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TMI Blog2015 (10) TMI 2297X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. It has been submitted by the learned authorised representative of the assessee that the assessee initially did not file the appeal or cross-objection against the impugned order of the CIT(A) on the belief that nothing further remains to be done as the appeal was allowed on merits by the CIT(A). It is further submitted that the assessee changed its authorized representative on 1/8/2014and during the course of conference held on 7/8/2014, the assessee was advised that it needs to file CO against the department's appeal by challenging the jurisdiction of the AO to reopen the assessment under section 147. Accordingly, assessee filed the CO belatedly by 803 days. Thus it was pleaded that the delay in filing CO was neither willful nor deliberate but was caused by misunderstanding of the correct legal position when the CIT(A) allowed the appeal of the assessee on merits and deleted the addition. 5. On the other hand, the learned DR submitted that the condonation of delay is not a matter of right and the assessee has not explained reasonable cause for not filing CO within the period of limitation. He has relied upon the decision of the Delhi Bench of the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be explained with some reasonable cause and to the satisfaction of the Tribunal. It is not the case of the assessee that the earlier AR/counsel of the assessee has given wrong advice for not filing CO or appeal against the impugned order, but the assessee has accepted the order of the CIT(A) until the CO was filed belatedly. Even otherwise, the explanation narrated in the affidavit has not been supported by any fact on record. In the matter of condonation of delay, no doubt lenient view has to be taken while interpreting the sufficient cause of delay however, this does not mean that the litigant has a free license to approach the court on its will. Therefore, in the absence of any satisfactory or cogent explanation, the inordinate delay in filing the CO remains unexplained with sufficient or reasonable cause. Accordingly, we decline to condone the delay of 803 days in filing the CO and consequently the CO filed by the assessee is dismissed being barred by limitation. 6.1 The learned authorised representative of the assessee has also raised an alternative plea that this issue can be raised under rule 27 of the ITAT Rules even without filing CO or appeal against the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of CIT vs. HCL Comnet Systems & Services Ltd.(305 ITR 409)(SC) as there were other judgments of the Hon'ble Madras High Court in the case of DCIT vs. Bearhell Ltd. (244 ITR 256) as well as the Special Bench decision in the case of JCIT vs. Usha Martin Industries Ltd. (104 ITD 249) whereby the issue of adjustment on account of provision for doubtful debts has been decided in favour of the revenue. He has supported the order of the AO. 7. We have considered the rival submissions as well as the relevant material on record. As per rule 27 of the ITAT Rules, 1963, the respondent even without filing an appeal can support the order of the CIT(A) on any of the grounds which have been decided against the respondent. Thus, the scope of raising a plea against the maintainability of the appeal without filing the appeal is limited under rule 27 of the ITAT Rules. In other words, if the respondent succeeds on the plea raised under rule 27, then the impugned order of the CIT(A) would stand and will have full effect insofar as it is against the revenue. Thus if the plea raised by the assessee is accepted as regards the validity of the assessment order then t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 27 is only to the extent of defence against the appeal filed by the revenue and if the assessee succeeds in the said ground, then the appeal filed by the revenue would fail. 9. The AO has reopened the assessment by recording the reasons for reopening as under: "In this case assessment was completed u/s 143(3) on 22.3.2006 computing book profit of Rs. 22,71,84,707/-. On perusal of the records for AY 2003-04 it is seen that site restoration cost of Rs. 1,02,43,014/- and provision for doubtful advances of Rs. 61,85,324/- is required to be added back to the income computed u/s 115JB since both the provisions are not ascertained liabilities. In view of the above, I am satisfied and have reason to believe that the income to the extent of Rs. 1,64,28,338/- chargeable to tax has escaped assessment within the meaning of the provision of sec.147 of the IT Act. " It is clear from the reasons recorded by the AO that it is only on the perusal of the record available with the AO, he has formed an opinion or belief that income assessable to tax has escaped the assessment because site restoration cost of Rs. 1,02,43,014/- and provision for doubtful advances of Rs. 61,85,324/- was require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Ltd.(supra), the Hon'ble jurisdictional High Court in the case of Rallies India Ltd. (supra) has held as under: "17. Subsequent to the decision of the Supreme Court in HCL (2008) 305 ITR 409(SC), Parliament stepped in to amend Explanation (1) to Section 115JB by the Finance Act of 2009. As a result of the amendment, clause (i) came to be inserted in Explanation (1) so as to provide for the amount or amounts set aside as provision for diminution in the value of an asset. Though the amendment was made with retrospective effect from 1st April 2001, it was enacted into law after the Assessing Officer had exercised the power to reopen the assessment in the present case by his notice dated 16th July 2008. Consequently, on the date on which the Assessing Officer exercised his jurisdiction under Section 148, the amendment which was brought in subsequently by the Finance Act of 2009 was not in existence. 18. A legislative amendment, though made with retrospective effect has been held not to justify a recourse to the revisional power of the Commissioner under Section 263 of the Income Tax Act in Commissioner of Income Tax V/s. Max India Limited. Counsel for the Revenue sought to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the reasons which are found in support of the reopening of the assessment. These reasons cannot be allowed to be supplemented on a basis which was not present to the mind of the Officer and could not have been so present on the date on which the power to reopen the assessment was exercised. We, therefore, hold that the principle laid down by the Supreme Court in Max India (supra) would be attracted to the present case. Consequently, it is evident that the order of the Assessing Officer with reference to the computation of book profits under Section 115JB was at the least a probable view and as a matter of fact the correct view to take in view of the decision of the Supreme Court in HCL (2008) 305 ITR 409.. It is well settled that the law laid down by the Supreme Court is declaratory of the position as it always stood. In any event, as we have noted, the view of the Assessing Officer was supported by the interpretation placed even contemporaneously in the judgment of this Court in Echjay F o r g i n g s ( 2 0 0 1 ) 2 5 1 I T R 1 5 ( B om) and in the judgments of the Delhi High Court in Eicher (2006) 287 ITR 170 and HCL (2007) 292 ITR 299.. In the circumstances, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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