TMI Blog2018 (11) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the assessee was not liable to charge any interest on the same. Before us, the Revenue has utterly failed to bring any corroborative material on record to rebut the above finding of the learned Commissioner of Income-tax (Appeals). We, therefore, find no flaw in the order of the learned Commissioner of Income-tax (Appeals) and accordingly confirm the same.- Decided against revenue. - I. T. A. Nos. 574 /Indore/ 2002, 682 683 /Indore/ 2003, 395 and 413 /Indore/ 2007 and 262 263 /Indore/ 2008 (assessment years 1997-98 to 1999-2000 and 2002-03 to 2004-05) andC. O. Nos. 75 and 76 /Indore/ 2009. - - - Dated:- 27-5-2018 - Kul Bharat (Judicial Member) And Manish Borad (Accountant Member) For the Assessee : None For the Department : H. P. Meena ORDER 1. The assessee has filed the appeals for the assessment years 2002-03, 2003-04 and 2004, whereas the Revenue has filed the appeals for the assessment years 1997-98, 1998-99, 1999-2000 and 2003-04 and the assessee has also filed the cross-objections arising out of the Revenue's appeal Nos. 682 and 683/Indore/2003 for the assessment years 1998-99 and 1999- 2000. At the time of hearing, there was no represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record. The hon'ble Supreme Court in a decision in Balwant Singh (Dead) v. Jagdish Singh Civil Appeal No. 1166 of 2008 dated July 8, 2010 had the occasion to deal with the concept of condonation of delay and sufficient cause as contained in the Limitation Act. The Supreme Court, while dealing with various authorities on the subject, has culled out principles, which are reproduced hereunder : 15. We feel that it would be useful to make a reference to the judgment of this court in Perumon Bhagvathy Devaswom (supra). In this case, the court, after discussing a number of judgments of this court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, Code of Civil Procedure along with an application under section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the court held as under : '13. (i) The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that this judgment had been followed with approval by an equi-Bench of this court in the case of Katari Suryanarayana (supra) 16. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. We find that these appeals were filed by the assessee on August 10, 2008. It is evident from record that the present appeals were fixed for hearing on so many dates but on all the dates, either the assessee or the Revenue took adjournment. Finally, this appeal was fixed for May 31, 2018 and the notice for hearing was got served through the office of the learned Commissioner of Income-tax-Departmental representative but on this date also there was no representation on behalf of the assessee despite notice. This conduct of the assessee shows that the assessee is not interested in pursuing its appeals, therefore, it cannot be kept pending for adjudication for indefinite period. It was the duty of the assessee to make necessary arrangements for effective representation on the appointed date. Mere filing of appeal is not enough, rather it requires effective prosecution also. 13. In view of these facts, we are of the view that both the appeals of the assessee are liable for dismissal. Our view is supported by the following judicial pronouncements : (i) In the case of CIT v. B. N. Bhattachargee reported in [1979] 118 ITR 461 (SC) relevant pages 477 and 478) wherein their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disallowances of ₹ 13,54,091 and ₹ 79,896 made by the Assessing Officer in the matter of computation of eligible income. (v) Deleting the disallowance of ₹ 1,39,56,470 (export incen tives) made by the Assessing Officer in the matter of computation of eligible income comprised in the gross total income under section 80B(5) for the purpose of computation under section 80-IA. (vi) Deleting the disallowance of ₹ 12,15,250 (interest on term loan) made by the Assessing Officer in the matter of computation of eligible income comprised in the gross total income under section 80- IB(5) for the purpose of computation under section 80HHC. (vii) Deleting the disallowances of ₹ 33,53,447 made by the Assessing Officer in the matter of computation of eligible income comprised in the gross total income under section 80B(5) for the purpose of computation under section 80HHC. (viii) Deleting the disallowance of ₹ 2,91,34,000 (export incen tives) made by the Assessing Officer in the matter of computation of eligible income comprised in the gross total income under section 80B(5) for the purpose of computation under section 80HHC. (ix) De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax (Appeals) on the following grounds : On the facts and in the circumstances of the case, and in law, the learned Commissioner of Income-tax (Appeals) erred- (i) In holding that the assessee is entitled to deduction under section 80-IA on the entire eligible industrial income without reduc ing the export incentives. (ii) In allowing relief under the head interest on term loan of ₹ 29,73,072 for calculating deduction under section 80HHC. (iii) In holding that income from business should be considered while giving deduction under section 80HHC. (iv) In allowing relief under section 80HHC(3) as the Assessing Officer had not treated export incentives of ₹ 3,03,30,547. (v) In allowing further relief on export incentives of ₹ 8,88,47,220 while allowing deduction under section 80HHC(3). (vi) In giving relief relating to export turnover at ₹ 4,40,03,108 in respect of duty draw back and excise duty refund. 19. We have heard the learned Departmental representative and perused the material available on record. On going through the grounds raised by the Revenue in the abovecaptioned three appeals, we observe th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ground is against the Assessing Officer not treating export incentives of ₹ 3,03,30,547 utilised by the company for import of raw material as an item of export incentive as defined under section 28(iiib) and (iiic) while allowing deductions at 90 per cent. of the said amount as per the proviso to section 80HHC(3). The appellant contended that this issue has been adjudicated upon by the hon'ble Income-tax Appellate Tribunal, Indore Bench in the appeals of the assessee-company for the assessment years 1993-94 to 1996-97 in which after detailed discussion it held that export incentive utilised by the appellant-company for import of raw material duty free was an item of export incentive within the meaning of section 28(iib). ninety per cent. of the said amount requires to be considered while allowing deduction under the proviso to section 80HHC(3). Following the above decision of the hon'ble Indore Bench of the Income-tax Appellate Tribunal, this claim of the appellant is allowed. Ground No. 5.5 This ground is against no separately allowing deduction under section 80HHC on 90 per cent. of total export incentives of ₹ 8,88,47,220 as per the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to section 43B made by the Finance Act, 2003 retrospectively inspite of the facts that the amendment was made with effect from April, 2004. 3. On the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred in deleting the addition of ₹ 4,26,598 made by the Assessing Officer as interest income being not charged by the assessee on the loan advanced to Elixier Impex (P.) Ltd. 21. We have heard the learned Departmental representative and perused the material available on record. So far as the issues raised in ground Nos. 1 and 2 relating to provident fund and ESIC payments of ₹ 18,38,522 and ₹ 4,42,271, respectively are concerned, we find that while granting relief to the assessee, the learned Commissioner of Income-tax (Appeals) has given the following findings : That hon'ble Income-tax Appellate Tribunal, Indore Bench vide its order dated August 29, 2005 (Appeal No. I. T. A. No. 390/Indore/ 1999) in the case of Joint CIT v. Shree Balaji Industries has dealt with the omission of the said second proviso and held that the said amendment is retrospective in nature and accordingly contribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Elixir Impex Pvt. Ltd. is deleted. Thus the assessee is allowed relief of ₹ 4,26,598. 24. We have heard the learned Departmental representative and perused the material available on record. We find that the above finding of the learned Commissioner of Income-tax (Appeals) shows that the alleged account of Elixir Impex Pvt. Ltd. is a trade advance account and, therefore, the assessee was not liable to charge any interest on the same. Before us, the Revenue has utterly failed to bring any corroborative material on record to rebut the above finding of the learned Commissioner of Income-tax (Appeals). We, therefore, find no flaw in the order of the learned Commissioner of Income-tax (Appeals) and accordingly confirm the same. 25. In the result, the appeals of the assessee bearing No. 413/Indore/2007 and C. O. Nos. 75 and 76/Indore/2009 are dismissed being barred by limitation, I. T. A. Nos. 262/Indore/2008 and 263/Indore/2008 are dismissed for non prosecution, the Revenue's appeals bearing Nos. 574/Ind/2002, 582/Ind/2003 and 683/Ind/2003 are allowed for statistical purposes and the Revenue's appeal I. T. A. No. 395/Indore/2007 is allowed. 26. Order pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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