Oswal Machinery Ltd.,, Ahmedabad vs Assessee

Oswal Machinery Ltd, Asst. Commissioner of 143/B, GIDC Estate, Income Tax Vithal Udyognagar, Vs Anand Circle, Anand Anand PAN: AAAC0312E (Respondent) (Appellant)

Assessee by: Shri Anil R. Shah, A.R. Revenue by: Shri B.L. Yadav, Sr.D.R.

Date of hearing : 24-12-2014 Date of pronouncement : 16-01-2015

आदे श/ORDER

PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:-

This appeal is filed by the assessee against the order of CIT(A)-IV, Baroda dated 26-09-2002 for A.Y. 1998-99.

I.T.A No. 2867/Ahd/2010 A.Y. 1998-99 Page No 2 Oswal Machinery Ltd. vs. ACIT

2. The facts as culled out from the material on record are as under.

3. Assessee is a company stated to be engaged in the business of manufacturing of material handling equipments. Assessee filed its return of income for A.Y. 1998-99 on 30-11-1998 showing loss of Rs. 3,84,800/-. The case was selected for scrutiny and thereafter the assessment was framed u/s. 143(3) vide order dated 20-03-2000 and the total income was determined at Rs. 13,92,690/- by making addition of Rs. 15,32,253/- on account of bogus cash credits and Rs. 1,80,055/- on account of denial of claim of depreciation on certain assets which were not put to use. On the aforesaid additions made, AO vide order dated 29-09-2000 levied penalty u/s. 271(1)(c) of Rs. 5,99,310/-. Aggrieved by the penalty order of AO, the matter was carried before the Ld. CIT(A) who vide order dated 26-09-2002 granted partial relief to the assessee by deleting the penalty on depreciation but upheld the penalty on the addition with respect to cash credits. Aggrieved by the aforesaid order of Ld. CIT(A), Assessee is now in appeal before us and has raised the following grounds:

"1. The Ld. CIT(A) has erred both in Law and in fact in upholding the order of the Assessing Officer levying Penalty u/s.271(l)(c) of Rs. 5,36 239/-

It is submitted by your Appellant that he has not "Concealed" any Income "or Furnished inaccurate particulars of such Income" and therefore Penalty is not leviablc on facts of the case and as per provisions of Law.

2. It is also submitted by your Appellant that the Assessing Officer has not recorded ''Satisfaction of Concealment before initialing penalty proceeding and if recorded copy thereof is not given to the Appellant and therefore the very basis of levy of Penalty is vitiated and be cancelled.

3. It is further submitted by your Appellant that the "Show Cause Notice issued by the Assessing Officer is vague, capable of Two views and levy of penalty is for both alleged offences viz:

"Concealment of Income and for "Furnishing Inaccurate particulars of such Income".

I.T.A No. 2867/Ahd/2010 A.Y. 1998-99 Page No 3

Oswal Machinery Ltd. vs. ACIT

It is submitted that the Penalty which is levied for both the offence is contrary to the provisions of Law as held by the Gujarat High Court in the case of New Surathia Engg. Co. vs. CIT 282 ITR Pag 642 and therefore the Penalty be cancelled.

4. Your Appellant further submit that the Penalty of Rs. 5,36,230 is related to the addition u/s. 68 of the Act and is on account of not accepting the Explanation given by the Appellant and not for ''Concealing Income" or "Furnishing inaccurate particulars such Income".

It is therefore submitted that the penalty is not leviable as held in the case of Reliance Petrochem Pvt. Ltd. 322 ITR Page 158(SC) and in case of National textiles vs, CIT 249 ITRP.125 (Guj)."

3.1 The Registry has informed that the appeal has been filed late and is time barred by 2,867 days. Assessee has filed an affidavit of Dharmshi B Shah wherein inter alia it has been submitted that on the advice of the Chartered Accountant of the Company, the assessee does not pursue the matter further and did not file the appeal against the quantum additions made by AO. Later on receipt of show cause notice from the TRO for charging of interest u/s. 220(2) sought advice and it was advised to file the appeal and there was delay in filing the appeal. He therefore submitted that the delay in filing the appeal was on account wrong advice and therefore the delay be condoned. Ld. DR on the other hand submitted that though the order of Ld. CIT(A) was received by the assessee on 08-10- 2002, Assessee has filed appeal after more than nine years. The delay has not been explained and therefore the delay in filing of appeal should not be condoned and the appeal be dismissed.

4. We have heard the rival submission and perused the material on record. It is an undisputed fact that the order dismissing the appeal against penalty levied u/s. 271(1)(c) was passed by Ld. CIT(A) on 26-09- 2002 and as per form 36 filed by the Assessee, the order of Ld. CIT(A) was communicated to Assessee on 08/10/2002. The present appeal has I.T.A No. 2867/Ahd/2010 A.Y. 1998-99 Page No 4 Oswal Machinery Ltd. vs. ACIT

been filed on 13-10-2010 which ought to have been filed before 07-10- 2002 and thus there is delay of 2867 days in filing the appeal. We find that in the affidavit it has inter alia been averred that due to the wrong advice of the Chartered Accountant of the company the appeal was not filed. Further no details about the date as to when the advise was sought from the Chartered Accountant and when the Assessee was advised not to file the appeal has been placed on record. Further even no affidavit of the Chartered Accountant has been placed on record to demonstrate that he has advised for not filing of appeal. Further the assessee has also not explained the inordinate delay in filing the appeal. We therefore find no reason to condone the delay. Thus the condonation application for delayed filing of appeal is rejected and therefore the appeal is dismissed.

5. In the result, the appeal of the assessee is dismissed.

Order pronounced in open court on the date mentioned hereinabove at caption page

Sd/- Sd/-

(G.C. GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER Ahmedabad : Dated 16/01/2015 ak

आदे श कȧ ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file.

By order/आदे श से, उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद