following documents attached to it: (a) Computation of income (b) Statutory Audit Report (c) Balance Sheet as at 31.3.2003 (d) Profit & Loss Account for the year 31.3.2003 (e) Schedules to Annual Account" Similarly, for the assessment year 2004-05, also the assessee has filed its original return of income on 28/2/2004 which again was attached with the following documents:- "Ack. for filing Original return dated 28.10.2004 for A.Y. 2004-05; along with following documents attached to it: (a) Computation of income (b) Statutory Audit Report (c) Balance Sheet as at 31.3.2004 (d) Profit & Loss Account for the year 31.3.2004 (e) Schedules to Annual Account" 15. The said return of income stood duly accepted, as no notice under section 143(2....
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....have laid down the following legal proposition:- i. Once a search takes place under Section 132 of the Act, notice under Section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be re....
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....opening of the assessments for six previous years is found that the invocation of Section 153 A qua each of the AYs would be justified. 57. The question whether unearthing of incriminating material relating to any one of the AYs could justify the reopening of the assessment for all the earlier AYs was considered both in Anil Kumar Bhatia {supra) and Chetan Das Lachman Das {supra). Incidentally, both these decisions were discussed threadbare in the decision of this Court in Kabul Chawla {supra). As far as Anil Kumar Bhatia {supra) was concerned, the Court in paragraph 24 of that decision noted that "we are not concerned with a case where no incriminating material was found during the search conducted under Section 132 of the Act. We therefore express no opinion as to whether Section I53A can be invoked even under such situation". That question was, therefore, left open. As far as Chetan Das Lachman Das {supra) is concerned, in para 11of the decision it was observed: "11. Section 153A (1) (b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took....
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....d income or undisclosed property has been found as a consequence of the search, the same would also be taken into consideration while computing the total income under Section 153A of the Act. The Court then explained as under: "22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material; and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made." 34. The argument of the Revenue that the AO was free to disturb income de hors the incriminating material while making assessment under Section 153A of the Act was specifically rejected by the Court on the grou....