M/S RASHLEELA ENTERPRISES, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

CO 09/JPR/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3266 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Tax effect; Time period of passing order

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM IZR;K{KSI.K @ C.O. NO. 09/JP/2019 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 404/JP/2018) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR 2014-15 M/S RASHLEELA ENTERPRISES PVT. LTD., C-5, KRISHNA BALRAM, MALVIYA NAGAR, JAIPUR CUKE VS. ACIT, CIRCLE-1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AADCR 2594 J IZR;K{KSID@ OBJECTOR IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : MS. SHIVANGI SAMDHANI JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/11/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 25/11/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT CROSS OBJECTION IS FILED BY THE ASSESSE E IN RESPECT OF APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF TH E LD. CIT(A)-1, JAIPUR DATED 03/01/2018 FOR A.Y 2014-15. THE APPEAL OF THE REVENUE HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF T HE CBDT CIRCULAR DATED 8.08.2019 BY THE DECISION OF THE CO-ORDINATE BENCH DATED 20.08.2019. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS DELAY I N FILING CROSS OBJECTION BY THE ASSESSEE BY 254 DAYS. IN THIS REGARD, IT WA S SUBMITTED BY THE LD AR THAT ORDERS FOR THREE YEARS WERE PASSED BY THE LD. CIT(A) WHICH WERE RECEIVED AT SAME TIME AND THE ASSESSEE CONSULTED IT S CHARTERED CO NO. 09/JP/2019 M/S RASHLEELA ENT ERPRISES PVT. LTD., JAIPUR 2 ACCOUNTANT AND ON THE ADVICE OF THE CHARTERED ACCOU NTANT, APPEAL WAS NOT PREFERRED BEFORE THE TRIBUNAL FOR ALL THE THREE YEA RS. THE DEPARTMENT HOWEVER PREFERRED APPEAL FOR THE IMPUGNED ASSESSMEN T YEAR BEFORE THE TRIBUNAL AND WHILE PREPARING FOR THE APPEAL, THE CH ARTERED ACCOUNTANT INFORMED THE ASSESSEE THAT SHE HAS COMMITTED SOME I NADVERTENT MISTAKE/ERROR WHILE ADVISING INITIALLY FOR NOT FILI NG THE APPEAL, HOWEVER, GIVEN THAT THE LD CIT(A) HAS PARTLY SUSTAINED THE A DDITION, THE ASSESSEE HAS STRONG CASE ON MERITS AND CROSS-OBJECTION SHOUL D BE FILED. IT WAS FURTHER SUBMITTED THAT ON 26.04.2018, THE ASSESSEE COMPANY RECEIVED A COPY OF FORM 36 FILED BY THE DEPARTMENT AND THEREAF TER, BASIS THE ADVICE OF THE CHARTERED ACCOUNTANT, CROSS OBJECTION WAS FI LED ON 4.2.2019 WITH A DELAY OF 254 DAYS. IT WAS ACCORDINGLY SUBMITTED TH AT THE DELAY IS ON ACCOUNT OF BONAFIDE ERROR COMMITTED IN DECISION MAK ING, HENCE THE SAME MAY BE CONDONED AND THE CROSS-OBJECTION MAY BE ADMI TTED FOR ADJUDICATION. 3. THE LD. DR HAS OBJECTED TO THE CONTENTIONS SO AD VANCED BY THE LD. COUNSEL AND IT WAS SUBMITTED THAT THE ORDER OF THE LD.CIT IS VERY CLEAR THAT HE HAS ALLOWED PART RELIEF TO THE ASSESSEE AND OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE LD CIT(A) WHICH READS AS UNDER: (VI) THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, L OOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES AND FACTUAL MAT RIX OF THE CASE, THE AO IS HEREBY DIRECTED TO RESTRICT DISALLOWANCE OF INTEREST ON THE BORROWED CAPITAL AMOUNTING TO RS. 1,49,50,999/- USE D FOR ACQUISITION OF FLATS BY APPLYING THE AVERAGE RATE O F INTEREST PAID BY THE APPELLANT. HENCE, THIS GROUND OF APPEAL IS PART LY ALLOWED. 4. IT WAS SUBMITTED BY THE LD DR THAT ON RECEIPT OF FORM 36 FILED BY THE DEPARTMENT, THE ASSESSEE HAD AMPLE TIME TO FILE CRO SS-OBJECTION, HOWEVER CO NO. 09/JP/2019 M/S RASHLEELA ENT ERPRISES PVT. LTD., JAIPUR 3 DUE TO GROSS NEGLIGENCE ON PART OF THE ASSESSEE, CR OSS-OBJECTION HAS BEEN FILED WITH A DELAY OF 254 DAYS WHICH CANNOT BE COND ONED. IT WAS ACCORDINGLY SUBMITTED THAT THE CROSS-OBJECTION SO F ILED BY THE ASSESSEE MAY NOT BE ADMITTED FOR ADJUDICATION. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THE LD AR HAS CONTENDED THAT THE REASON FOR THE DELAY IS INADVERTENT ERROR COMMITTED BY A CHARTERED ACCOUNTA NT WHO HAS ADVISED THE ASSESSEE NOT TO FILE AN APPEAL AGAINST THE ORDE R OF THE LD CIT(A). NO DOUBT, THE ASSESSEE COMPANY IS ENTITLED TO SEEK ADV ICE OF A CHARTERED ACCOUNTANT AND WHERE THE CHARTERED ACCOUNTANT HAS A DVISED THE ASSESSEE NOT TO FILE AN APPEAL AND THE SAME HAS BEEN RELIED UPON BY THE ASSESSEE COMPANY, THE ASSESSEE HAS TAKEN REASONABLE STEPS TO SAFEGUARD ITS INTEREST AND HAS ACTED IN A DILIGENT MANNER. THEREF ORE, BASIS THE WRONG ADVICE BY A CHARTERED ACCOUNTANT, WHERE THERE IS A DELAY IN FILING AN APPEAL, THE SAME MAY BE A GROUND FOR CONDONING THE DELAY IN FILING THE APPEAL. HOWEVER, THE ISSUE BEFORE US IS REGARDING DELAY IN FILING THE CROSS- OBJECTION AND NOT DELAY IN FILING OF APPEAL AGAINST THE ORDER OF THE LD CIT(A). NO DOUBT, ONCE A CROSS OBJECTION IS FILED, THE SAME HAS TO BE TREATED AS ANY OTHER REGULAR APPEAL FILED BY THE AS SESSEE AND DISPOSED OFF ACCORDINGLY. HOWEVER, UNLIKE AN APPEAL, CROSS-OBJE CTION CAN BE FILED BY THE ASSESSEE COMPANY ONLY WHERE THE DEPARTMENT HAS PREFERRED AN APPEAL AGAINST THE ORDER OF THE LD CIT(A). IF THERE IS NO APPEAL BY THE DEPARTMENT, NO RIGHT ACCRUES IN FAVOUR OF THE ASSES SEE TO FILE ANY CROSS- OBJECTION. FURTHER, THE LIMITATION PERIOD FOR FILI NG THE CROSS OBJECTION IS THIRTY DAYS OF THE RECEIPTS OF THE NOTICE THAT APPE AL HAS BEEN PREFERRED BY THE DEPARTMENT AND RELEVANT PROVISIONS AS CONTAINED SECTION 253(4) READS AS UNDER: CO NO. 09/JP/2019 M/S RASHLEELA ENT ERPRISES PVT. LTD., JAIPUR 4 (4) THE ASSESSING OFFICER OR THE ASSESSEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE COMMISSIONER (APPEALS), HAS BEEN PREFERRED UNDER SU B-SECTION (1) OR SUB-SECTION (2) BY THE OTHER PARTY, MAY, NOTWITH STANDING THAT HE MAY NOT HAVE APPEALED AGAINST SUCH ORDER OR ANY PAR T THEREOF, WITHIN THIRTY DAYS OF THE RECEIPT OF THE NOTICE, FI LE A MEMORANDUM OF CROSS-OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER , AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS), AND SUC H MEMORANDUM SHALL BE DISPOSED OF BY THE APPELLATE TRIBUNAL AS I F IT WERE AN APPEAL PRESENTED WITHIN THE TIME SPECIFIED IN SUB-SECTION (3). WHAT IS THEREFORE RELEVANT TO EXAMINE IS THE REASON S FOR THE DELAY IN FILING THE CROSS-OBJECTION ONCE THE NOTICE OF APPEAL FILED BY THE DEPARTMENT HAS BEEN RECEIVED BY THE ASSESSEE COMPANY. IN THE INST ANT CASE, IT IS AN UNDISPUTED FACT THAT THE ASSESSEE COMPANY RECEIVED A COPY OF FORM 36 FILED BY THE DEPARTMENT ON 26.04.2018 AND THEREAFTE R, THE CROSS OBJECTION WAS FILED ON 4.2.2019 WITH A DELAY OF 254 DAYS. HO WEVER, THERE IS NOTHING IN THE ASSESSEES APPLICATION SEEKING CONDONATION O F DELAY OR IN THE AFFIDAVIT FILED BY THE ASSESSEE COMPANY AS TO THE R EASONS FOR THE DELAY IN FILING THE CROSS-OBJECTIONS. THE REASONS FOR NOT F ILING THE APPEAL CANNOT BE RELIED UPON FOR THE DELAY IN FILING THE CROSS-OBJEC TIONS BY THE ASSESSEE COMPANY AS THE LIMITATION PERIOD FOR FILING THE CRO SS-OBJECTION IS ONLY RECKONED FROM RECEIPT OF NOTICE OF FILING OF APPEAL BY THE DEPARTMENT AND NOT THE RECEIPT OF ORDER OF THE LD CIT(A). SO WHER E THERE IS NO DISPUTE ON RECEIPT OF NOTICE OF FILING OF APPEAL BY THE DEPART MENT AND THERE IS DELAY IN FILING THE CROSS-OBJECTION BEYOND 30 DAYS OF SUCH R ECEIPT OF NOTICE, THE ASSESSEE HAS TO EXPLAIN THE REASONS WHY SUCH DELAY HAS HAPPENED WHICH WE FIND ABSENT IN THE INSTANT CASE. THEREFORE, IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE CONDONATION APPLICAT ION SO FILED BY THE CO NO. 09/JP/2019 M/S RASHLEELA ENT ERPRISES PVT. LTD., JAIPUR 5 ASSESSEE COMPANY IS HEREBY REJECTED AND CROSS-OBJEC TION FILED BY THE ASSESSEE COMPANY IS NOT ADMITTED AS BARRED BY LIMIT ATION AS PRESCRIBED IN SECTION 253(4) OF THE ACT. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019 SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25/11/2019 *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S RASHLEELA ENTERPRISES PVT. LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-01, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (CO NO. 09/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR