M/s. Shivam Construction, V. The ACIT.,Circle-5, Surat

ITA 1027/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6331 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-05-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 18-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAXMI
• Assessee Lawyers: MITESH M MOD I
• Keywords: Assessment record; Condonation of delay
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD CAMP AT SURAT (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 1027/AHD./2008 ASSESSMENT YEAR : 2001-2002 M/S. SHIVAM CONSTRUCTION, SURAT -VS.- AS SISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5, SURAT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MITESH M. MOD I RESPONDENT BY : SMT. JYOTI LAXMI, SR . D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 30.11.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-III, SURAT DISM ISSING THE APPEAL OF THE ASSESSEE BEING OUT OF TIME FOR THE ASSESSMENT YEAR 2001-02. 2. GROUND NO. 1 RAISED BY THE ASSESSEE IN ITS APPEA L IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEALS)-III, SURAT IS NOT JUSTIFIED IN DENYIN G TO CONDONE THE DELAY AND REJECTING THE APPEAL AS BARRED BY LIMITATION INSPIT E OF THE UNINTENTIONAL AND BONAFIDE DELAY IN FILING APPEAL WAS SATISFACTORILY EXPLAINED WITH EVIDENCES, PREVENTING THE APPELLANT TO FILE APPEAL IN TIME FOR THE GOOD AND SUFFICIENT CAUSE. 3. BRIEF FACTS RELATING TO CONTROVERSY INVOLVED IN THE AFORESAID GROUND OF APPEAL IS THAT FOR THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSING OFF ICER FRAMED THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 144 OF THE INCOME TAX ACT ON 31.03.2004. AGAINST THE SAID ORDER, THE LAST DATE OF FILING THE APPEAL BEFORE THE LD. CIT(A ) WAS 30.04.2004. THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) ON 09.02.2007, WHICH MEANS A DELAY OF 33 MONTHS AND 9 DAYS. BEFORE THE LD. CIT(A), THE REASONS GIVEN FOR CONDONATION OF DE LAY WAS THAT THE PARTNERS OF THE FIRM WERE BASICALLY CIVIL CONTRACTORS TO EXECUTE THE GOVERNME NT AND SEMI-GOVERNMENT PROJECTS AND HAD TO REMAIN PRESENT AT THE PROJECT SITE FOR LONG PERIODS . THEY WERE EXTREMELY BUSY WITH THE PROJECT AT 2 ITA NO. 1027/AHD/200 8 JAMNAGAR, RAJKOT, AHMEDABAD, NAVSARI, ETC. THE REGI STERED OFFICE OF THE FIRM WAS AT KAMREJ AND THE SAID ASSESSMENT ORDER SERVED AT THE KAMREJ ADDR ESS KEPT LYING WITH THE OFFICE SINCE THE STAFF DID NOT INFORM ANYONE ABOUT THE ORDER. IT WAS ONLY IN FEBRUARY, 2007 THAT THE PARTNERS CAME TO KNOW ABOUT THE ASSESSMENT ORDER AND SO IMMEDIATELY APPROACHED THE COUNSEL AND FILE THE IMPUGNED APPEAL. 4. THE LD. CIT(A) IN THE IMPUGNED ORDER, REFUSED TO CONDONE THE DELAY OF 33 MONTHS AND 9 DAYS ON THE GROUND THAT THE ASSESSMENT ORDER WAS SE RVED ON 01.04.2004. THERE IS AN INORDINATE DELAY OF ABOUT THREE YEARS IN FILING THE SAID APPEA L. THE LD CIT(A) IN THE IMPUGNED ORDER ALSO OBSERVED THAT THE REGISTERED OFFICE OF THE FIRM IS AT KAMREJ AND OBVIOUSLY SOME STAFF WOULD BE AVAILABLE AT THE OFFICE FOR ROUTINE AND URGENT CORR ESPONDENCE AND MAINTENANCE OF BOOKS OF ACCOUNTS WHICH HAVE TO BE KEPT AT THE REGISTERED OF FICE. THEREFORE, IT WAS HIGHLY UNLIKELY THAT NONE OF THE PARTNERS OF THE FIRM WOULD NOT VISIT TH E REGISTERED OFFICE EVEN ONCE IN THREE YEARS. THE LD. CIT(A) FURTHER OBSERVED THAT THE ASSESSEE IS FI LING THE RETURN OF INCOME AFTER GETTING THE ACCOUNTS AUDITED EVERY YEAR AND, THEREFORE, WOULD B E IN CONSTANT TOUCH WITH THE AUDITORS AND TAX CONSULTANTS WHO WOULD OBVIOUSLY BE SURAT BASED AND IT IS BEYOND COMPREHENSION AS TO WHY EVEN THE EXPERTS WERE NOT HAVING ANY KNOWLEDGE OF THE SA ID ASSESSMENT ORDER WITH A HUGE DEMAND OF MORE THAN RS.13 LACS, WHICH WAS OUTSTANDING AGAINST THE FIRM AS A RESULT OF THE IMPUGNED ORDER. THE LD. CIT(A) ACCORDINGLY CONCLUDED THAT THERE IS NO JUSTIFIABLE REASON FOR FILING THE APPEAL LATE BY APPROXIMATELY THREE YEARS. HE ACCORDINGLY REFUS ED TO CONDONE THE DELAY AND DISMISSED THE APPEAL OF THE ASSESSEE AS UNADMITTED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING BEFORE US, SHRI MITESH M. MODI, LD. COUNSEL APPEARED ON BEHALF OF THE ASSESSEE AND INITIALLY ARGUED THAT THERE IS A S UFFICIENT CAUSE OF DELAY FOR FILING THE APPEAL BEFORE THE LD. CIT(A), WHICH WAS NOT CONDONED BY TH E LD. CIT(A). THE LD. COUNSEL OF THE ASSESSEE PRAYED THAT THE SAME BE CONDONED. 7. ON THE OTHER HAND, SMT. JYOTI LAXMI, SR. D.R. AP PEARING ON BEHALF OF THE REVENUE ASKED ONE DAY TIME TO VERIFY THE FACTUAL MATRIX FROM THE ASSESSMENT RECORD. ON THE NEXT DATE OF HEARING, 3 ITA NO. 1027/AHD/200 8 I.E. ON 21.05.2010, SHE PRODUCED VARIOUS EVIDENCES FROM THE ASSESSMENT RECORD, WHICH INDICATE THAT THE ASSESSMENT ORDER WAS SERVED ON THE PARTNER AND THE ASSESSEE IS NOT COMING WITH THE CLEAN HANDS IN PRAYER FOR CONDONATION OF DELAY BEFORE THE LD. CIT(A). 8. AFTER ENQUIRY FROM THE PARTNERS OF THE ASSESSEE- FIRM, THE PARTNER OF THE ASSESSEE-FIRM NAMELY SHRI JAYANTIBHAI T. LIKHIA FINALLY ADMITTED THAT THE APPEAL BEFORE THE LD. CIT(A) WITH THE APPLICATION OF CONDONATION OF DELAY WAS FILED, WHIC H WAS UNDER COMPLETE MISUNDERSTANDING AND MISCOMMUNICATION OF THE MANAGING PARTNER OF THE FIR M MR. DINESH B. PATEL. HOWEVER, AFTER DUE CONSULTATION WITH THE PARTNERS OF THE ASSESSEE-FIRM , THE ASSESSEE-FIRM DECIDED TO WITHDRAW THE APPEAL FILED BEFORE THE TRIBUNAL. ON THE BASIS OF T HIS, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE BE PERMITTED TO WITHDRAW ITS APPE AL. 9. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUT HORITIES BELOW. PRIMA FACIE, IT APPEARS THAT DUE TO COMPLETE MISUNDERSTANDING AND MISCOMMUN ICATION AMONGST THE PARTNERS, BEFORE THE LD. CIT(A) THE REASONS FOR CONDONATION OF DELAY WER E NOT CORRECTLY STATED. BE THAT AS IT MAY, NOW ASSESSEE-FIRM HAS DECIDED TO WITHDRAW ITS APPEAL FI LED BEFORE THE ITAT. SINCE THIS IS AN ASSESSEES APPEAL, THE REQUEST OF THE LD. COUNSEL O F THE ASSESSEE IS ACCEPTED AND THIS APPEAL IS DISMISSED AS WITHDRAWN. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 28.05.2010 . SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 / 05 /2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPU TY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.