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11-03-2019, Shree Vijaylaxmi Trading, Section 254(1), 271(1)(c), Tribunal Mumbai

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2 months 6 days ago #8788 by amit
Section - 254(1), 271(1)(c), 249, 144
Order Date - 11-03-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - Shree Vijaylaxmi Trading Corporation
Respondent - ITO
Justice - PAWAN SINGH JM & N.K. PRADHAN AM
Citation - 319Taxpundit236
Appeal No. - ITA No. 675/Mum/2018
Asstt. Year - 2012-13

Order

PER : PAWAN SINGH

1. These two appeal by assessee are directed against the separate order of ld. Commissioner of Income-tax (Appeals)-28, hereinafter referred as ld CIT(A), Mumbai dated 13.10.2017 for Assessment Year 2012-13. In ITA No. 675/Mum/2018, the assessee has challenged the additions in the quantum assessment and in ITA No. 674/Mum/2018, the assessee has challenged the confirmation of penalty under section 271(1)(c) of the Act. In both the appeals, the ld. CIT(A) dismissed the appeals of the assessee under sub-section (3) of section 249 by not condoning the delay in filing appeal, resultantly the appeals were not admitted for hearing on merit. The appeal in quantum assessment was filed after 247 days of prescribed period of limitation and similarly the appeal on penalty levied under section 271(1)(c) was filed after 65 days of period of limitation. The ld. CIT(A) decided both the appeal by common order.

2. Brief facts of the case are that the assessee is a partnership firm engaged in the business of import and export of food grains, pulses and commodities. The assessee filed its return of income for Assessment Year 2012-13 on 30.09.2012 declaring income of Rs. 12,56,000/-. The assessment was completed under section 144 on 29.03.2015. The Assessing Officer while passing the assessment order made addition under section 68 of Rs. 1.25 Crore (approx), disallowance under section 40(a)(ia) of Rs. 40 Lakhs and further disallowed sundry creditors on adhoc basis @10% of Rs 4.54 Crore being Rs. 44.45 Lakhs. On appeal before the ld. CIT(A), the appeal of assessee was not admitted being filed after 247 days of prescribed period of limitation. The assessee filed an application for condonation of delay along with affidavit explaining the cause of delay. The application of assessee for condonation of delay was not allowed; thereby appeal of the assessee was dismissed in limine being not admitted. Similarly appeal against the penalty order levied under section 271(1)(c) was also filed after 65 days of prescribed period of limitation. The assessee raised identical grounds for condoning the delay as made in appeal for quantum assessment. The ld. CIT(A) not accepted the contention of assessee in condoning the delay, thereby the second appeal was not admitted and dismissed in limine. Thus, with these backgrounds, the assessee has filed both the appeals before this Tribunal.

3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the revenue and perused the material available on record. The ld AR of the assessee submits that the assessee filed detailed affidavit of partner of the assessee-firm. Copy of which is filed vide page no. 1 & 2 of Paper Book. The ld. AR of the assessee further submits that the submission filed before the ld. CIT(A) in support of condonation of delay is also filed vide page no. 3 to 5 of Paper Book. The ld. AR of the assessee further submits that assessment order passed under section 144 dated 29.03.2015 was received by assessee along with demand notice under section 156 on 09.04.2015. The Administrative Office of the Firm was situated at 101, Arihant Building CHS Ltd., 103 Bajaj Road, Vile Parle (W), Mumbai. All records related that the business including vouchers, invoices received, statements were kept in the Administrative Office. During the relevant Financial Year under consideration i.e. 2012-13, the assessee suffered huge business losses and assessee committed in business commitment. The bankers of assessee declared the assessee-firm and its partner as defaulter and the loan of assessee was declared as Non

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