TMI Blog2013 (11) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... having paid the entire taxes as per return of income, the application dated 31/5/2011 filed before CIT(A) requesting for the condonation of delay or the revival of the appeal in view of the judgment of the ITAT, Mumbai in case of Bhumiraj Construction [2010 (4) TMI 754 - ITAT MUMBAI], is required to be considered and accordingly, the CIT(A) is directed to verify whether the entire admitted tax has been paid or not and if so, he shall consider the case on merit in accordance with law, on the various grounds raised by the appellant Company – Appeal of assessee allowed for statistical purpose. - ITA No.3126/Ahd/2011 - - - Dated:- 12-4-2013 - Mukul Kr Shrawat and T R Meena, JJ. For the Appellant : Shri G C Pipara, AR For the Respondent : Mrs Ronee Agrawal, CIT-DR ORDER:- Per: T R Meena: This is an appeal at the behest of the assessee which has emanated from the order of CIT(A)-XI, Ahmedabad, dated 21.09.2011 for A.Y. 1996-97. The effective grounds of appeal are as under: 1. The learned CIT(A) has erred in law and on facts in dismissing the appeal against assessment order u/s. 143(3) of the Act dated 26/02/1999 treating it as infructuous on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition of ₹ 58,035/-, made by the AO on account of disallowance of entertainment expenditure. In view of the facts, circumstances and nature of payment, the said expenses be allowed. 8. The learned CIT(A) has erred in not deciding the ground of appeal disputing the addition of ₹ 4,43,423/-, made by the AO on account of disallowance of compensation expenses. In view of the facts, circumstances and nature of payment, the said expenses be allowed. 9. The learned CIT(A) has erred in not deciding the ground of appeal disputing the addition of ₹ 58,176/-, made by the AO on account of disallowance of hire charges paid on plant and machinery, without consequently allowing depreciation on these machineries. 10. The learned CIT(A) has erred in not deciding the ground of appeal disputing the addition of ₹ 82,922/-, made by the AO on account of disallowance out of car expenses and addition of ₹ 72,401/- on account of disallowance out of depreciation on vehicles. In view of the facts of the case, the impugned addition requires to be deleted or in the alternative restricted to a reasonable extent. 2. The appellant filed return on 07.04.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per law. Further observed that in the earlier year s assessment order, the addition was made on account of income of the various schemes in respect of whom the profit or remuneration of a particular year was not mentioned in the agreement with the NTCs/societies. The assessee Company as a developer of the scheme was entitled to remuneration/development charges as prescribed in the agreement entered for this purpose with NTC/society. However, it was observed that in the case of some of the schemes, no rate of recovery every year of development charges/remuneration was mentioned whereas the scheme had been carried out during the year alongwith construction activity and also members collection having been received. Therefore, income was added on estimated basis adopting the average rate which was modified in accordance with the rate of recovery for the development charges during the year for the other schemes. During the assessment year under consideration, the assessee Company had shown the following development receipts as against the members contribution and expenses from various schemes:- Schemes Members Contribution Expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me at Rs. Nil subject to adjustment u/s. 154. 2. The learned A.O. has erred in making an addition of ₹ 6,87,000/- by way of income receivable from Elegance . In view of the facts and circumstances of the case, the same may be deleted. 3. The learned A.O. has erred in making an addition of ₹ 1,40,000/-, being consultancy expenses paid to Aum Corporation. In view of the facts, circumstances and nature of payment, the same be allowed. 4. The learned A.O. has erred in making an addition of ₹ 5,26,415/- being legal and professional fees. In view of the facts, circumstances and nature of payment, the same may be allowed. 5. The learned A.O. has erred in making an addition of ₹ 58,035/- being entertainment expenditure. In view of the facts and circumstances of the case, the same may be deleted. 6. The learned A.O. has erred in disallowing ₹ 4,43,423/-, being compensation expenses. The same should be allowed looking to the facts and circumstances of the case. 7. The learned A.O. has erred in making an addition of ₹ 58,176/- being hire charges paid on plant machinery, without consequently allowing depreciation on these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay on filing of appeal as appellant had not paid self assessment tax due to financial position of the Company. The ld. Commissioner vide his order dated 21.09.2011, had dismissed the appeal treating it as infructuous on the ground that appeal filed earlier against the same order had been disposed of on technical ground and hence the appellant is not entitled to file the appeal second time against the same order. The ld. CIT(A) also held that since the assessment order was revised by the CIT-III, Ahmadabad, vide order u/s. 264, dated 22.01.2001, the appeal against that order does not lie before the CIT(A). When ld. CIT(A) dismissed the appeal, the appellant carried the matter before us on 08.12.2011, wherein above ten grounds of appeal have been made. 4. Ld. Counsel for the appellant vehemently argued that various Courts have interpreted the Section 249(4)(1) of the IT Act liberally that the appellant had right to appeal as held in case of T. Govindappa Setty v. ITO, (1998) 231 ITR 893, 898-99. He further referred the Hon ble Apex Court decision in case of Jute Corporation of India Ltd. v. CIT 186 ITR 689, wherein the change of circumstances or law, the appellant can raise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal as time-barred, is the order appealable u/s. 250 of the IT Act. These views already confirmed by the Hon ble Apex Court in case of CIT v Dalmia 117 ITR 930, 236 ITR 46 CIT v Bhikaji 42 ITR 123 (SC). In such cases of refusal to admit an appeal or rejection of an appeal on the ground of limitation, irregularity, incompetence or any other preliminary ground, the CIT(A) s order amounts to a confirmation of the A.O s. order appealed against, and a second appeal lies to the Tribunal held in case of Gopilal v CIT 65 ITR 477. The appellant submitted written argument which is summarized as under: (a) From the above law position it is very clear that powers under section 264 vested in the Commissioner is subject to the provisions of the Act. (b) As per the provisions of the Act, the appellant s case does not fall within the ambit of section 264. (c) The appellant has not waived its right of appeal even in petition under section 264. (d) Madras High Court in the case of D. Laxminarayanapathi (Supra) has held that unsuccessful efforts of revision under section 264 does not constitute a bar to the filing of the appeal. (e) The Pune Bench of the ITAT in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of tax of appeal deserved to be admitted and there is no time limit prescribed u/s. 249(4) on return income for filing of appeal. Therefore, ld. A.R. of the appellant requested to send the matter to the CIT(A) and directing him to condone the delay and decide the case on merit. 5. At the outset, ld. CIT D.R. relied upon the Hon ble Apex Court decision in case of Union of India v. British India Corpn. Ltd. [2004] 140 Taxman 357 (SC), wherein refund of tax has been claimed by the appellant, was found by the Hon ble Apex Court barred by limitation. He further relied in case Hon ble Karnataka High Court decision in case of D. Komalakshi v. DCIT (Supra) and argued that the appellant had failed to pay the tax on self assessment which is mandatory requirement of Section 249(4) of the IT Act, there was no legal error existed in order of Commissioner (Appeals). He further relied in case of Bharatkumar Sekhsaria v. DCIT [2002] 82 ITD 512 (Mum.), wherein the appeal before the CIT(A) is not maintainable in case of no self assessment tax paid. He further argued that delay in filing appeal was not on genuine ground as held by the Hon ble Apex Court in case of Vedabai alias Vaijayanatab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29/12/1998, as per the order under section 154 dated 2/3/12 passed by the A.O. Further, even after the assessment was completed on 26/2/1999 appellant has paid further amount of ₹ 25,000/- on 28/4/1999 which is even after appeal filed before CIT(A) on 5/4/1999. This clearly indicates the intention of the appellant to make the payment as per the taxes due, even after the appeal is filed before the CIT(A). The ld. A.R. has relied heavily on the judgment of Mumbai Bench of ITAT in case of Bhumiraj Construction (supra) and stated that in the identical set of facts, the said judgment is in their favour. We have carefully gone through the said judgment wherein the facts involved are more or less similar to the facts involved in the present appeal. The ld. CIT D.R. has relied upon the judgment of Mumbai Bench of ITAT in the case of Bharatkumar Sekhsaria vs. Dy. CIT (supra). It has already been considered by the Hon'ble ITAT, Bench F', Mumbai, in the case of Bhumiraj Construction. Further reliance is placed on the judgment of S. Alagarswamy v. Income Tax Officer (supra) is on a different set of facts; and reliance placed by the CIT D.R. in the case of Dr. C.M.K. Reddy v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay and dismissed the appeal on 31-9-2004. It was found that the Commissioner (Appeals), in his order dated 31-8-2004, failed to examine whether there existed sufficient reasons on the part of the assessee for non-compliance with the provisions of section 249(4)(a). The Commissioner (Appeals) was thus, not justified in refusing to condone the delay without examining that aspect of the matter [Para 22] . In view of the facts and circumstances of the case and the position in law, the matter was to be remitted back to the file of the Commissioner (Appeals). He would examine, after bringing the relevant material on record, whether there existed sufficient reasons for failure on the part of the assessee to comply with the provisions of section 249(4)(a). If it was found that there existed sufficient reasons for failure on the part of the assessee to comply with the provisions of section 249(4)(a), in that case the Commissioner (Appeals) would condone the delay and would hear and decide the appeal on merits. Accordingly, in view of above legal position, the petition u/s.264 is infructuous exercise which has admitted by the CIT in para 2 order u/s. 264 of the IT Act. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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