Sonali Kilaje 4-ITXA-1210-17.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1210 OF 2017 Procter and Gamble Hygiene and Healthcare Limited Appellant v/s. Commissioner of Income Tax - 8 Respondent Mr. Farokh Irani a/w. Ms. Rupali Vasaikar i/b. Rajesh Shah & Co. for Appellant. Mr. Tejveer Singh for Respondent. CORAM: UJJAL BHUYAN, & MILIND N. JADHAV, JJ. DATE : FEBRUARY 4, 2020 P. C:- 1. Heard Mr. Irani, learned counsel for appellant and Mr. Tejveer Singh, learned standing counsel, revenue for respondent. 2. This appeal has been fled under Section 260A of Income Tax Act, 1961 ("the Act" for short) against order dated 30.11.2016 passed by Income Tax Appellate Tribunal, 1 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaj 4-ITXA-1210-17.doc H Bench, Mumbai ("Tribunal" for short) in ITA No. 4866/Mum/2015 for Assessment Year 2008-09. 3. appeal has been preferred projecting following questions as substantial questions of law : (1) Whether Tribunal was correct, in facts of case and in law, in rejecting appeal of appellant by not condoning delay ? (2) Whether order dated 30 th November, 2016 passed by Tribunal is perverse as same is passed without appreciating materials fled before it in right perspective ? 3.1. From above, it is evident that issue involved in this appeal is non-condonation of delay in fling of related appeal under Section 254 of Act by appellant before Tribunal. 4. Before adverting to impugned order passed by Tribunal, relevant facts are briefy stated as under : 2 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaje 4-ITXA-1210-17.doc 4.1. For Assessment Year under consideration, Assessing Oficer passed assessment order on 01.02.2012. In said assessment order certain deductions were allowed under Section 80IC of Act. 4.2. jurisdictional administrative Commissioner i.e. Commissioner of Income Tax -8, Mumbai was of view that Assessing Oficer had wrongly allowed deduction under Section 80IC of Act. He was of further view that assessment order so made was erroneous and prejudicial to interest of revenue. Accordingly, he invoked jurisdiction under Section 263 of Act and vide order dated 31.03.2014 set aside assessment order by directing Assessing Oficer to pass fresh assessment order by taxing interest income earned by petitioner on amount covered by deduction sought for under Section 80IC, under head "income from other sources". 4.3. It is stated that following order passed by jurisdictional administrative Commissioner under Section 263 of Act, Assessing Oficer passed consequential 3 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaje 4-ITXA-1210-17.doc assessment order dated 09.06.2014. Against assessment order dated 09.06.2014, petitioner preferred appeal before Commissioner of Income Tax (Appeals)-17, Mumbai i.e. frst appellate authority. However, by appellate order dated 28.08.2015, frst appellate authority dismissed appeal of petitioner. Aggrieved thereby petitioner preferred appeal before Tribunal which was registered as ITA No. 5096/Mum/2015. In meanwhile, petitioner having realised that order passed by jurisdictional administrative Commissioner under Section 263 of Act had remained unchallenged, belatedly fled appeal before Tribunal which was registered as ITA No. 4866/Mum/2015. In process there was delay of 450 days. 4.4. Petitioner fled application before Tribunal for condonation of delay in fling ITA No. 4866/Mum/2015 and in support thereof also fled afidavit dated 12.09.2016 explaining delay. Both appeals were heard together and by common order dated 30.11.2016 both appeals were dismissed. In so far ITA No. 4866/Mum/2015 is concerned, same was dismissed as being time-barred as 4 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaje 4-ITXA-1210-17.doc delay in fling appeal was not condoned. 5. In present appeal we are concerned with that portion of order dated 30.11.2016 dealing with non- condonation of delay in fling ITA No. 4866 of 2015 resulting in dismissal of appeal as time barred. 6. On going through relevant portion of order passed by Tribunal, we fnd that Tribunal did not accept contention of appellant that it was under bonafde belief that since it had fled appeal against consequential order of assessment as afirmed by frst appellate authority, its interest would be protected and therefore there was no need to independently challenge order under Section 263. 7. We feel that when Tribunal had entertained appeal arising out of consequential assessment, it was not justifed on part of Tribunal to have rejected appeal fled by appellant against order passed by jurisdictional administrative Commissioner under Section 263 of Act because that was very foundation of 5 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaje 4-ITXA-1210-17.doc subsequent assessment proceedings. 8. In light of above, we are of view that it would be in interest of justice, if delay in fling ITA No. 4866/Mum/2015 is condoned and said appeal is heard on merit by Tribunal. 9. Consequently, we set aside order dated 30.11.2016 passed by Tribunal in so far it pertains to ITA No. 4866/Mum/2015. Delay in fling said appeal is condoned and matter is remanded back to Tribunal for hearing appeal on merit in accordance with law after giving due opportunity to parties. Accordingly, two substantial questions of law are answered in favour of assessee and against revenue. 10. However, we would like to add that appellant should pay cost of Rs.25,000/- to Maharashtra State Legal Services Authority, receipt of which should be placed before Tribunal for rehearing of Income Tax Appeal No. 4866/Mum/2015. 6 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Sonali Kilaje 4-ITXA-1210-17.doc 11. Consequently, appeal is allowed. (MILIND N. JADHAV, J.) (UJJAL BHUYAN,J.) 7 of 7 Uploaded on - 07/02/2020 Downloaded on - 08/02/2020 10:49:34 Procter and Gamble Hygiene and Healthcare Limited v. Commissioner of Income-tax-8