TaxTMI 
TaxTMI 
2023 (7) TMI 1404
X X X X Extracts X X X X
X X X X Extracts X X X X
....a did not pursue the litigation before ld. CIT(A) and therefore, the appeal of the assessee was decided ex-parte. The assessee came to know about the status of this appeal in the month of March, 2019 and after obtaining the papers, the appeal is being filed. It is further submitted that the assessee had contacted with Sh. Raunak Jain who prepared the appeal and filed before the ITAT. 2. Along with the appeal, the assessee has filed an application for condonation of delay which is also available on the record. This application is under the signature of Sh. S.K. Bose, one of the directors who also pleaded that the company has requested the tax consultant to prepare an appeal to the Hon'ble Tribunal. However, due to some miscommunication and improper advice at the end of the tax consultant, the appeal could not be filed well in time. The affidavit of Sh. S.K. Bose is also available. 3. On the other hand, ld. D/R submitted that assessee should be more vigilant in pursuing its remedy before the higher appellate authority. He also pointed out that not only before the Tribunal assessee did not submit relevant details before the first appellate authority as well as ld. Assessing Offi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isk. 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 do so. 4.1. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N. Balakrisknan vs. M. Krishnamurtky (supra). It reads as under: "Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before the first appellate authority and similarly, he has not communicated the order of ld. CIT(A) as well as prepared the appeal further. It is pertinent to observe that no litigant would gain anything by making an appeal time barred. Therefore, such a step can never be taken at the end of the assessee to delay the disposal of the appeals. The demand has already been raised against the assessee and it is an adverse order against it unless it is deleted, no benefit would be there to the assessee. Therefore, to our mind, it was not adopted as a strategy to litigate with the Department. We condone the delay and proceed to decide the appeal on merit. 6. The assessee has taken 7 grounds of appeal. However, all the grounds are theoretical and peripheral in nature without specifically pointing out the grievance. In brief, the grievance is that ld. CIT(A) has erred in confirming the addition of Rs. 4,70,26,000/- added by ld. AO with the aid of Section 68 of the Act by way of an ex-parte order. 7. Brief facts of the case are that assessee has filed its return of income electronically on 29.03.2013 declaring total income NIL. Ld. AO has passed a scrutiny assessment and determined the tax....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consequently the question of establishment of the genuineness of the transactions or the creditworthiness of the creditors did not arise. It is not for the ITO to find out by making investigation from the bank accounts unless the assessee proved the identity of the creditors and their creditworthiness. As to how the onus can be discharged would depend on the facts and circumstances of each case. It is expected of both the sides - The assessee and the assessing authority - to adopt a reasonable approach. This view had been taken in the case of CIT v M/s Nipun Builders & Developers Pvt. Ltd. 30 Taxmann.com 292 (Delhi)[2013], The assessee was a private limited company, which cannot issue shares in the same manner .in which a public limited company does. It has to generally depend on persons known to its directors or shareholders directly or indirectly to buy its shares. There must be some positive evidence to show the nature and source of the resources of the share-subscriber himself. In this case, there was no compliance either on the part of the assessee company. When the finding is that the assessee company have not been found existing at the addresses given in the return of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eal that neither of the authorities has specifically applied its mind. Ld. AO in second paragraph of first page observed that assessee had raised fresh paid-up share capital of Rs. 4,70,26,000/-. Thereafter, ld. AO recorded finding in one and a half page which has no coherence with the subject. It is just a jurisprudence taken out from some commentary or we do not know whether he has kept it as a readily available material. The order does not disclose who are the share applicants, how much money has been received by the assessee from these share applicants whether they are taxable entities or individuals. In the computation of income, ld. AO has made addition of Rs. 4.70 Cr but in the next line observed that assessed total income is Rs. 3.32 Cr. In the next line, he again made taxable income at Rs. 4.70 Cr. All these things are discernible from perusal of the assessment order extracted (supra). 10. Ld. CIT(A), though, devoted 13 pages to record the finding that additions made by ld. AO deserves to be upheld but out of those 13 pages, he also reproduced the readily available material from some earlier discussions in some other case. In other words, page nos. 3 to 12 are just cut & ....