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TMI Blog2012 (6) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. The appeal is not filed within the prescribed time. However, we shall revert to this issue later on. At present, it will be sufficient to say that application for condonation of delay and an affidavit from the Commissioner of Income tax have been filed on 21.09.2011, on the date of hearing. The assessee has opposed the condonation of delay. 2. The brief facts are that the assessee filed original return declaring loss of Rs.5,63,60,530/- on 25.11.2003. This return was processed u/s 143(1) of the Income-tax Act, 1961 ('the Act' for short) on 12.12.2003. The return was revised on 31.03.2004 declaring loss of Rs.5,88,50,530/-. The revision was in respect of treatment to be meted out to the compensation of Rs.2.00 crore paid to Gemini Distilleries Ltd. for restraining them from entering into any agreement with competitors for supply of raw-material or leasing its facilities. The proceedings were initiated by issuing notice u/s 143(2) on 13.10.2004, which was served on the assessee on 14.10.2004. 2.1 The assessee is engaged in the business of manufacture, distribution and sale of alcoholic beverages. It was found by the AO that expenditure of Rs.16,59,90, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AandP incurred by the appellant company would by all means benefit the same and therefore it would be inapt to consider that benefit of such promotion would accrue only to the BIL and not to the appellant company. and merely because benefit accrues to BIL does not render such expenses as not for the purpose of business. Thus, looking to the facts of the case as well as relying on various judgments referred to, I am in agreement with the appellant company that no disallowance should have been made. It is pertinent to note that as per the practice followed by the appellant company and as was decided by the department in earlier years only 1/5th of such expenses should be allowed as against entire amount of Rs.8,18,06,964/- and balance amount should be allowed in four years in equal proportion. Appellant has stated in its submission that they have claimed only 1/5th of such expenses in its return of income and has not claimed deduction of 4/5th of such expenses, which are treated as deferred revenue expenses and, therefore, the AO may also verify this fact and may recompute the income accordingly." 2.2 On merits, the ld. CIT, DR has relied on the order of the AO. It is argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed the whole of the expenditure as revenue expenditure in this year as advertisement expenses are in the nature of revenue expenditure. However, it has claimed only 1/5th of the expenditure in this year and the balance expenditure has been claimed and allowed in assessment years 2004-05 to 2007-08. In the interest of consistency, it will be appropriate to hold that the assessee is entitled to the deduction of 1/5th of the expenditure in this year. Accordingly, the ground taken by the revenue is dismissed. 3. Coming to the condonation of delay, the ld. CIT has mentioned in the application filed on 21.09.2011 that originally the revenue had filed appeal on 21.03.2007, which was registered as ITA No. 1393(Del)/2007. The ground taken in the appeal mentioned the amount at Rs.8,73,42,592/-. This appeal was disposed off by way of dismissal on 03.07.2008 on the ground that neither the AO has made addition of the aforesaid amount nor the ground arises out of the order of the ld. CIT(Appeals). An application u/s 254(2) was filed on 24.12.2008 mentioning that the amount should be taken at Rs.8,18,06,964/- against the amount of Rs.8,73,42,592/-, mentioned in the appeal. The miscell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous application. Thus, the revenue has not acted with due diligence even in filing the instant appeal. In such a situation, the appeal is required to be dismissed in limine, in view of the decision of "B" Bench of Delhi Tribunal in the case of Additional CIT vs. M/s Sumitomo Corporation for assessment year 1997-98 in ITA No. 930(Del)/2008 dated 30.06.2010, a copy of which has been placed on record. Paragraph no. 11 of the decision is reproduced below for ready reference:- "11. Keeping in mind the above authoritative pronouncement of the Hon'ble Supreme Court, let us consider the facts of the present case. According to the Learned DR, the appeal of the revenue is not time barred. It was filed within limitation due to some omission the grounds of appeal and authorization in support of such grounds granted by the Learned CIT(Appeals) were annexed relating to some other appeals. That appeal is also of the revenue in the case of present assessee and for this very assessment year. The appeal has arisen against the order of Learned CIT(Appeals) dated 11.12.2000 passed on an assessment order made under sec. 143(3) of the Act, whereas this appeal has arisen from a proceeding under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in the eyes of law, it was not valid appeal. It is not the case where appellant sought to raise additional ground of appeal or some other connected issues which was already taken up in the original memo of appeal. We have extracted the application for condonation of delay in the upper part of the order, not a single reason is discernible from that application. The revenue has narrated the facts but nowhere shown how it failed to file the grounds of appeal emanating from the impugned order of the Learned CIT(Appeals). We agree to the proposition that in every case of delay, there can be some lapse on the part of litigant concerned and that alone is not enough to turn down the plea and to shut the doors against him. Hon'ble Supreme Court in the case of N. Balakrishanan (supra) has observed that length of delay is immaterial, it is the acceptability of the explanation, i.e. the only criteria for condoning the delay. In the present case, revenue failed to show any reason which can pursued us to condone the long delay in filing the valid appeal. Considering the casual approach of the revenue in conducting the proceedings, we reject this appeal on preliminary ground that it failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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