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II. Direct Tax Case laws:
1.
Prashant Projects Ltd. v. Deputy Commissioner of Income-tax - 10(3),
Mumbai, ITA NO. 7167 (MUM.) OF 2011, DATE OF ORDER : 04/09/2013, ITAT –
MUMBAI.
If sufficient causes for delay in filing of appeal are presented,
discretion is available to the appellate authority to condone the delay
and admit the appeal. The expression 'sufficient cause' is not defined,
but it means whether it could have been avoided by the party by the
exercise of due care and attention
Basic principles of condonation of delay as explained by Tribunal under
a. If
sufficient causes for delay are presented, discretion is available to
the FAAs to condone the delay and admit the appeal. The expression
'sufficient cause' is not defined, but it means a cause which is beyond
the control of the assessee;
b. Any cause which prevents a person approaching the FAA within
given time limit is considered as a sufficient cause. The test whether
or not a cause is sufficient is to see whether it could have been
avoided by the party by the exercise of due care and attention;
c. In every case of delay, there is some lapse on the part of the
assessee. If there are no mala fides the FAA should consider the
application of the assessee. But when there is reasonable ground to
think that the delay was occasioned otherwise than a bonafide conduct,
then the FAA should lean against acceptance of the explanation;
d. Just because there was merit in the appeal filed by the
assessee, any amount of delay, however, negligently caused, couldn't be
condoned;
e. In the case of J.B. Advani & Co. (P.) Ltd. v. CIT [1969] 72
ITR 395 (SC) the Hon'ble Supreme Court had held that explanation of
delay for the entire period is necessary. The cause pleaded must fit in
the facts and circumstances of the given case and the explanation
offered regarding the delay occasioned by such cause should appeal to
reasons so as to get judicial approval;
f. The order of the FAA should disclose that he had applied his
mind to the question raised before it, when an application for
condonation of delay was made to consider whether a sufficient cause had
been made out by the assessee,
g. The application for condonation of delay should be supported by
an affidavit, showing that there is sufficient cause for condonation.
h. Condonation of delay cannot be accorded merely on sympathy or
compassion and the grounds offered have to be evaluated to test whether
the party in default had been guilty of conscious and deliberate
inaction, culpable negligence and inexcusable indifference to the period
of limitation mandatorily prescribed by law.
(Please click here to view the Judgment)
2.
Holcim (India) Pvt. Ltd. versus DCIT (OSD) Cir. 12(1), ITA Nos. 5123
& 5124/Del/2012, Date of Order 27.09.2013, ITAT – Delhi.
Whether
mere incorporation and receipt of share application money cannot be
said to be commencement of the business for claiming expenses in view of
S. 14A.
Held No.
That mere incorporation and receipt of share application money cannot
be said to be commencement of the business. Neither any interest income
has been earned from against advances nor any goods or services been
obtained. Moreover, the assessee has also not disclosed any dividend
income from its investment . Therefore, he disallowed the expenses
amounting to Rs. 8,75,35,452/- claimed in the P&L A/c.
Held that disallowances made u/s 14A were unwarranted as assessee has
not invested in shares for earning of dividend but acquired the
controlling interest in the respective companies for doing the business.
Ld. CIT(A) himself has admitted that assessee is doing the business and
the business of the assessee company has been set up, therefore, there
is no question that assessee has invested the funds for earning of
dividend.
(Please click here to view the Judgment)
3. Shri Arihant Jain versus Income Tax Officer, ITA No.1634/Del/2013, Date of Order : 27.09.2013, ITAT-Delhi.
Where assessee duly furnished PAN, B/s, COI, Confirmation and bank
account of creditor, whether it can be said that assessee has
discharged his initial onus.
Held Yes
Where, the assessee, apart from furnishing the permanent account
number of the creditor, has also furnished their balance sheet, copy of
income tax return, confirmation, bank account etc. The amount advanced
to the assessee is duly disclosed in the balance sheet of all the
creditors. Even the assessee has also explained the source of cash
deposited in the bank account of the creditors. The initial onus which
lay upon the assessee was duly discharged. If the Assessing Officer
wanted to examine the issue further, he could have very well issued
notice under Section 131, failing that it cannot be said that assessee
has not discharged the initial onus.
(Please click here to view the Judgment)
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