TMI Blog2015 (11) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... NO.9188/Mum/2010, ITA NO.9189/Mum/2010 - - - Dated:- 30-9-2015 - Shri Amit Shukla, Judicial Member, and Shri Ashwani Taneja, Accountant Member For The Assessee : Shri Nishan Thakkar (AR) For The Revenue : Shri S. S. Kumaran (DR) ORDER Per Ashwani Taneja (Accountant Member): These appeals have been filed by the assessee against the common order of Ld. Commissioner of Income Tax (Appeals)-32, Mumbai ( in short CIT(A) ) dated 11.12.2009 for the assessment years 2003-04, 2004-05 2005-06 decided against the assessment order passed by the Assessing Officer (in short AO ) u/s 143(3) of the Act. 2. Following Grounds have been raised by the assessee along with appeal memo: (I) In ITA No.9187/Mum/2010 For A.Y. 2003-04: i. The CIT(A) erred in upholding the validity of the notice under section 148 of the Act and the proceedings pursuant thereto. ii The CIT(A) erred in confirming the addition of ₹ 10,96,600/- on account of alleged unexplained cash credit. iii. The CIT(A) erred in confirming the addition of ₹ 10,000/- on account of alleged interest received but not offered to tax. (II) In ITA No.9188/Mum/2010 For A.Y. 2004-05: i. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient or reasonable cause for delay in filing of the appeal. Thus, we have to first examine, whether there was sufficient or reasonable cause with the Assessee for delay in filing these appeals before the Tribunal. 3.3. We have heard both the parties on this issue. It is seen by us that in the affidavit filed before us, copy which was available with Ld. DR since earlier dates, it has been stated by the Assessee, on oath, that the delay is inadvertent and occurred as a result of compelling circumstances, as have been narrated in detail in the petition for condonation of delay filed by the Assessee. Further, these facts and circumstances have been narrated in the aforesaid affidavit filed by the Assessee. Relevant extracts from this affidavit, are reproduced below for the sake of ready reference: 4. I affirm that I, along with my wife, am in management and control of 2 companies, viz., Senzo Engineering Pvt. Ltd. and Saino Engineering Pt. Ltd. Both these companies have, in the financial year ending 31st March 2010 (i.e.financial year 2009- 2010), suffered severe financial crisis and their operations have had to be closed down. Hereto annexed and marked EXHIBIT - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or filing of the appeal was inadvertently missed and the filling of the appeal could not be done in time. 3.4. After hearing both the sides and having gone through the material placed before us for the purpose of ascertaining the facts properly, we asked Ld. DR specifically, if there was anything wrong in the facts narrated by the Assessee in its petition or affidavit, wherein certain averments have been made and facts have been deposed on oath. In response to our query, Ld. DR stated, fairly, that he was not able to point out any specific mistake or error in the factual submissions made by the Assessee in these two documents. However he opposed condonation on the ground that Assessee took this matter casually, and delay in filing these appeals was as a result of negligence on the part of the assessee, therefore, under these circumstances, the Assessee should not be given any special privilege, and there should not any liberal approach in granting condonation to the Assessee. 3.5. On the other hand, the Ld Counsel pleaded on behalf of the Assessee that the Assessee was heavily engrossed in certain matters, of serious nature, pertaining to closure of business of two companies, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practical difficulties arising as a result of the closure of these units. Thus, under these circumstances, delay in filing of appeal by the assessee cannot be presumed to be solely on account of his negligence or casual approach, as suggested by the Ld DR. Thus, contention of the Assessee that, apparently, there were compelling circumstances, due to which, delay occurred in filing of these appeals, can be accepted. Thus, the next issue to be decided now would be whether the aforesaid reasons, constraints and compelling circumstances etc. would form sufficient or reasonable cause, so as to enable the assessee to get condonation of delay in fling of these appeals. In this regard we deem it appropriate to get guidance from landmark judgment of Hon ble Supreme Court in the case of Mst Katiji [1987] 167 ITR 471. It has been held by Hon ble Supreme Court in this case that sufficient cause for the purpose of condonation of delay should be interpreted with a view to do, even handed justice on merits in preference to approach which scuttles the decision on merits and it was further held that powers of condonation of delay is conferred with a view to enable the courts to do substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessee before the Tribunal. The appeals are now taken up for disposal on merits. 4. It is seen by us, that Ground No.1 is common in all the three appeals, wherein the assessee has challenged the validity of notice u/s 148 and proceedings of reopening u/s 147 of the Act. In this regard, it is seen by us that perusal of the assessment order shows that Assessee has not taken up any objection or challenge, with respect to notice u/s 148 or with respect to validity of reopening of the case u/s 147, before the AO, during the course of assessment proceedings. However, in these appeals before the Ld. CIT(A), the Assessee had taken specific ground in this regard as Grounds No.1 2 along with appeal memo filed in Form No.35 before the Ld. CIT(A). These grounds are reproduced herein: 1.The Assessing Officer erred in assuming jurisdiction under section 148 read with section 147 of the Act. 2. The reassessment is unlawful, invalid and the order passed pursuant to the notice under section 148 is illegal and deserves to be quashed. 4.1. In addition to the above in the written submissions filed before the Ld. CIT(A), the assessee made following submissions before the Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee on merits. In addition to that, Ld counsel has drawn our attention upon the additional evidences filed by the assessee and requested that these evidences should be admitted in the interest of justice, as these are very crucial for adjudication of these appeals. The application for admission of additional evidences was read before us. On the other hand, Ld DR has argued that since Assessee has not properly taken up grounds with respect to reopening, these grounds cannot be decided here now. However, Ld. DR was fair enough to state that he would have no objection and these matters are sent back to the file of AO for re-adjudication. 4.4. We have gone through the submissions made by both the sides and legal position in this regard. It is seen by us that grounds with regard to validity of reopening go to the root of the matter. These are jurisdictional grounds. The AO can assume jurisdiction to frame reassessment orders only after reopening of the case strictly within the frame work of the provisions of reopening, as contained in sections 147 to 151 of the Income Tax Act r.w.s.143(2) and 143(3) of the Income Tax Act 1961. These Grounds are purely legal grounds, and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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