TMI Blog2017 (1) TMI 1767X X X X Extracts X X X X X X X X Extracts X X X X ..... ts relating to the business activities of the assessee qua the statement recorded at the time of survey, the assessee under a mistaken belief has accepted to withdraw the claim of deduction which she was otherwise legally entitled. Commissioner should not have invoked the powers vested upon him u/s. 263 of the Act merely on the strength of the statement recorded at the time of survey proceedings. A conspectus reading of the statement recorded at the time of survey shows that there is no concession on fact. The concession is only in relation to the law and that too was under a wrong belief. Commissioner further erred in directing the A.O. to withdraw the claim of deduction in subsequent assessment years also i.e. A.Ys. 2008-09, 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, an order of assessment was made u/s. 143(3) dated 29.12.2009 assessing the total income at ₹ 6,02,610/- as against the returned income of ₹ 4,43,330/-. Thereafter, the Ld. Commissioner of Income Tax - I, Baroda passed an order u/s 263 directing the Assessing Officer to recompute the income by disallowing the deduction of an amount of ₹ 199.69 lakhs as pertaining to website / software development and its maintenance. The said direction was given consequent upon certain concessions made by the appellant in the course of survey proceedings u/s. 133 A. The appellant had made the concessions without understanding the intricacies of the business as also the technicalities related thereto. Since the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position with respect to the rights of the appellant in law, the appellant is now preferring the present appeal which is belated on account of genuine and bonafide reasons as explained above. The present appeal, in accordance with law, was required to be filed on or before 07.12.2010 i.e. within 60 days from the date of receipt of order on 08.10.2010 (as per memory). The impugned order was made following the action u/s. 263 is made based on the findings of the survey on 01.09.2010 wherein Shri Vijay Parmar, husband of the appellant had agreed to withdraw the claim made u/s. 10A in relation to the activity of website / software development In the circumstances, it is submitted that the delay which is bonafide may please be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional High court of Gujarat in the case of Jayvantsing N. Vaghela 40 teaxmann.com 491 in Tax Appeal No. 853 854 of 2013. 6. The Hon ble Supreme Court in the case of Collecteor, Land Acquisition, Anantnag vs. Mst. Katiji [1987] 2 SCC 107 has observed that ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to codone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 7. In the light of the aforementioned observations of the Hon ble Supreme Court, we condone the delay on merits of the case, rival s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on certificate to the assessee as exhibited at pages 41 to 51 of the paper book. 12. In the light of the nature of activities explained in the statement recorded during the course of the survey proceedings. Let us now consider the Notification No. 890(E) issued by the Government in reference to Section 10A(b)(i)(2), 10B(b)(i)(2) and 80HHE(b) and the same reads as under:- Notification : 890(E) Section(s) Referred : s. 10A(b)(i)(2), s. 10B(b)(i)(2), s. 80HHE(b) Statute: INCOME TAX Date of Issue: 26/9/2000 In exercise of the powers conferred by clause (b) of item (i) of Explanation 2 of section 10A, clause (b) of item (i) of Explanation 2 of section 10B and clause (b) of Explanation to section 80HHE of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the observations of the Hon ble High Court of Gujarat given in the case of S. R. Koshti in 276 ITR 165 and the same reads as under:- The authorities under the Income-tax Act, 1961 are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. When an Assessing Officer has adopted one of the courses permissible in law, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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