Thiru Arooran Sugars Ltd., CHENNAI V. ACIT, CHENNAI

ITA 1065/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9435 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 28-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2015
• Court: TRIBUNAL
• Department Lawyers: PATHLAVATH PEERYA
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Depreciation; Rectification of order; Reasonable cause; Corroborative evidences; Condonation of delay; Unabsorbed depreciation; Ignorance of law
• Section: 143(3); 32; 154

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 1065/MDS/2015 / ASSESSMENT YEAR :2007 - 08 M/S. THIRU AROORAN SUGARS LTD., ELDORADO, V FLOOR, 112, MAHATMA GANDHI ROAD, CHENNAI 600 034. [PAN: A AAC T 2382B ] VS. THE ASSISTANT COMMISSIONER OF INCOME TA X , CORPORATE CIRCLE 3(2) , CHENNAI 600 034 . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE / RESPONDENT BY : SHRI PATHLAVATH PEERYA , J CIT / DATE OF HEARING : 28 . 0 3 .201 6 / DATE OF P RONOUNCEMENT : 29 . 0 4 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 11 , CHENNAI , DATED 1 2 . 0 3 .20 15 RELEVANT TO THE ASSESSMENT YEAR 2007 - 08. THE FIRST EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL IN - LIMINE WITHOUT CONDONING THE DELAY OF 528 DAYS IN FIL ING THE APPEAL. I.T.A. NO . 1065 /M/ 15 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF SUGAR AND MOLASSES. THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 30.10.2007 ADMITTING NIL INCOME. THE RETURN WAS PROCESSED UNDER SEC TION 143(1) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON 24.11. 2009 BY ARRIVING AT AN ASSESSED INCOME OF .9,84,42,320/ - AFTER MAKING ADDITIONS/ DISALLOWANCES AND SETTING OFF OF LOSSES TO THE EXTENT OF .9,60,32,898/ - . ON RECEIPT OF THE ORDER UNDER SECTION 143(3) OF THE ACT, THE ASSESSEE HAS FILED A RECTIFICATION PETITION UNDER SECTION 154 BEFORE THE ASSESSIN G OFFICER WITH A REQUEST TO DELETE THE DISALLOWANCE OF .4,59,60,310/ - AND ADOPTION OF CORRECT AMOUNT OF SET OFF OF BROUGHT FORWARD LOSSES. AN APPEAL BEFORE THE LD. CIT(A) WAS ALSO FILED AGAINST THE ORDER UNDER SECTION 143(3) OF THE ACT. 3. FURTHER, THE ASSESSING OFFICER PASSED RECTIFICATION ORDER UNDER SECTION 154 OF THE ACT DATED 12.10.2011 AFTER HEARING TO THE ASSESSEE AND HELD THAT THE UNABSORBED DEPRECIATION LOSSES PERTAINING TO ASSESSMENT YEAR 1997 - 98 CAN BE CARRIED FORWARD ONLY UPTO 8 SUCCESSIVE A SSESSMENT YEARS IN VIEW OF AMENDMENT TO SECTION 32 OF THE ACT . HENCE, BALANCE DEPRECIATION LOSS OF .12,72,10,004/ - OF ASSESSMENT YEAR 1997 - 98 LAPSED WAS NOT ALLOWED TO BE CARRIED FORWARD AND THE CLAIM OF THE ASSESSEE WAS DISALLOWED. I.T.A. NO . 1065 /M/ 15 3 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). THE APPEAL BEFORE THE LD. CIT(A) WAS FOUND TO HAVE B EEN FILED LATE BY 528 DAYS. THE ASSESSEE HAS ALSO FILED CONDONATION PETITION TO CONDONE THE DELAY. AFTER CONSIDERING THE PETITION FILED BY THE ASSESSEE, THE LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE SINCE THERE WAS NO SUFFICIENT CAUSE TO DE LAY IN FILING THE APPEAL. 5. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSIONS AS MADE BEFORE THE LD. CIT(A). ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE PREFERRED AN APPEAL WITH A DELAY OF 528 DAYS AND ALSO FILED PETITION FOR CONDONATION OF DELAY IN FI LING THE APPEAL BEFORE THE LD. CIT(A). WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE, THE LD. CIT(A) HAS OBSERVED THAT THERE WAS NO SUFFICIENT CAUSE STATED IN THE PETITION FILED FOR CONDONATION OF HUGE DELAY OF 528 DAYS IN FILING THE APPEAL BEFORE THE LD. CIT(A). THE REASONS STATED IN THE PETITION FOR CONDONATION OF DELAY AS WELL AS OBSERVATIONS OF THE LD. CIT(A) ARE REPRODUCED HEREUNDER: 5. BEFORE ADJUDICATING ON THE MERITS OF THE CASE, FIRST THE DELAY IN FILING OF APPEAL IS TO BE DECIDED, HENCE THE SAME IS TAKEN UP FIRST. I.T.A. NO . 1065 /M/ 15 4 6. THE ORDER WAS RECEIVED ON 20.10.2011 AND THE DUE DATE FOR FILING OF APPEAL IS 19.11.2011 WHEREAS IT HAD BEEN FILED ON 11.04.2013. HENCE, FOR THE DELAY OF MORE THAN 500 DAYS, 528 DAYS TO BE EXACT AS PER THE CONDONATION PETITION , THE APPELLANT FILED A CONDONATION PETITION DATED 09.04.2013 ALONG WITH THE APPEAL PAPERS. 7. THE APPELLANT FILED A CONDONATION PETITION SUBMITTING THAT THE DELAY HAPPENED AS THE PROFESSIONAL EMPLOYED TO ATTEND TO TAX RELATED WORKS LEFT THE SERVICES OF THE APPELLANT COMPANY IN SEPTEMBER, 2011. THE SAID PROFESSIONAL REJOINED THE APPELLANT IN 2013 WHO NOTICED THAT AN APPEAL NEEDS TO BE FILED ON THE ISSUES CONTAINED THEREIN FOR THE RELEVANT YEAR. ACCORDINGLY, AN APPEAL WAS FILED BY THE APPELLANT WITH A DEL AY OF 528 DAYS. IN THE CONDONATION PETITION, IT WAS FURTHER SUBMITTED THAT THE DELAY WAS DUE TO IGNORANCE OF LAW BY THE OTHER PERSONNEL OF THE APPELLANT AND WAS GENUINE OMISSION AND HENCE TO BE CONSIDERED. 7.1 THE FACTS & REASONS MENTIONED IN THE PETITI ON FOR CONDONATION OF DELAY ARE CAREFULLY CONSIDERED. THE APPELLANT HAS THE SERVICES OF THE QUALIFIED CHARTERED ACCOUNTANTS / ADVOCATES WHO REPRESENTED BEFORE THE AO AND ALSO FILED APPEAL BEFORE THE APPELLATE AUTHORITIES AND POWER WAS ALSO ENCLOSED. HENCE, THE SUBMISSION THAT THE DELAY IS DUE TO IGNORANCE OF LAW BY OTHER NON - QUALIFIED PERSONNEL BECAUSE OF WHICH THE APPEAL COULD NOT BE FILED IN TIME IS DIFFICULT TO ACCEPT. 7.2 IT IS SETTLED POSITION OF LAW, THAT EACH AND EVERY DAY OF DELAY HAS TO BE EXPLA INED BY THE APPELLANT WITH SUFFICIENT REASON SUPPORTED BY EVIDENCE. RELIANCE IS PLACED ON THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF J.B. ADVANI AND COMPANY (72 ITR 395), HON'BLE BOMBAY HIGH COURT IN THE CASE OF RAJU RAMACHANDRA BHANGDE (148 ITR 398). SIMILARLY, THE HON'BLE DELHI HIGH COURT IN THE CASE OF SRIMATHI PHOOL AGARWAL (141 ITR 774) HELD THAT THE DELAY ON ACCOUNT OF ERROR BY THE ADVOCATE WAS NOT FOUND SUFFICIENT CAUSE TO CONDONE THE DELAY. IN THE PRESENT CASE ALSO, THE REASON STATED BY THE APPELLANT AS MENTIONED IS NOT SUFFICIENT FOR THE UNDERSIGNED TO CONDONE THE DELAY THAT TO WITHOUT ADEQUATE SUPPORTING EVIDENCES. 7.3 SIMILARLY VARIOUS HON'BLE COURTS AND TRIBUNALS HAVE HELD THAT, A TIME BA RRED APPEAL STRIKES AT THE VERY ROUTE OF THE JURISDICTION ITSELF. IT IS NOT THAT THERE IS REASON FOR DELAY, BUT WHAT IS REQUIRED TO BE PROVED IS SUFFICIENT CAUSE. 7.4 WHETHER THE APPEAL IS STRONG ON MERIT OR NOT, BUT TILL SUCH TIME THE DELAY IS NOT COND ONED, THE REST OF THE ISSUES IN APPEAL ARE ACADEMIC. I.T.A. NO . 1065 /M/ 15 5 HENCE, AS THE APPELLANT HAS NOT BEEN ABLE TO SHOW SUFFICIENT CAUSE, SO AS TO CONDONE THE DELAY, THE DELAY OF 528 DAYS IS NOT CONDONED AND THE APPEAL IS DISMISSED IN LIMINE. 7. EVEN BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT SHOWN ANY REASONABLE CAUSE EXCEPT REITERATING THE SUBMISSIONS AS MADE BEFORE THE LD. CIT(A). SINCE THERE WAS NO SUFFICIENT CAUSE FOR DELAY OF 528 DAYS IN FILING THE APPEAL, THE LD. CIT(A) COULD NOT CONDONE THE HUGE DELAY IN FILING THE APPEAL. SINCE, DELAY IN FILING THE APPEAL WAS NOT CONDONED BY THE LD. CIT(A), THE OTHER ISSUES RAISED IN THE APPEAL BEFORE THE LD. CIT(A) WAS RIGHTLY HELD AS ACADEMIC AND REQUIRES NO ADJUDICATION. ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THE 29 TH APRIL , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 29 . 0 4 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.