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2018 (3) TMI 1744

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....de a plea that it should be considered as sufficient reason for delay in filing the appeal. 3. On the other hand, ld. DR has failed to file any counter-affidavit from AO or any objection for such delay in filing the appeal by the assessee, even though, the bench has advised ld. DR to get any counter-affidavit or objection from the AO, if any, should be filed before hearing. We find that on record, no such affidavit or objections were filed. 4. While adjudicating the delay in filing the appeal, the Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiju and others, [1987]167 ITR 471, has held as below: "3. The legislature has conferred the power to condone delay by enacting s. 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably l iberal approach in mat....

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.... assessee vide its letter dated 16/12/2011 furnished the details wherein the total sales of Rs. 23,55,16,826/- as against the sales admitted as per P&L A/c of Rs. 23,29,57,591/-. 6. With the powers vested u/s 263 of the Act, the ld. CIT called for the assessment records of the assessee and on verification of the records, he noticed that the assessee has furnished the details of sales but sales admitted in P&L a/c are different and he also claimed provision for excise duty of Rs. 17,76,219/- in its profit and loss account and there is also a claim of MAT credit amounting to Rs. 12,99,195/-. The CIT observed that at the time of assessment, AO has failed to examine the discrepancies in sales and other issues and its implication in computing the taxable income. In view of the above observation, he came to the conclusion that the order passed by the AO u/s 143(3) of the Act on 23/12/2011 is considered as erroneous and in so far as it is prejudicial to the interests of the revenue. Accordingly, he issued a show cause letter to the assessee u/s 263 of the Act. In response to the said show cause notice, assessee submitted that reconciliation statement between VAT returns and sales accordi....

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....The Ld. CIT erred in not considering the reconciliation statement submitted with regard to the discrepancy pointed out. 9. The Ld. CIT ought to have considered the fact that the provision for Excise Duty of Rs. 17,76,290/- was created correctly by following Excise Duty Rules and also the accounting standards. 10. The Ld. CIT ought to have appreciated that the Excise Duty debited to Profit & Loss A/ c on finished goods is as per Accounting Standard-2, Customs and Excise Duty rules, which has already been included in closing stock and that there is no effect in Profit & Loss AI c for the year under consideration. 11. The Ld. CIT ought to have appreciated that the MAT credit of Rs. 12,99,195/claimed by the assessee has been correctly worked out as per the provisions of the Act. 12. The assessee may add, alter, or modify or substitute any other points to the Grounds of appeal at any time before or at the time of hearing of the appeal." 8. Ld. AR submitted that CIT has failed to quantify the income aspect or found any satisfaction with regard to prejudicial to the interests of revenue. Further, he brought to our notice to page 82 of the paper book in which AO has sent a questio....

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....gain of Rs. 1.26 crores has been earned by the assessee on transactions relating to investments 'held to maturity', and secondly whether the depreciation of Rs. 622.39 lakhs was claimed on investments which were held as stock-in-trade. Now from the material on record before the Court it is evident that the assessee, in response to a specific query of the AO dt. 20th Sept., 2004 supplied details of the long-term investments held for a period in excess of one year which the assessee treated as investments held to maturity. The profit on these investments was computed at Rs. 1.26 crores. Insofar as the aspect of depreciation of Rs. 622.39 lakhs on investments held as stock-in-trade was concerned, the assessee had similarly supplied to the AO details of the current investments in response to the query of the AO. In addition, it would also have to be noted that, in pursuance of the order passed by the CIT under s. 263, an assessment order came to be passed on 28th Dec., 2007. During the course of the assessment order, the AO noted that the assessee has explained depreciation claimed against the investments held and classified as stock-intrade. The explanation of the assessee in this con....