M/s. Jaiveer Hotels Pvt.Ltd., Hyderabad V. Income Tac Officer, Ward-2(1), Hyderabad

ITA 1020/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66532 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 03-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KALRADR
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1020/HYD/ 201 2 - ASSTT. YEAR: 2006-07 M/S. JAIVEER HOTELS PVT. LTD., HYDERABAD. .... APPELLANT PAN:AABCJ 4568L VS. INCOME-TAX OFFICER, WARD-2(1),HYDERABAD. RESPONDENT APPELLANT BY : SHRI C.P. RAMASWAMY RESPONDENT BY : SMT. VIDISHA KALRA(DR) DATE OF HEARING : 11-10-2012 DATE OF PRONOUNCEMENT: 27-11- 2012 ORDER PER SAKTIJIT DEY, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 24-11-2010 PASSED IN APPEAL NO.0127/CIT (A)-I II/09-10 AND IT PERTAINS TO THE ASSESSMENT YEAR 2006-07. 2. THE REGISTRY HAS POINTED OUT A DELAY OF 519 DA YS IN FILING THIS APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AN AP PLICATION FOR CONDONATION OF DELAY U/S 253 (5) OF IT ACT AND HAS EXPLAINED CAUSE FOR DELAY IN AN AFFIDAVIT SWORN BY THE M.D OF THE ASSESSEE COMPANY ACCOMPANYI NG THE PETITION. 3. THE LEARNED AR EXPLAINING THE CAUSE FOR DELAY SU BMITTED BEFORE US THAT THOUGH THE ORDER DATED 24-11-2010 PASSED BY THE CIT (A)-III, HYDERABAD WAS RECEIVED BY THE ASSESSEES COUNSEL ON 2-12-2010, TH E ORDER COULD NOT BE 2 ITA NO.1020 OF 2012 M/S. JAIVEER HOTELSPVT.LTD., HYD. COLLECTED FROM ITS COUNSEL DUE TO CIRCUMSTANCES B EYOND THE ASSESSEES CONTROL AND THE ORDER COULD ONLY BE COLLECTED ON 20-10-201 1. THE LEARNED AR SUBMITTED THAT FROM JANUARY 2011, THE ASSESSEES BU SINESS WAS IN DOLDRUMS DUE TO FAMILY PROBLEMS AS THERE WAS A RIFT IN FAMILY RE LATIONSHIP WHICH ULTIMATELY RESULTED IN THE MD HAVING TO LEAVE THE JOINT FAMILY . IT WAS FURTHER EXPLAINED THAT THE M.DS ONLY BROTHER WAS KILLED IN AN ACCIDENT ON 20-7-2011 AND THE M.DS OLD MOTHER HAD TO UNDERGO SURGERY FOR KNEE REPLACEMENT IN JULY, 2011. IT WAS EXPLAINED THAT SINCE THE M.D WAS ATTENDING TO HIS M OTHER AND TAKING POST OPERATIVE CARE, STEPS COULD NOT BE TAKEN FOR FILING THE APPEAL WITHIN THE PRESCRIBED TIME. THE LEARNED AR SUBMITTED THAT THE DELAY WAS NOT DELIBERATE. THE LEARNED AR RELYING UPON THE DECISIONS OF HONBL E SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS.MST.KATIJI (167 I TR 471) AND VEDABAI ALIAS VAIJAYANATBAI BABURAO PATIL 253 ITR 798 SUBMITTED TH AT PREFERENCE HAS TO BE GIVEN FOR ADVANCING SUBSTANTIAL JUSTICE AND NOT TO DENY JUSTICE ON TECHNICAL GROUND. THE LEARNED AR URGED FOR ADMITTING THE APPE AL AND RESTORING THE ORIGINAL APPEAL TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR ADJUDICATION ON MERITS SINCE THE FIRST APPEAL WAS ALSO DISMISSED SU MMARILY ON THE GROUND OF DELAY. 4. THE LEARNED DR STRONGLY OPPOSING THE CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NOT AT ALL EXPLAINED THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. HENCE THE DELAY SH OULD NOT BE CONDONED. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE DEALING WITH THE FACTS INVOLVED, IT IS NECES SARY TO LOOK INTO THE PROVISIONS CONTAINED IN THE STATUTE WITH REGARD TO CONDONATIO N OF DELAY. SECTION 253(5) EMPOWERS THE TRIBUNAL TO ADMIT AN APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS OBJECTION AFTER EXPIRY OF THE PRESCRIBED PERI OD, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN T HE PRESCRIBED PERIOD. A READING OF THE AFORESAID PROVISION MAKES IT CLEAR THAT AN A PPEAL CAN BE ADMITTED AFTER THE EXPIRY OF THE PRESCRIBED PERIOD PROVIDED THE TR IBUNAL IS SATISFIED THAT THERE IS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THE TIME. IN THE CONTEXT OF THE STATUTORY PROVISION, IT HAS TO BE SEEN AS TO WH ETHER THE ASSESSEE HAS BEEN ABLE TO ESTABLISH THIS FACT THAT THERE WAS SUFFICIE NT CAUSE FOR IT NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATION. IN THIS RE GARD, IT WILL BE NECESSARY TO LOOK 3 ITA NO.1020 OF 2012 M/S. JAIVEER HOTELSPVT.LTD., HYD. INTO THE EXPLANATION FURNISHED BY THE ASSESSEE EXPL AINING THE CAUSE OF DELAY AS MENTIONED IN THE AFFIDAVIT OF THE MANAGING DIRECTOR OF THE ASSESSEE WHICH IS EXTRACTED HEREUNDER FOR READY REFERENCE. 2. OUR APPEAL AGAINST THE ASSESSMENT ORDER FOR THE ASS ESSMENT YEAR 2006-07 WAS FILED WITH A DELAY BECAUSE ORIGINALLY WE WERE GIVEN TO UNDERSTAND THAT NO PENALTY WOULD BE LEVIED U/S 271(1)( C) IF WE DID NO T APPEAL AGAINST THE ASSESSMENT ON MERITS. HOWEVER, THIS ORAL PROMISE WAS NOT ADHERED TO BY HE AO. CONSEQUENTLY, FOR THE REASONS EXPLAINED IN OUR PETITI ON U/S 249(3) FILED WITH THE APPEAL U/S 246A(1), THE BELATED APPEAL AGAINST THE QUANTUM WAS FILED, BESIDES AN APPEAL AGAINST THE LEVY OF PENALTY,. HOWEVER, THE SAME WAS DISMISSED IN LIMINE BY THE CIT (A). 3. THE ORDER DATED 24-11-2010 PASSED BY THE CIT (A) -III, HYDERABAD WAS RECEIVED BY OUR ADVOCATE ON 2-12-2010. DESPITE THE FACT THAT WE WERE CALLED BY OUR COUNSEL TO COLLECT THE ORDER, DUE TO CIRCUMSTANC ES BEYOND US, THIS ORDER WAS COLLECTED BY US ONLY ON 20-10-2011. 4. FROM JANUARY 2011 ONWARDS OUR BUSINESS HAS BEEN IN DOLDRUMS DUE TO FAMILY PROBLEMS. ORIGINALLY OURS WAS AN UNDIVIDED FAMILY AND SUDDENLY THERE WAS A BIG RIFT CREATED AND WE HAD TO COME OUT OF THE FAMILY, BES IDES BEING DECEIVED OF OUR SHARE IN THE PROPERTIES OF THE JOINT FAMILY. THESE M ONETARY PROBLEMS ARE YET TO GET SETTLED. TO FURTHER WORSEN THE SITUATION MY ONL Y BROTHER WAS KILLED IN AN ACCIDENT ON 20-7-2011 (COPY OF DEATH CERTIFICATE & FI R ENCLOSED). 5. FURTHER, MY AGED MOTHER HAD TO UNDERGO SURGERY FOR KNEE REPLACEMENT IN JULY, 2011 AND SHE WAS DISCHARGED ON THE DAY MY BROTHE R DIED AND TILL NOW I HAVE BEEN ATTENDING ON THE POST-OPERATIVE CARE OF MY MOTHER (DISCHARGE SUMMARY ENCLOSED). 6. THIS AFFIDAVIT IS SWORN TO EXPLAIN THE DELAY IN FIL ING THIS APPEAL BEFORE THE HONBLE ITAT. IT IS A NON-DELIBERATE DELAY AND IT IS PRAYED THAT THE ORIGINAL APPEAL MAY BE RESTORED TO THE FILE OF THE FIRST APPELL ATE AUTHORITY FOR ADJUDICATION ON MERITS. 6. AS CAN BE SEEN FROM THE ABOVE EXPLANATION SUBMITT ED BY THE ASSESSEE, THE ORDER OF THE CIT (A) WAS RECEIVED BY THE ASSESSE ES COUNSEL ON 2-12-2010. SO ORDINARILY APPEAL SHOULD HAVE BEEN FILED ON OR BE FORE 31-1-2011. HOWEVER, THE APPEAL WAS FILED BY THE ASSESSEE ON 3-7-2012. EXPLAINING THE CAUSE OF DELAY, IT HAS BEEN SUBMITTED THAT FROM JANUARY, 201 1 ONWARDS, THERE WAS A 4 ITA NO.1020 OF 2012 M/S. JAIVEER HOTELSPVT.LTD., HYD. DISPUTE IN THE FAMILY WHICH RESULTED IN THE BUSINES S BEING SERIOUSLY HAMPERED AND WHICH ULTIMATELY RESULTED IN THE M.D HAVING TO LEAVE THE JOINT FAMILY. AS PER THE EXPLANATION OF THE ASSESSEE, PROBLEM WAS FURTHE R COMPOUNDED BECAUSE OF THE FACT THAT THE MOTHER OF M.D UNDERWENT SURGERY F OR KNEE REPLACEMENT IN JULY, 2011 AND ON THE DAY SHE WAS DISCHARGED, THE M.DS B ROTHER WAS KILLED IN AN ACCIDENT ON 20-7-2011. THE MANAGING DIRECTOR OF TH E ASSESSEE EXPLAINED THAT SINCE HE WAS ATTENDING POST OPERATIVE CARE OF HIS M OTHER, HE COULD ONLY BE ABLE TO COLLECT THE ORDER FROM HIS COUNSEL ON 20-10-2011 . AS CAN BE SEEN FROM THE NARRATION OF ABOVE FACTS, THE ORDER WAS RECEIVED BY THE ASSESSEES COUNSEL ON 2- 12-2010. THEREFORE, THERE WAS NO REASON FOR THE AS SESSEE TO HAVE NOT TAKEN STEPS FOR COLLECTING THE ORDER FROM ADVOCATE FOR FI LING OF THE APPEAL WITHIN THE PRESCRIBED TIME SINCE ACCORDING TO MANAGING DIRECTO RS OWN ADMISSION, THE PROBLEM DUE TO THE DISTURBANCE IN FAMILY, BUSINESS AND OTHER EVENTUALITIES STARTED FROM JANUARY, 2011 AND THEREAFTER. THE M.D OF THE ASSESSEE HAS NOT EXPLAINED WHY HE HAS FAILED TO COLLECT THE ORDER FR OM THE ADVOCATE FOR FILING THE APPEAL BEFORE THE TRIBUNAL AFTER THE ORDER WAS RECE IVED BY THE ADVOCATE ON 2- 12-2010, WHICH FACT WAS ALSO INTIMATED TO THE ASSES SEE BY THE ASSESSEES COUNSEL AND STOOD COLLECTED THERE FROM ONLY ON 20-1 0-2001, I.E., AFTER OVER TEN MONTHS. IT IS A FURTHER GLARING FACT THAT EVEN AFT ER THE COLLECTION OF THE ORDER FROM THE COUNSEL ON 20-10-2011 NO STEPS WERE TAKEN TO FILE THE APPEAL IMMEDIATELY WHICH WAS FILED NEAR ABOUT NINE MONTHS THEREAFTER I.E., ONLY ON 3-7- 2012. THE ASSESSEE HAS NOT AT ALL EXPLAINED WHAT P REVENTED THE ASSESSEE IN FILING THE APPEAL AFTER COLLECTING THE ORDER FROM T HE ADVOCATE ON 20-10-2011. EVEN ASSUMING THE FACTS STATED IN THE AFFIDAVIT TO BE CORRECT, IT CERTAINLY CANNOT BE ACCEPTED THAT THE M.D WAS SO PRE-OCCUPIED WITH THE POST OPERATIVE CARE OF HIS MOTHER THAT EVEN AFTER COLLECTING THE ORDER FR OM THE COUNSEL, THE APPEAL COULD NOT BE FILED IMMEDIATELY BUT WAS FILED AFTER A FURTHER PERIOD OF 8 MONTHS. LAW IS WELL SETTLED THAT THERE IS NO STRAIGHT JACKE T FORMULA TO DECIDE WHAT CONSTITUTES SUFFICIENT CAUSE. IT DEPENDS UPON FACT S OF EACH INDIVIDUAL CASE. CONDONATION OF DELAY IS NOT AN EMPTY FORMALITY. TH E ASSESSEE IS REQUIRED TO SHOW SUFFICIENT CAUSE THAT HE WAS EITHER BONAFIDE O R WAS PREVENTED BY GENUINE AND SUFFICIENT CAUSE FOR PURSUING THE REMEDY. IT HA S TO BE ESTABLISHED BY THE ASSESSEE THAT THERE WAS NO NEGLIGENCE OR INACTION, OR WANT OF BONA FIDES AND THE RIGHT GRANTED UNDER LAW TO CHALLENGE THE ORDER WAS NOT ABANDONED. CONSIDERED 5 ITA NO.1020 OF 2012 M/S. JAIVEER HOTELSPVT.LTD., HYD. IN THE AFORESAID CONTEXT, WE ARE OF THE VIEW THAT T HE ASSESSEE HAS NOT MADE OUT A SUFFICIENT CAUSE FOR CONDONATION OF DELAY. THE A SSESSEE HAS NOT AT ALL EXPLAINED WHAT PREVENTED IT FROM TAKING STEPS FOR F ILING THE APPEAL AFTER RECEIPT OF THE SAID ORDER BY THE COUNSEL ON 2-12-2010. 7. EVEN ASSUMING THE FACT THAT THERE WAS FAMILY D ISTURBANCE IN M.DS FAMILY, TROUBLE IN BUSINESS ETC., THE ASSESSEE ALS O FAILED TO EXPLAIN WHY IT DID NOT TAKE STEPS FOR FILING THE APPEAL IMMEDIATELY AFTER COLLECTING THE ORDER FROM THE ADVOCATE ON 20-10-2011 AND FILED THE SAME AFTER DELA Y OF 8 MONTHS I.E. IN JULY, 2012. THE DECISIONS RELIED UPON BY THE LEARNED AR OF THE ASSESSEE DO NOT APPLY TO THE FACTS OF THE PRESENT CASE. THE RATIO LAID D OWN IN A JUDGMENT HAS TO BE READ IN THE CONTEXT IN WHICH THEY APPEAR SINCE EACH CASE DEPENDS UPON ITS OWN FACTS. IN THE CONTEXT OF THE FACTS INVOLVED IN THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE FACT THAT THERE WAS SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. AFTER CONSIDERING THE FACTS AND THE CIRCUMSTANCES OF THE INSTANT CASE AND THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE, WE AR E NOT INCLINED TO CONDONE THE DELAY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED WITHOUT BEING ADMITTED. ORDER PRONOUNCED IN THE COURT ON 27-11-2012. SD/- (SANJAY ARORA) ACCOUNTANT MEMBER SD/- (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 27 TH NOVEMBER, 2012. COPY TO:- 1) C/O DR. CP RAMASWAMY, ADVOCATE, FLAT NOS. 102/3 03, GITANJALI APARTMENTS, PLOT NO.108, SRINAGAR COLONY , HYDERABAD. 2) ITO, WARD-2(1), HYDERABAD. 3) THE CIT (A)-III, HYDERABAD. 4) THE CIT CONCERNED, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABA D. JMR* 6 ITA NO.1020 OF 2012 M/S. JAIVEER HOTELSPVT.LTD., HYD.