M/s Damodar Mangalji & Co. Ltd., Panaji V. Asst. Commissioner of Income tax Cic.1(1), Panaji

CO 44/PAN/2013

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9461 (ITAT-PANAJI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 29-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHANT K LD
• Assessee Lawyers: C M PINTO
• Keywords: Depreciation; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER CROSS OBJECTION NO. 44/PNJ/2013 OUT OF ITA NO. 131/PNJ/2013 (ASSESSMENT YEAR - 2008 - 09) M/S. DAMODAR MANGALJI & CO. LTD. VS. THE ASSISTANT COMMISSIONER OF 1 ST , FLOOR, DAMODAR NIWAS, INCOME TAX, CIRCLE - 1(1), PANAJI. M.G. ROAD, PANAJI, GOA. GOA. PAN: AAACD6880G (OBJECTOR) (RESPONDE NT) A PPEL LANT BY : SHRI C.M. PINTO, CA. RESPOND ENT BY : SHRI NISHANT K, LD. DR DATE OF HEARING : 05/03 /2014 DATE OF PRONOUNCEMENT : 28 /03 /2014 O R D E R PER: D.T. GARASIA THE ABOVE CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF C IT (A) PANAJI, DATED 15.03.2013 FOR THE A.Y. 2008 - 09. 2. THE GROUNDS ARE RAISED IN THIS CROSS OBJECTION WHICH READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN FACT AND IN LAW IN NOT ALLOWING DEPRECIATION @ 60% ON UPS ATTACHED TO COMPUTER. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), HAS FAILED TO APPRECIATE THAT UPS IS A PERIPHERAL DEVICE ATTACHED TO THE COMPUTER AND IS ENTITLED TO HIGHER DEPRECIATION ON PAR WITH OTHER PERIPHERAL DEVICES LIKE PRINTER, SCANNER, ETC. [[ 3. THE ASSESS EE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH CROSS OBJECTION. THE ASSESSEE HAS PREPARED A CROSS O BJECTION IN F ORM NO. 36A ON 05/07/2013 AND DIRECTED HIS STAFF SHRI CHINTAN P. CHAUHAN TO FILE IT IN THE OFFICE OF ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL , PANAJI GOA. THE ASSESSE ES CROSS OBJECTION WAS NOT LISTED ALONG WITH ORIGINAL APPEAL BUT THE PAPERS WERE FILED WITH S ENIOR A UTHORISED R EPRESENTATIVE INCOME TAX APPELLATE 2 . C. O. NO. 44/PNJ/2013 OUT OF ITA NO. 131/PNJ/2013 (A.Y. 2008 - 09) TRIBUNAL OFFICER IN GROUND FLOOR OF PUNDALIK NIWAS. IN THE CIRCUMSTANCES THERE IS DELAY OF 36 DAYS IN FILING THE CROSS OBJECTION. AS THE D ELAY HAS OCCURRED INADVERTENTLY, T HEREFORE, THIS APPLICATION FOR CONDONATION OF DELAY AND FOR ADMISS ION OF CROSS OBJECTION. DR OBJECTED TO IT. 4. WE HAVE HEARD RIVAL CONTENTION OF BOTH THE PARTIES, WE FIND THAT IN ITA NO. 131/PNJ/2013 WAS DEPARTMENT APPEAL AGAINST MR. DAMODAR MANGALJI . W HEN THE MATTER HAS COME UP FOR HEARING , THE ADVOCATE FOR DAMODAR MANGALJI HAS APPEARED ON VARIOUS DATE S, THE TRIBUNAL HAS DISPOSED ITA NO. 131/PNJ/2013 BY HEARING BOTH THE PARTIES. WE FIND T HAT DEPARTMENT APPEAL WAS HERD ON 26.08.2013, THE DEFENDANT DAMADOR MANGALJI WAS REPRESENTED BY ADVOCATE SRI R. SRINIWASAN. ON THE DATE OF HEARING, THE LEARNED ADVOCATE DID NOT POINT OUT THIS CROSS O BJECTION AND HAS NOT COME UP ON DATE OF HEARING OF THIS A PPE AL. IF THE ASSESSEE HAS FILED THE CROSS OBJ ECTION IN LEARNED DR OFFICE THE AR SHOULD HAVE OBJECTED TO THE HEARING OF THE APPEAL. THE LEARNED AR DID NOT RAISE ANY OBJECTION FOR HIS CROSS OBJECTION . W HEN THE ADVOCATE DID NOT OBJECT TO THE HEARING OF ITA NO. 131/PNJ/2013, T HE MATTER WAS HEARD AND IT WAS DECIDED BY THE TRIBUNAL ON 25.10.2013. AS PER THE AFFIDAVIT FILED ALONG WITH CROSS OBJECTION BY ONE MR. CHINTAN PRATAPBHAI CHAUHAN THAT HE HAS FILED THE CROSS OBJECTION IN DR OFFICE. IF THE ASSESSEE HAS FIL ED THE CROSS OBJECTION IN THE WRONG PLACE NATURALLY HE SHOULD HAVE OBJECTED TO THE HEARING OF DEPARTMENT S APPEAL. AS PER THE AFFIDAVIT THE CROSS OBJECTION WAS FIL ED ON 5.7.2013. WHEN THE CROSS OBJECTION WAS FILED THE ASSESSEE SHOULD HAVE OBJECTED ON 26.08 .2013, BUT THE LEARNED AR DID NOT OBJECT, THEREFORE, WE ARE OF THE VIEW THAT ASSESSEE HAS NO REASONABLE CAUSE FOR CONDONATION OF DELAY. WE FIND THAT THE ASSESSEE HAS FILED THE C.O. IN A WRONG PLACE AND PRUDENT MAN CANNOT BE BELIEVE THAT CROSS OBJECTION IS FILED I N THE OFFICE OF THE AR. IN THE CROSS O BJECTION IN FORM NO. 36A IT IS WRITTEN THAT IT IS TO BE FIL ED IN THE OFFICE OF INCOME TAX APPELLATE TRIBUNAL, PANAJI, GOA. THEREFORE, WE DO NOT FIND ANY REASONS TO CONDONATION OF DELAY. WE FIND THAT THE DELAY CANNOT BE CONDONE D SIMPLY BECAUSE THE APPELLANTS CASE IS HEARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPEL LANT WAS DELIGENT AND WAS NOT GUILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY 3 . C. O. NO. 44/PNJ/2013 OUT OF ITA NO. 131/PNJ/2013 (A.Y. 2008 - 09) INVOKING THE AID OF THE PROVISIONS. THE CAUSE OF THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND ATTENTION, COULD HAVE BEEN AVOIDED, CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHENEVER, THERE IS NO NEGLIGENCE OR INACTION, OR WANT OF BONA FILES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. THE ASSESSEE HAS FILED THE CROSS OBJECTION AS PER HIS AFFIDAVIT ON 5.7.2013 AND DEPARTMENTS APPEAL ITA NO. 131 /P NJ/2013 WAS HEARD ON 26.08.2013. O N THE SAME DATE OF HEARING DEPARTMENTS APPEAL DEFENDANT DAMODAR MANGALJI WAS REPRESENTED BY SENIOR A DVOCATE, SHRI R. SRINIWASAN. O N THAT DATE ASSESSEE DID NOT ENQUIRED TO ABOVE HIS CROSS OBJECTION. THEREFORE, IN OUR OPIN ION, THE ASSESSEE HAS NO SUFFICIENT REASON AND ASSESSEE IS NOT VIGILANT FOR HIS RIGHT AND THE CROSS OBJECTION IS NOT FILED WITHIN THE TIME DUE TO NEGLIGENT BEHAVIOUR OF THE DAMADOR MANGALJI. THEREFORE, APPLICATION FOR CONDONATION OF DELAY ALONG WITH C.O ARE DISMISSED. 5 . I N THE RESULT, APPLICATION FOR CONDONATION OF DELAY ALONG WITH C.O ARE DISMISSED. ORDER PRONO UNCED IN THE OPEN COURT ON 28 .03. 2014. SD/ - SD/ - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 28 .03. 2014 P.S. - *PK* COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY BY ORDER 4 . C. O. NO. 44/PNJ/2013 OUT OF ITA NO. 131/PNJ/2013 (A.Y. 2008 - 09)