Shri Krishan Lal, Kurukshetra V. ITO, Kurukshetra

ITA 107/CHANDI/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0040 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 16-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHDR
• Assessee Lawyers: GAGAN DEEP SINGH
• Keywords: Period of limitation; Question of law; Corroborative evidences; Condonation of delay
• Section: 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 107/CHD/2016 ASSESSMENT YEAR: 2010-11 SHRI KRISHAN LAL, VS THE ITO, S/O SHRI NARAYAN DASS,PROP. WARD -1, M/S MAHALAKSHMI CAR BAZAR. KURUKSHETRA. SECTOR 17,KURUKSHETRA. PAN: AOGPK6695B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAGANDEEP S INGH RESPONDENT BY : SHRI MANJIT SINGH,DR DATE OF HEARING : 28.04.2016 DATE OF PRONOUNCEMENT : 03.05.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-II GURGAON DATED 10.12.2015 FOR ASSESSMENT YEAR 2010-11. 2. BRIEFLY THE FACT OF THE CASE ARE THAT THE ASSESS EE FILED RETURN OF INCOME AT RS. 99,750/- AND AGRICULT URE INCOME OF RS. 5,05,000/-. THE CASE WAS SELECTED FO R SCRUTINY AND STATUTORY NOTICES WERE ISSUED AGAINST THE ASSESSEE FOR COMPLETION OF THE ASSESSMENT. THE ASSESSEE DID NOT COMPLY THE NOTICES AND ULTIMATELY, 2 ASSESSEE DID NOT APPEAR BEFORE ASSESSING OFFICER AN D NO SUBMISSIONS WERE MADE. THE ASSESSING OFFICER, AS PE R AIR INFORMATION FOUND THAT ASSESSEE MADE DEPOSITS O F RS. 1.57 CR. IN AXIS BANK, KURUKSHETRA FOR WHICH NO EXPLANATION HAVE BEEN FILED. THEREFORE, ADDITION UN DER SECTION 69 OF THE ACT WAS MADE AND FURTHER SMALL ADDITION WAS MADE AND COMPUTED THE INCOME OF THE ASSESSEE BY PASSING EX-PARTE ORDER UNDER SECTION 14 4 OF THE ACT ON 25.03.2013. 3. THE ASSESSEE PREFERRED THE APPEAL BEFORE LD. CIT(APPEALS) AND IT WAS EXPLAINED THAT ASSESSMENT O RDER WAS RECEIVED ON 30.03.2013, HOWEVER, APPEAL WAS FIL ED BEFORE LD. CIT(APPEALS) ON 04.09.2013. THEREFORE, THERE WAS DELAY OF MORE THAN FOUR MONTHS IN FILING APPEAL . THE ASSESSEE REQUESTED FOR CONDONATION OF DELAY IN FILI NG APPEAL EXPLAINING IN THE APPLICATION FOR CONDONATIO N OF DELAY THAT ASSESSMENT ORDER AND NOTICE OF DEMAND WA S HANDED OVER TO SHRI RUPINDER SINGH, ADVOCATE FOR FURTHER ACTION BUT DUE TO HIS MISTAKE, APPEAL COULD NOT BE FILED ON TIME. HIS AFFIDAVIT IN SUPPORT OF THE APPLICATION WAS FILED. THE LD. CIT(APPEALS) FOUND THAT THE CONTENTION OF THE ASSESSEE IS WITHOUT ANY BASIS AND NO SUPPORTING EVIDENCES HAVE BEEN FURNISHED IN THIS REGARD AND REFUSED TO CONDONE THE DELAY IN FILING O F APPEAL AND DISMISSED APPEAL OF THE ASSESSEE BEING N OT MAINTAINABLE AS TIME BARRED. 3 4. AFTER HEARING RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE LD. CO UNSEL FOR THE ASSESSEE REFERRED TO THE AFFIDAVIT OF SHRI RUPINDER SINGH, ADVOCATE WHICH WAS FILED BEFORE LD. CIT(APPEALS) IN SUPPORT OF APPLICATION FOR CONDONAT ION OF DELAY. IN THIS AFFIDAVIT, SHRI RUPINDER SINGH, DEPONENT HAS MERELY MENTIONED, THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, THE DEPONENT FAILED TO F ILE APPEAL BEFORE LD. CIT(APPEALS), KARNAL IN TIME AND LOST THE ORIGINAL ORDER AND APPEAL FORM NO. 35 TOO. IT IS NOT EXPLAINED IN THE AFFIDAVIT THAT WHAT WERE THE UNAVOIDABLE CIRCUMSTANCES FOR NOT FILING APPEAL WIT HIN THE PERIOD OF LIMITATION BEFORE LD. CIT(APPEALS), K ARNAL. IT IS ALSO MENTIONED IN THE AFFIDAVIT THAT HE LOST THE ORIGINAL ORDER. THERE IS NO REQUIREMENT TO FILE ORI GINAL ORDER ALONGWITH THE APPEAL PAPERS. IT IS ALSO EXPL AINED THAT HE LOST FORM NO. 35 TOO. THIS FORM NO. 35 COU LD ALSO BE PREPARED AFRESH IN DUPLICATE WHICH IS VERY SIMPLE OF JUST TWO PAGES ONLY. THUS, THE AFFIDAVIT OF SHRI RUPINDER SINGH WOULD BE OF NO HELP TO THE ASSESSEE AND IT DID NOT EXPLAIN WHAT WAS THE SUFFICIENT/REASONAB LE CAUSE FOR FAILURE TO FILE THE APPEAL BEFORE LD. CIT(APPEALS) WITHIN THE PERIOD OF LIMITATION. 4(I) IT IS WELL SETTLED LAW THAT DELAY IN FILING AP PEAL COULD BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SU PPORTED BY COGENT AND PROPER EVIDENCES. BUT IN THE CASE OF THE ASSESSEE, ASSESSEE FAILED TO EXPLAIN ANY SUFFICIENT AND GOOD 4 REASONS FOR DELAY IN FILING THE APPEAL AND NO COGEN T OR PROPER EVIDENCE HAVE BEEN FILED IN SUPPORT OF THE A LLEGED EXPLANATION. WE RELY UPON DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS RAM MOHA N KABRA 257 ITR 773 IN WHICH EVEN DELAY OF FEW DAYS W AS NOT CONDONED. IN THIS CASE, IT WAS HELD AS UNDER : WHETHER THE LEGISLATURE SPELLS OUT A PERIOD OF LIM ITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SU CH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND- GOOD REASONS SUPP ORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW T HAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLI ED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. AUTHORITIES EXERCISING JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, THAT PER SE, WOULD NOT MAKE SUC H CONTROVERSY A QUESTION OF LAW'. SO LONG AS SUCH DECISION OF TH E AUTHORITY IS IN CONFORMITY PRINCIPLE OF LAW AND IS APPARENTLY A PRU DENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. ONCE THE CONCERNED AUTHORITY APPLIES IT S MIND AND DECLINES TO CONDONE THE DELAY IN FILING THE APPEAL FOR GOOD AND APPROPRIATE REASONS, IT CANNOT GIVE RISE TO A QUESTION OF LAW. HELD, THAT SPECIFIC REASONS HAD BEEN GIVEN BY THE T RIBUNAL FOR REFUSAL TO CONDONE THE DELAY IN FILING THE APPEAL W HICH WERE NOT ONLY LOGICAL BUT REFLECTED THE CONDUCT OF THE DEPARTMENT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD INSPITE OF SEEKING TIME. NO QUESTION OF LAW AROSE FROM THE ORDER. 5. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF BHARAT AUTO CENTRE VS CIT DATED 08.07.2005 AND DECISION OF THE SUPREME COURT IN THE CASE OF VEDA B AI ALIAS VIJYANTA BAI BABURAO PATIL DATED 20.07.2001 ON THE PROPOSITION THAT IN THE MATTER OF CONDONATION O F 5 DELAY, A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAKEN AND DISTINCTION MUST BE MADE BETWEEN A CASE WHERE DELAY IS INORDINATE AND A CASE WHERE DELAY IS OF FEW DAYS. BOTH THESE DECISIONS WOULD NOT SUPPORT THE CASE OF THE ASSESSEE BECAUSE THE ASSESSEE HAS FAILED TO EXPLAIN WHAT WERE THE CIRCUMSTANCES DUE TO WHICH THE APPEAL COUL D NOT BE FILED WITHIN THE PERIOD OF LIMITATION. THE REASONS GIVEN IN THE AFFIDAVIT OF SHRI RUPINDER SINGH, ADVO CATE ARE VAGUE AND INCORRECT. THEREFORE, ASSESSEE FAILED TO EXPLAIN THE DELAY IN FILING APPEAL WITHIN PERIOD OF LIMITATION BEFORE LD. CIT(APPEALS). THEREFORE, LD. CIT(APPEALS) WAS JUSTIFIED IN NOT CONDONING THE DEL AY IN FILING APPEAL BEFORE HIM WITHIN PERIOD OF LIMITATIO N. NO INFIRMITY HAVE BEEN POINTED OUT IN THE ORDER OF THE LD. CIT(APPEALS), THEREFORE, WE DO NOT FIND ANY JUSTIFI CATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(APPEALS) . WE CONFIRM HIS FINDINGS AND DISMISS THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/ SD/ ( ANNAPURNA GUPTA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD MAY,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD