TMI Blog2010 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... er judgment on the decision of the CIT 3. Grounds of appeal no.1 is general in nature and since no specific material was brought on record to substantiate this ground before us except grounds of appeal no.2 and 3. Therefore, no separate adjudication is required in respect of grounds no.1 as the same is dependent on the outcome of the grounds of appeal no.2 and 3 and accordingly dismissed as academic in nature. 4. Grounds of appeal no.2 regarding relief claimed by the assessee of ₹ 5 lakhs being the amount of loan received was wrongly assessed as income of the assessee. 5. Brief facts related to this ground are that the assessee filed the return of income on 1.11.2004 showing total income of ₹ 1,00,77,620/-. The assessment was completed u/s 143(3) vide order dated 28.08.2006. Subsequently, the Commissioner of Income Tax proposed to revise the assessment by issuing a show cause notice u/s 263 dated 3.11.2006. The Commissioner has proposed the revision of the assessment merely on two grounds as under: i) it is observed from the records that the assessee has taken a loan of ₹ 30 lakhs from Shri Navinchandra Distributors Pvt limited and has been used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income. 8. Before us, the learned AR of the assessee has submitted that the assessee has mistakenly admitted ₹ 5 lakhs as professional income instead of showing as part of the loans. He has submitted that during the course of assessment proceedings in consequence to the revision order passed by the CIT u/s 263, the assessee has specifically made a claim and explain that the assessee has taken a loan of ₹ 35 lakhs from Shri Naraindas Makhija of Navchitra Distributors P Ltd. He has referred the details given by the assessee in the letter dated 20.10.2008 as reply to the notice issued by the AO dated 7.10.2008 and submitted that the assessee has given all the details of loans taken by the assessee on total amount of ₹ 35 lakhs. These details included the cheques, dates and amount on different dates and all thee cheques were deposited by the assessee in the UTI Bank account no.70869. The AO has verified the claim of the assessee during the remand proceedings as ordered by the Commissioner. Vide the remand report dated 4.3.2009, the AO has accepted the claim of the assessee as factually correct and valid about the loan of ₹ 35 lakhs and specifically ₹ 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buttal, the learned AR has submitted that the Commissioner of Income Tax, while passing the revision u/s 263 directed the AO to verify the issue of loan, insurance and depreciation, therefore, the entire issue of loan was required to be examined by the AO and the claim of the assessee is well within the scope of directions given by the Commissioner of Income Tax in the order dated 19.02.2008 passed u/s 263 of the Act. 11. We have considered the rival contentions and relevant record. The undisputed fact is that the assessee has admitted the amount of ₹ 5 lakhs as professional income in the return of income which was turned out to be a loan amount as accepted by the A.O. in the remand report dated 04.03.2009. It is evident from the impugned order of CIT(A) that the claim of the assessee was accepted in principle in view of the remand report of the A.O. but the same was disallowed on the ground that without revised return of income the same cannot be allowed. The CIT(A) has relied upon the decision of Hon ble Supreme Court in case Goatz India Limited (supra). It is true that Hon ble Supreme Court in case Goatz India Limited (supra) held that the A.O cannot entertain the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... car then the same should be excluded from the cost of the assets for the purposes of granting the depreciation in view of the fact that the insurance claim has been allowed. This issue is decided in favour of the assessee. 15. In the result the appeal of the assessee is allowed. ITA No. 2019/Mum/2010 This appeal by the assessee is directed against the order dated 16.03.2009 of the learned CIT(A)-XI, Mumbai for the assessment year 2004-05 arising from the assessment order passed u/s 143(3) for the assessment year. 16. There is a delay of 240 days in filing the present appeal. The assessee has filed the application for condonation of delay along with the affidavit. The assessee has also filed the affidavit of her representative Shri Anil Shekhri, Chartered Accountant, who had represented the assessee before the revenue authorities. 17. We have heard the learned AR as well as the learned DR and carefully perused the record including application of condonation of delay as well as affidavit in support thereof. The ld. AR of the assessee has submitted that the main grievance of the assessee in this appeal is the assessment of ₹ 5 lakhs as income, in fact, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due to the bonafide belief and mistake on the part of the Representative of the assessee and therefore the delay is due to pursuing the issue in the other proceedings which is a sufficient cause for condonation of the delay. He has relied upon the following decisions: 1 318 ITR (AT) 356(Mum) Dr.Mrs.Sudha S Trivedi V/s ITO 2 (39 TTJ 54) (Ahd) Sakar Patel Vibhag Jungle Kamdar Sahakari Mandli Ltd V/s ITO 3 100 ITD 87 (Chennai) People Education and Economic development society V/s ITO 4 167 ITR 471(SC) Collector Land Acquisition V/s Mst Katji 5 (1998) 7SCC 123) N Balakrishnan V. M Krsihnamurthy 18. The learned AR has pleaded that the delay was not because of any malafide or deliberate intention, but due to pursuing the legal remedy in the other proceedings and acting under the bonafide belief that the representative of the assessee was correctly advising the assessee and subsequently counsel who is representing before this Tribunal has advised to file the appeal. 19. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... devise to cover an ulterior purpose such as latches on the part of the litigant or an attempt to save limitation in an underhand way. No doubt the assessee has to believe and repose faith in their representative/advocate after having paid the fee and given the requisite instructions to his/her Representative. A litigant may be justified in believing that his/her Representative would discharge his professional obligation. Therefore in the case, where it is brought on record that the party has done everything in its power which is necessary for legal proceedings, the court should be liberal in considering the sufficient cause and should lien in favour of such party. However, the litigant does not stand to benefit by filing an appeal at a belated stage. Whenever substantial justice and technical consideration are opposed to each other, cause of substantial justice has to be preferred. Court should take justice oriented approach while deciding the application for condonation of delay . It does not mean a litigant has license to approach the court at its will. 21. In the case of N Balakrishnan V/s M Krishnamurthy reported in (1998) 7, SCC 123 vide paragraphs 9 and 13 have held as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal arising from the proceedings u/s 263. Therefore, we are satisfied with the explanation given by the assessee that there is no malafide or willful motive on the part of the assessee for not filing the appeal within the time. Accordingly, the delay is condoned. 23. The assessee has raised following grounds in this appeal: 1. the ld. CIT(A) has erred in law and in facts in passing the appellant order, which is invalid and bad in law: 2. the ld. CIT(A) ought to have held that the assessment of ₹ 5 lakhs as professional receipt was not in accordance with law. The ld. CIT(A) further ought to have held that the AO was not justified in not reducing the professional income by the said amount of ₹ 5 lakhs 3. the ld. CIT(A) has erred in law and in facts in confirming the disallowances of various expenditure aggregating to ₹ 5,72,637/- 4. the ld. CIT(A) has erred in law and in facts in setting aside the issue relating to depreciation on car to the file of the AO. The ld. CIT(A) ought to have adjudicated the issue and allowed the claim as it was in accordance with law and all the facts were available before him. 5. The appellant craves leave to add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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