TaxTMI 
TaxTMI 
2018 (10) TMI 1092
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....2013 Quantum Appeal - A.Y. 2007-08 4. There is a delay of 1005 days in filing the present appeal before the Tribunal. Seeking condonation of delay, initially, the assessee has filed Affidavit of its Manager (Accounts), Shri Tushar Baliram Prabhu, wherein, it is stated that being on the impression that on account of losses and carry forward of losses of earlier years, the tax effect on the total income determined by the Assessing Officer would be nil, assessee did not file any appeal against the order of the learned Commissioner (Appeals). Further, it has been stated, only after levy of penalty under section 271(1)(c) of the Act, the assessee was compelled to file the present appeal, as, due to heavy losses suffered, the assessee is not in a position to take the financial burden. Subsequently, the assessee has filed one more Affidavit by one Apurba Rick Dutta, Director of the Company, stating that on the advice of Shri Shrikant Dutt, Chartered Accountant, not to file any second appeal before the Tribunal, the assessee did not file any appeal against the order of the learned Commissioner (Appeals).Only after receiving the show cause notice in respect of penalty proceedings under se....
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....se of delay, the learned Departmental Representative submitted, not only there are contradictions in the affidavits but the assessee has also failed to point out what is the reasonable cause for not filing the appeal in time. He submitted, the assessee is a company and must be complying to so many legal obligations. Therefore, it is not believable that it was unable to file the appeal merely on the advice of the Chartered Accountant. Further, he submitted, in the memorandum of appeal filed before the learned Commissioner (Appeals) and the Tribunal one Director has signed, whereas, the fresh affidavit filed is of some other Director. He submitted, assessee has also not filed any affidavit of the Chartered Accountant stating that he had advised the assessee not to file any appeal against the order of Commissioner (Appeals). Thus, he submitted, in the absence of any reasonable cause for delay explained by the assessee, delay should not be condoned and the appeal should be dismissed in limine. 7. We have considered rival submissions on the issue of condonation of delay. Undisputedly, there is a delay of 1005 days in filing the present appeal before the Tribunal. Section 253(1) of the ....
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....sue of delay condonation in respect of quantum and penalty appeals which are also part of this group, has submitted that there are contradictions between the affidavits filed by the employee of the assessee company and its Director, however, on a careful perusal of both the affidavits, we do not find any major contradictions in the averments made therein, except, the fact that in the second affidavit it has been stated by the Director of the company that on the advice of erstwhile Chartered Accountant, the appeal was not preferred. In fact, for explaining the delay in filing the appeal before the Commissioner (Appeals) against the penalty order for assessment year 2007-08, an affidavit was filed by another Director of the company, namely, Anjali Datta stating that the erstwhile Chartered Accountant firm which was handling the tax matters, though, was communicated all the notices for compliance, however, they did not take any step. Thus, on a conspectus of the material brought on record, we find some truth in the contention of the assessee that the appeal was not filed on the advice of the erstwhile Chartered Accountant firm who was handling the tax matters. This is so because, undi....
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.... on the quantum of delay involved. This, in our view, is not correct. If the learned Commissioner (Appeals) has found the explanation of the assessee with regard to cause of delay in filing the appeal acceptable in respect of two appeals, it should be so for all the appeal irrespective of the quantum of delay. Therefore, we are unable to accept the submissions of the learned Departmental Representative which is, more or less, based on the reasoning of Commissioner (Appeals). 9. Having held so, it is necessary to observe, the explanation of the assessee with regard to condonation of delay in the present appeal is more or less identical to similar explanation submitted before the learned Commissioner (Appeals) in respect of delay in filing the appeals before him. It is not disputed that there was some disturbance / dislocation in the activities of the company due to the death of its Executive Director and bankruptcy of its holding company, Nexgenix Inc, USA, which was also its main client. Therefore, the assessee sustained huge loss. These factors coupled with the fact that the erstwhile Chartered Accountant firm wrongly advised the assessee or did not handle the tax matters properl....
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.... the assessee. He was of the view that since the assessee was developing a project for its holding company and due to bankruptcy of the holding company the expenditure incurred by the assessee could not be recovered, the loss on that account being a capital loss cannot be allowed. Accordingly, he disallowed assessee's claim of depreciation. Being aggrieved by such disallowance, the assessee preferred appeal before the first appellate authority. 12. The learned Commissioner (Appeals) after considering the submissions of the assessee sustained the disallowance of depreciation on the reasoning that the assessee could not substantiate that the asset on which it claimed depreciation was put to use during the relevant previous year. He also rejected assessee's alternative claim for allowance of the expenditure as loss. 13. The learned Authorised Representative reiterating the stand taken before the Departmental Authorities submitted, the assessee has developed the intangible asset for its holding company and the expenditure was capitalized in assessment year 2006-07. He submitted, though, due to bankruptcy of the holding company the cost of the project could not be recovered from the h....
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....iew of the aforesaid, we are inclined to restore the issue to the file of the Assessing Officer for denovo adjudication after due opportunity of being heard to the assessee. This ground is allowed for statistical purposes. 16. The next dispute is with regard to disallowance of bad debt amounting to Rs. 48,99,744. 17. Brief facts are, during the assessment proceedings the Assessing Officer noticing that the assessee has debited an amount of Rs. 48,99,744, to the Profit & Loss account towards provision of bad debt, called upon the assessee to explain why it should not be disallowed as it is in the nature of provision. In response, it was submitted by the assessee that the said amount was receivable from Nexgenix Inc., USA, as on 31st March 2007.However, due to bankruptcy of the said company, the recovery of the said amount from the said party is doubtful. Therefore, assessee has created the provision in its account. Since, the amount was not recoverable it was written-off as bad debt. The Assessing Officer did not find merit in the submissions of the assessee and disallowed the claim of bad debt as it is in the nature of provision. Though, the assessee agitated the issue before t....
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....reme Court in the decisions referred to above and decide the issue accordingly. Needless to say, the Assessing Officer must afford reasonable opportunity of being heard to the assessee before deciding the issue. 20. In the result, assessee's appeal is allowed for statistical purposes. ITA no.5244/Mum./2014 Quantum Appeal - A.Y. - 2008-09 ITA no.5246/Mum./2014 Quantum Appeal - A.Y. - 2010-11 21. Brief facts, which are more or less identical in both the appeals are,assessments year for the aforesaid assessment years were completed ex-parte to the best of judgment under section 144 of the Act as the assessee did not comply to the notices issued by the Assessing Officer. Though, appeals were preferred against the aforesaid assessment orders before the learned Commissioner (Appeals), he also dismissed the appeals in limine on the ground of delay of 189 days in filing both the appeals. 22. While dealing with similar issue of condonation of delay in ITA no.5735/Mum./2013, we have discussed the issue in detail. We found that the learned Commissioner (Appeals) on the basis of identical explanation filed by the assessee seeking condonation of delay has condoned the delay in case of two ....
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....s) while deciding the appeals of the assessee condoned the delay for assessment year 2008-09 and 2010-11 accepting the explanation of the assessee, whereas, he refused to condone the delay of 506 daysin filing the appeal for assessment year 2007-08. As regards the dismissal of assessee's appeal for assessment year 2007-08 in limine, our decision with regard to delay condonation in respect of other appeals in the earlier part of the order equally applies to the facts of these appeals also. On the basis of identical explanation filed by the assessee in all these appeals, the learned Commissioner (Appeals) has taken different views with regard to condonation of delay only on the basis of quantum of delay involved in each appeal irrespective of the fact that the explanation of the assessee explaining the cause of delay remains the same in all these appeals. That being the case, in our view, the learned Commissioner (Appeals) was not justified in dismissing assessee's appeal on the ground ofdelay. However, the additions on the basis of which the penalty under section 271(1)(c) of the Act was imposed by the Assessing Officer in assessment year 2007-08 has been restored back to him for de....