- (1.) This order shall dispose of I.T.A. Nos. 266 and 267 of 2013, as according to the learned counsel for the parties, the issue involved in both the appeals is identical. However, the facts are being extracted from I.T.A. No. 266 of 2013. I.T.A. No. 266 of 2013 has been preferred by the assessee under section 260A of the Income-tax Act, 1961 (in short, "the Act"), against the order dated June 1, 2010, annexure A. 5 passed by the Income-tax Appellate Tribunal, Chandigarh Bench "A", Chandigarh in I.T.A. No. 608/CHD/2009 for the assessment year 2003-04, claiming the following substantial questions of law: "(I) Whether the Income-tax Appellate Tribunal was justified in disposing of the appeal, vide order dated June 1, 2010, annexure A. 5 without giving reasonable opportunity of being heard to the appellant firm and without allowing the appellant to argue its case and to refer to the paper book including written submissions and evidences filed before the authorities below which is against the principles of natural justice and that of right of hearing in view of trite law that no one should be condemned unheard? (II) Whether the Income-tax Appellate Tribunal was justified in disposing of the miscellaneous petition, vide orders dated April 16, 2013, annexure A. 6 by dismissing it without appreciating the fact that during the initial hearing of the appeal, the hon'ble Income-tax Appellate Tribunal has simply closed the hearing with the observation that from the facts it is apparent that the matter has been wrongly decided against the assessee-firm and in view of the judgment of the jurisdictional High Court and that of the hon'ble Madhya Pradesh High Court the capital introduced by the partners in the firm has to be added in the hands of the partners and not to that of the firm so that the Income-tax Appellate Tribunal should have recalled its initial order dated June 1, 2010? (III) Whether the Income-tax Appellate Tribunal was justified in disposing of the appeal, vide orders dated June 1, 2010, annexure A. 5 by dismissing it without appreciating the fact and making the addition of the impugned amount in the hands of the firm wrongly in view of the judgment of the jurisdictional High Court and that of the hon'ble Madhya Pradesh High Court in the case of CIT v. Rameshwar Dass Suresh Pal Cheeka, 2007 208 CTR(P&H) 459 and CIT v. Metal and Metals of India, 2007 208 CTR(P&H) 457 and that of CIT v. Metachem Industries, 2000 245 ITR 160 (MP) wherein it was held that the capital introduced by the partners in the firm has to be added in the hands of the partners and not to that of the firm so the findings of the Income-tax Appellate Tribunal are erroneous? (IV) Whether, under the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in concurring with the authorities below and thereby upholding the addition of Rs. 11,00,000 in the hands of the firm though the money belonged to individual partners as withdrawn by them from their account in the firm for earlier years for which ample evidences were given in the form of ledger accounts and the books of the firm? (V) Whether, under the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in concurring with the authorities below and thereby upholding the addition of Rs. 11,00,000 in the hands of the firm though the money belonged to individual partners as withdrawn by them from their account in the firm for earlier years for which ample evidences were given in the form of ledger accounts and the books of the firm on the basis of gap in withdrawal and investment which is against the well settled law by this hon'ble court in the case of Ghuna Ram and Sons in CWP No. 163 of 1999 and CWP No. 4999 of 2010? (VI) Whether the finding of the Tribunal is perverse on facts and its opinion is unsustainable in law and the order of the Tribunal is legally unsustainable and bad in law and the Income-tax Appellate Tribunal has misdirected itself in being influenced by irrelevant factors and applying the erroneous criteria while deciding the issue under the Income-tax Act, 1961?"
(2.) A few facts relevant for the decision of the controversy as narrated in I.T.A. No. 266 of 2013 are that the appellant is a partnership concern based at Yamuna Nagar. It is engaged in running cold storage. It filed its return of income for the assessment year 2003-04 declaring a loss of Rs. 5,240 which was processed and taken up for scrutiny. The Assessing Officer, vide order dated December 30, 2005, annexure A. 1 made an addition of Rs. 11,00,000 in the hands of the firm while accepting the loss of Rs. 5,240 as claimed. Aggrieved by the order, the appellant filed an appeal before the Commissioner of Income-tax (Appeals) (CIT(A)). Vide order dated December 19, 2007, annexure A. 2, the appeal was dismissed by the Commissioner of Income-tax (Appeals). Still not satisfied, the appellant filed an appeal before the Tribunal. Vide order dated July 31, 2008, annexure A. 3, the Tribunal allowed the appeal and remanded the case back to the Commissioner of Income-tax (Appeals) to decide the appeal of the asses-see afresh in accordance with law. Vide order dated March 13, 2009, annexure A. 4, the Commissioner of Income-tax (Appeals) again dismissed the appeal and confirmed the addition. The assessee again approached the Tribunal by filing appeal. Vide order dated June 1, 2010, annexure A. 5, the Tribunal dismissed the appeal. Thereafter, the assessee filed a miscellaneous application before the Tribunal for recalling the order dated June 1, 2010. The said application was also dismissed by the Tribunal, vide order dated April 16, 2013, annexure A. 6. Hence, the present appeals by the assessee.
(3.) There is delay in filing both the appeals. It was urged on behalf of the appellant that the application under section 254(2) of the Act was filed for rectification of the order dated June 1, 2010, annexure A. 5, which was decided after lapse of more than two and a half years and it was in view thereof, the delay in filing the appeals has occurred. Relying upon judgment of the apex court in Suvarnalatha v. Mohan Anandrao Deshmukh (Civil Appeal No. 2994 of 2010 dated April 5, 2010) (arising out of SLP (C) No. 9482 of 2007), decided on April 5, 2010, it was urged that the said period should be excluded while condoning the delay.;