TMI Blog2010 (6) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequently, notice u/s. 143(2) was issued when the case was selected for scrutiny. The Assessing Officer called for various details during the course of assessment proceedings and noted that the assessee has debited various expenses. He further noted that in the Annexure/Schedule 12, para 4 to the audit report the auditor has mentioned that few bills were missing as per separate letter written and the partners have assured that these payments were genuine and duplicate bills will be obtained as the same are misplaced. The Assessing Officer asked the assessee to furnish the details of the same and further asked to identify such expenses. The assessee submitted before the Assessing Officer that none of the expenses was claimed by the assessee. On being questioned by the Assessing Officer as to why the books of account should not be rejected, it was submitted that the books are written and maintained with all the vouchers and majority of the expenses are incurred by cheques and are duly accounted for and based on these books the return was filed. However, the Assessing Officer rejected the explanation given by the assessee and held that though the project has been completed the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in A.Y. 2003-04 also which is similar to that of A.Y. 2005-06. It was accordingly requested that the delay in filing of the appeal be condoned. 6. However, the CIT(A) was not satisfied with the explanation given by the assessee. He noted that the Assessing Officer has already disallowed the returned loss of Rs.4,39,658 because the assessee was wrongly claiming that its project was incomplete. Further considering the profit during the year on sale of flats at Rs.3 lakhs and after granting deduction for expenses at Rs.1,70,899, the Assessing Officer had computed the total income at Rs.1,29,101. The Assessing Officer has simultaneously initiated penalty proceedings u/s. 271(1)(c) of the Act. The Assessing Officer had also initiated the penalty proceedings u/s. 271(1)(c) of the Act on account of wrong claim of depreciation on motorcar purchased in the name of one of the partners. Since the assessee did not choose to file an appeal against the assessment order, it to proves that the decision not to file the appeal was not only intentional but the same was taken with full conscience. Later when the assessee decided to file an appeal against the assessment order for A.Y. 2005-06, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the following decisions: a. M/s. Barmag India Pvt. Ltd. vs. Dy. CIT, ITA No. 4846/M/2005, A.Y. 1999-2000 date 25.6.2009. b. State of Nagaland vs. Lipok AO, 2005 (183) E.L.T. 337 (SC). c. Angela J. Kazi vs. ITO, (2006) 10 SOT 139 (Mum). d. Earthmetal Electricals P. Ltd. vs. ITO (2005) 4 SOT 484 (Mum). 8. The learned DR, on the other hand, strongly supported the order of the CIT(A). He submitted that it was the plea of the assessee before the Assessing Officer that to buy peace, it did not file an appeal and was willing to pay the taxes. Now when the penalty u/s. 271(1)(c) was confirmed that the assessee is filing an appeal against the assessment order. He submitted that the assessee has to explain each day of delay since in the instant case the CIT(A) has given a clear cut finding that the assessee has not advanced sufficient cause for not filing the appeal within the prescribed time period. Therefore, the delay was rightly not condoned by the CIT(A). He accordingly submitted that the grounds raised by the assessee may be dismissed. 9. I have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the quantum assessment. Under those circumstances the delay of 410 days was condoned but in the instant case the delay is 1 year and 11 months and the assessee has not filed the appeal immediately after the penalty u/s.271(1)(c) of the Act was confirmed by the CIT(A). Therefore, the decision of the Tribunal in the case of Barmag India Pvt. Ltd. is not applicable. 11. In the case of State of Nagaland vs. Lipok AO, reported in [2005 (183) ELT 337 (SC)] the Hon ble Supreme Court condoned the delay infilling of the appeal by the State Government holding that some latitude is permissible due to procedural red-tape in Government functioning and also on account of that if appeal is dismissed public interest suffers. It was held in the said decision that though standard of proof of sufficient cause is not different in case of State and private citizen, they cannot be put on same footing as individual would always be quicker in taking decision. However, in the instant case the assessee has not taken quick decision in filing of the appeal although he was aware of the consequences. Therefore, the above decision, in our opinion, does not help the assessee. 12. As regards the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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