TaxTMI 
TaxTMI 
2017 (10) TMI 60
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....y in filing of the appeals was not on account 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 ....
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....ly is plausible reason but also constitute a sufficient and reasonable cause in not filing the appeal within the limitation period. 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 durin....
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....Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the 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 te....
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....n nature whereas in the facts and circumstances of the present case, no interest U/s 234A was chargeable at all. 6. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice. 10. At the outset, 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....
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....rch, neither there is any whisper regarding any reference to seized or incriminating material in the assessment order. In fact, the entire basis for making the addition is the figures given in the balance sheet filed alongwith the return of income with regard to 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....
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....Vs Kesarwani Zarda Bhandar Sahson Alld., Allahabad High Court, 2016, ITA No. 270 of 2014 5) Canara Housing Development Co. Vs DCIT, Karnataka High Court, 49 taxmann.com 98 (Karnataka) 6) CIT Vs Kesarwani Zarda Bhandar Sahson Alld., Allahabad High Court, 2016, ITA No. 270 of 2014. 14. We have heard the rival submissions, perused the relevant 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 foll....
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....s. This proposition of law has been well settled and reiterated by the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla reported in [2016] 380 ITR 573 (Delhi) and has been reiterated in the case of Pr. CIT vs. Meeta Gutgutia reported in [2017] 152 DTR 153 (Delhi). 16. In the case of CIT vs. Kabul Chawla (supra), the Hon'ble High Court, after discussing various judgments and analysing section 153A in-extenso, 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 year....
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....e Act is titled "Assessment in case of search or requisition". It is connected to Section 132 which deals with 'search and seizure'. Both these provisions, therefore, have to be read together. Section 153A is indeed an extremely potent power which enables the Revenue to reopen at least six years of assessments earlier to the year of search. It is not to be exercised lightly. It is only if during the course of search under Section 132 incriminating material justifying the re-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 condu....
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....he Court referred to the decision of the Rajasthan High Court in Jai Steel (India) v. Assn. CIT [2013] 36 taxmann.com 523/219 Taxman 223. The said part of the decision in Kabul Chawla {supra) in paras 33 and 34 reads as under: '33. The decision of the Rajasthan High Court in Jai Steel (India), Jodhpur v. A CIT {supra) involved a case where certain books of accounts and other documents that had not been produced in the course of original assessment were found in the course of search. It was held where undisclosed 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, assessment....