TMI Blog2019 (8) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 17th December 2009, passed by the learned Commissioner of Income Tax (Appeals) 22, Mumbai, pertaining to the assessment year 2005 06. 2. Before we proceed to deal with the substantive issue raised in the present appeal, it is necessary to observe that there is a delay of 748 days in filing the appeal. Initially, the Tribunal while hearing the appeal on 10th April 2015 was of the view that the cause of delay shown by the assessee is not satisfactory, hence, vide order dated 5th June 2015, dismissed assessee s appeal in limine without condoning the delay. The assessee challenged the aforesaid decision of the Tribunal before the Hon'ble Jurisdictional High Court. The Hon ble High Court while deciding assessee s appeal in ITA no.407/2016, vide order dated 19th December 2018, set aside the order passed by the Tribunal and restored back the issue of condonation of delay for reconsideration with liberty to the assessee to file additional affidavit explaining the cause of delay. The observations of the Hon'ble Jurisdictional High Court are as under: 6 We have perused the Affidavit filed on behalf of the assessee before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That I am the director and Chairman of appellant-Company having its office at 609, Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai-4000026. 2. That for Assessment Year 2005-06, the appellant-company had preferred an appeal before the Ld. Commissioner of Income Tax (Appeals) against the order passed by the Assessing Officer Mumbai. 3. That, the order in respect of the above said appeal before the CIT(A) was passed on 17.12.2009 and was received by the appellant-company on 02.01.2010. 4. That the appellant company had decided to file appeal before the Hon'ble Income Tax Appellant Tribunal (ITAT) against the above order of CIT(A). Therefore, immediately, after receiving the order, a copy of the same was forwarded to our tax consultant for further action. 5. That the said appeal before the Hon'ble ITAT for AY 2005-06 had to be filed within 60 days from the date of receipt of the order of the CIT(A), i.e., on or before 03.03.2010. However, the same had been filed by appellant-company on 20.03.2012. 6. Thus there was a delay of 742 days in filing of appeal before the Honorable Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Assessment Year 2005 06 remained unfiled in his office drawer. 12. That since there was no demand pending for AY 2005-06, the issue of non-filing of appeal did not come to notice of the company sooner or became apparent. 13. That, upon realizing at the time of filing of appeal for AY 2007-08, that the appeal for AY 2005-06 has not been filed yet, matter was immediately brought to the notice of Board of directors. As the due date for filing of appeal for AY 2007-08 was approaching, appellant first filed appeal for AY 2007-08 on 21.02.2012. Simultaneously, appellant approached its tax consultant for filing of appeal for AY 2005-06 with condonation of delay. 14. That appeal for Assessment Year 2005-06 got filed within one month from the date of filing of appeal for Assessment Year 2007-08 i.e. on 20.03.2012. The appellant company took one-month time after filing appeal for assessment year 2007-08 because consultation regarding the further course of action to be adopted as the appeal was delayed took some time. Further, time was also required for preparation of affidavits for condonation of delay, which were also filed alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition to the averments made in the affidavits, the learned Authorised Representative submitted, there was no reason for not filing the present appeal as the issue has been decided in favour of the assessee in assessee s own case for the assessment year 2004 05. He submitted, since the assessee had a strong case on merit, the delay in filing the appeal should be condoned in the interest of justice and the appeal should be decided on merit. In support of such contention, he relied upon the following decisions: i) Hathway C Net Pvt. Ltd. v/s TRO (TDS), [2018] (2) TMi 179 ITAT Mumbai; and ii) Prima Paper Engineering Pvt. Ltd. v/s CIT, [2013] (7) TMI 939 Bombay HC. 5. The learned Departmental Representative strongly opposing condonation of delay submitted, in the additional affidavit also, the assessee has not made out a reasonable cause for condoning the delay. Thus, he submitted, assessee s appeal should be dismissed in limine without condoning the delay. 6. We have considered rival submissions and perused material on record. As discussed earlier, the Hon'ble Jurisdictional High Court has granted liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 10B of the Act by combining the profit/loss of both the Units which resulted in net loss of ₹ 2,01,71,429. Though, the assessee challenged the aforesaid decision of the Assessing Officer before learned Commissioner (Appeals), however, learned Commissioner (Appeals) upheld the decision of the Assessing Officer. 9. The learned Authorised Representative submitted, the issue has been decided in favour of the assessee in its own case for the assessment year 2004 05. Whereas, the learned Departmental Representative relied upon the observations of learned Commissioner (Appeals) and the Assessing Officer. 10. We have considered rival submissions and perused material on record. The short issue before us is, whether the deduction under section 10B of the Act has to be allowed Unit wise or after aggregating the profit/loss of both the Units? In our view, the disputed issue does not require much deliberation as identical issue arose in assessee s own case in assessment year 2004 05. While deciding the issue in ITA no.7076/ Mum./2008, dated 10th June 2015, the Tribunal, following the decision in assessee s own case as well as the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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