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M/s. Dawn India 411/412, Apeejay House, 130, B.S. Marg, Mumbai- 400 023 Vs. ACIT 12(1) Mumbai
August, 30th 2014
                          MUMBAI BENCH "D", MUMBAI
                    DR. S.T.M. PAVALAN, JUDICIAL MEMBER
                                 ITA No. 4055/Mum/2012
                                  Assessment Year: 2008-09
             M/s. Dawn India                       ACIT 12(1)
             411/412, Apeejay House,           Vs. Mumbai
             130, B.S. Marg,
             Mumbai- 400 023
                   (Appellant)                                  (Respondent)

                       Permanent Account No. :-AAAFD 2674 D

                                Assessee by     :   Shri Vijay Mehta
                                 Revenue by     :   Smt. Tripura Sundari

                         Date of hearing  : 04.08.2014
                    Date of Pronouncement : 28.08.2014



       This appeal filed by the Assessee is directed against the order of the
Ld.CIT(A)-23, Mumbai dated 20.03.2012 for the Assessment Year 2008-09.

2.     At the outset, it is observed that there is a delay of 10 days in filing the
appeal. In this connection, the assessee has filed a petition for condonation of delay
in the shape of an affidavit, sworn by the partner explaining the reasons for not
filing the appeal within the time period of limitation. The relevant portion of the
affidavit is extracted hereunder:

       "1.      M/s. Dawn India had filed an appeal to the Commissioner of Income Tax (Appeals)-
       23 Mumbai against the assessment order dated 20.12.2010 passed by the Asstt.
       Commissioner of Income Tax, Circle 12(1) Mumbai for Assessment Year 2008-09.
       2.       The Hon. Commissioner of Income Tax (Appeals)-23 disposed the appeal for
       Assessment Year 2008-09 vide appellate order No. CIT(A)-23/ACIT 12(1)/IT-295/10-11 dated
       20.03.2012 which order was received by us on 30.03.2012 and upon perusal it was felt
       necessary for filing further appeal.
                                                                                     ITA No. 4055/Mum/2012
                                                  2                                            M/s. Dawn India
                                                                                       Assessment Year: 2008-09

       3.      M/s. Dawn India was required t file further appeal to the Hon. ITAT before
       30.05.2012. We have filed the appeal on 8.6.2012. In the circumstances, there is delay in
       filing the appeal by 10 days only.
       4.      We had received the order of Commissioner of Income Tax (Appeals)-23 on
       30.03.2012 and sent the said order to our Advocate Shri Prakash Pandit in the third week of
       April 2012 for filing the appeal to ITAT. We were informed that the making preparations for
       his foreign trip scheduled on 04.05.2012. On making telephonic enquiry in office of Shri
       Prakash Pandit in the first weel of June. 2012, we were informed that the appeal could not be
       filed since he had not returned to India. In the circumstances, we immediately approached
       his office and collected all the papers including the original CIT(A) order as assessment order,
       etc, on or about 06.06.2012.
       5.      We handed over the papers to our new Chartered Accountant Shri Ashit R. Mehta on
       07.06.2012 to file the appeal when we were asked to make payment of the appeal fees which
       was paid on 07.06.2012 itself. Our said Chartered Accountant after completing the work and
       taking my signatures on the documents immediately filed the appeal on 08.06.2012.
       6.      Due to the aforesaid circumstances, we have not been able to file the appeal within
       the stipulated period. We therefore most earnestly request Your Honors to condone the delay
       in filing the appeal and which is not due to any deliberate default on our part.
       7.      The delay in filing the appeal is not intentional and no prejudice would be caused to
       the department but heavy prejudice would be cause to us.
       8.      The said condonation would save us from unbearable hardship and there would be
       no loss to revenue."

In view of the said reasons, the Ld.AR has prayed that the delay in filing the appeal
before the Tribunal may be condoned. On the other hand, Ld.DR has opposed the
condonation of delay. After considering the relevant record, facts and circumstances
of the case as well as the reasons explained by the assessee, we find that the
assessee has explained sufficient reasons for not filing the appeal within time. It is a
settled law that while condoning the delay the court should take a lenient view. It is
always a question whether the explanation and reasons for delay is bona fide or
merely a devise to cover an ulterior purpose such as laches on the part of the litigant
or an attempt to save limitation in under hand way. When it is found on record that
the party has not acted malafide but the reason explained are factually correct, then
the court should be liberal in construing the sufficient cause and lean in favour of
such party. Whenever substantial justice and technical consideration are opposed to
each other, cause of substantial justice has to be preferred and justice oriented
                                                                       ITA No. 4055/Mum/2012
                                           3                                     M/s. Dawn India
                                                                         Assessment Year: 2008-09

approach has to be taken by the court while deciding the matter for condonation of
delay. In view of this legal and factual position, we condone the delay in filing the
appeal before us and take up the matter for adjudication on merits.

3.       Grounds No. 1 to 4 are not pressed by the assessee and hence the same do
not require adjudication.

4.       In Ground No. 5 & 6, the assessee has agitated the decision of the Ld.CIT(A)
in upholding the action of the AO in applying the provisions of section 194C of the
Act in respect of a sum of Rs.1,56,50,480/- being reimbursable expenses paid to CFS
and/or custodians on behalf of the assessee's clients and consequent disallowance of
the same made u/s 40(a)(ia) of the Act.
4.1      Having heard both the sides and perused the material on record, we find that
the issue is recurring and repetitive in nature and the Tribunal in the assessee's own
case for the A.Y. 2007-08 in ITA No. 5941/Mum/2010, has held that similar sort of
expenses incurred on behalf of the client, the expenses got reimbursed without any
profit element embedded in such receipts. Therefore, the Tribunal decided that the
disallowance can only get triggered if the receipt of any payment is routed through
the books and also the receipt has some component of profit embedded in it.
Resultantly, the Tribunal deleted the disallowance confirmed/made by the Ld.CIT(A)
/AO. Following the said order of the Tribunal, in the absence of any distinguishing
fact brought by the Revenue, the disallowances confirmed/made by the
Ld.CIT(A)/AO stands deleted.

5.       In the result, the appeal filed by the Assessee is allowed.

      Order pronounced in the open court on this 27th day of August, 2014.

          Sd/-                                                        Sd/-
       (RAJENDRA)                                           (Dr. S.T.M. PAVALAN)
     ACCOUNTANT MEMBER                                       JUDICIAL MEMBER

Mumbai, Dated: 28.08.2014.
                                                                       ITA No. 4055/Mum/2012
                                         4                                       M/s. Dawn India
                                                                         Assessment Year: 2008-09

Copy to: The Appellant
         The Respondent
         The CIT, Concerned, Mumbai
         The CIT(A) Concerned, Mumbai
         The DR "D" Bench
                                 //True Copy//

                                                     By Order

                                        Dy/Asstt. Registrar, ITAT, Mumbai.
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