TMI Blog2017 (6) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Years out of owned funds and thus the assessee has not incurred any expenditure in relation to the investment in group companies. - ITA No. 114/Mum/2013, C.O. No. 215/Mum/2015, ITA No. 113/Mum/2013, C.O. No. 216/Mum/2015 - - - Dated:- 5-1-2017 - Shri Joginder Singh, Judicial Member And Shri Jason P. Boaz, Accountant Member Revenue by : Shri T.A. Khan -DR Assessee by : Shri Sunil M. Lala ORDER Per Joginder Singh (Judicial Member) The Revenue as well as the assessee is aggrieved by the impugned orders of the Ld. First Appellate Authority, Mumbai, dated 23/10/2012 and 25/10/2012 respectively for Assessment Years 2008-09 and 2009-10. Thus, the Revenue is in appeal and the assessee has preferred cross objections for the respective Assessment Years. 2. First, we shall take up the appeal of the Revenue for Assessment Year 2008-09 (ITA No.114/Mum/2013), wherein, the only ground raised pertains to holding that section 14A of the Income Tax Act, 1961 (hereinafter the Act) cannot be applied to the expenditure, incurred in relation to tax free dividend income as there was no tax free dividend income was earned/received by the assessee, which is contrary to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer while framing the assessment u/s 143(3) of the Act on 20/12/2011 made disallowance of ₹ 4,55,99,525/-. 2.3. The assessee felt aggrieved and thus filed appeal before the Ld. Commissioner of Income Tax (Appeal), challenging the disallowance made u/s 14A of the Act r.w.r 8D of the Rules, by claiming that assessee did not earn any exempt income, during the year and thus no disallowance is warranted u/s 14A r.w.r-8D. After considering the factual matrix and the case laws, relied upon by the assessee, the disallowance, made by the Assessing Officer, was deleted. The Revenue is aggrieved and is in appeal before this Tribunal. 2.4. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, the ld. DR did not controvert the claim of the assessee that no exempt income was earned by the assessee, which does not form part of the total income, thus, we find force in the argument of the ld. counsel for the assessee and the conclusion of the Ld. Commissioner of Income Tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/02/2009 dismissed the appeal of the Revenue. The case of the assessee further find support from the decision of the Tribunal in SM Energy Technik and Electronics Ltd. vs DCIT (2015) 61 taxman.com 448 (Mum.), Quality Engineering and Software Technologies Ltd. vs DCIT (2015) 152 ITD 320 (Bang.) and Anriya Project Management Services Pvt. Ltd. vs DCIT (TS-99-ITAT-2015)(Bang.). Considering the totality of facts and the judicial pronouncements, discussed hereinabove, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal). It is affirmed, resulting into dismissal of appeal of the Revenue. 3. Now, we shall take up the appeal of the Revenue for Assessment Year 2009-10( ITA No.113/Mum/2013), wherein, the direction to the Assessing Officer to delete the disallowance of ₹ 69,70,878/- made u/s 14A r.w.r 8D of the Rules has been challenged. The ld. DR contended that the Ld. Commissioner of Income Tax (Appeal) did not consider the decision in M/s Godrej and Boyce Mfg. Ltd. (2010) 328 ITR 80 (Bom.). On the other hand, the ld. counsel for the assessee, conclusion arrived at in the impugned order. 3.1. We have considered the rival submissions and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for condonation of delay, supported by an affidavit, on the reasoning/explanation contained therein. On the other hand, the ld. DR contended the delay may not be condoned as the assessee has to explain the reasons of delay of each day. 4.1. We have considered the rival submissions and perused the material available on record. In view of the assertions made by the ld. respective counsel, so far as, condonation of delay is concerned, no doubt filing of an appeal/cross objection, is a right granted under the statute to the assessee/department and is not an automatic privilege, therefore, the assessee is expected to be vigilant in adhering to the manner and mode in which the appeals/cross objections are to be filed in terms of the relevant provisions of the Act. Nevertheless, a liberal approach has to be adopted by the appellate authorities, where delay has occurred for bona-fide reasons on the part of the assessee or the Revenue in filing the appeals. In matters concerning the filing of appeals, in exercise of the statutory right, a refusal to condoned the delay can result in a meritorious matter being thrown out at the threshold, which may lead to miscarriage of justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atil vs. Shantaram Baburao Patil 253 ITR 798 held that the court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause , the principle of advancing substantial justice is of prime importance. The court held that the expression sufficient cause should receive liberal construction. 4.4. The decision of the Tribunal in People Infocom Private Ltd. v/s CIT (ITA No.210/Mum/2013) order dated 19/05/2016, M/s Neutron Services Centre Pvt. Ltd vs ITO (ITA No.1180/Mum/2012) order dated 18/02/2016, Shri Saidatta Coop-. Credit Society Ltd. v/s ITO (ITA No.2379/Mum/2015) order dated 15/01/2016 and Mr. Nikunj Barot (Prop. Enigma) vs ITO (ITA No.4887/Mum/2015) order dated 06/01/2016, wherein, substantial delay was condoned, supports the case of the present assessee. Having made the aforesaid observation and various decisions discussed hereinabove, including from Hon ble Apex Court, the circumstances narrated by the assessee, wherein, he has stated the reasons which caused the delay, therefore, the delay is condoned. 5. So far as, the merits of the cross objections are concerned, the ld. counsel for the assessee fairly ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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