Chander Prakash Gupta, Solan V. DCIT, Parwanoo

ITA 1188/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90178 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-05-2015
• Assessment Year: 1993-1994
• Appeal Filed On: 27-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ASHWANI K LAL
• Keywords: Period of limitation; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1188/CHD/2013 ASSESSMENT YEAR: 1993-94 SHRI CHANDER PRAKASH GUPTA, VS THE DCIT, C/O M/S BINDAL & CO., CIRCLE, DISTT. SOLAN. PARWANOO. PAN: AAQPG3392M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI K. L AL RESPONDENT BY : SHRI R.K.GUPTA DATE OF HEARING : 25.05.2015 DATE OF PRONOUNCEMENT : 27.05.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) SHIMLA, (H,P,) DATED 30.10.2013 FOR AS SESSMENT YEAR 1993-94. 2. THE ASSESSEE IN THE PRESENT APPEAL CHALLENGED TH E ORDER OF LD. CIT(APPEALS) IN NOT CONDONING DELAY IN FILING T HE APPEAL BEFORE HIM. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT DA TED 07.08.2009 FOR ASSESSMENT YEAR UNDER APPEAL. THE A SSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE LD. CIT(APPE ALS) AND PRESENTED THE APPEAL IN HIS OFFICE ON 23.05.2012 WH EREAS THE DATE OF THE ASSESSMENT ORDER IS 07.08.2009. THE NO TICE OF 2 DEMAND WAS DISPATCHED BY THE ASSESSING OFFICER ON 21.08.2009. THE ASSESSEE MENTIONED THE SERVICE OF THE DEMAND OF NOTICE AS 21.08.2009 IN APPEAL PAPERS FILED BEFO RE LD. CIT(APPEALS). ACCORDING TO LD. CIT(APPEALS), THE A PPEAL SHOULD HAVE BEEN FILED BEFORE HIM ON OR BEFORE 20.09.2009. THUS, THE APPEAL BEFORE LD. CIT(APPEALS) WAS TIME BARRED BY 2 YEARS 8 MONTHS AND 23 DAYS. THE ASSESSEE EXPLAINED BEFORE LD. CIT(APPEALS) THAT NO APPEAL COULD BE PREFERRED AGAI NST THE ORDER BECAUSE VARIOUS LAWYERS WERE ENGAGED DURING T HE COURSE OF PROCEEDINGS. THE COUNSELS ENGAGED WERE SHRI K.D . MOHAN, SHRI K.D.SOOD AND LASTLY SHRI MADHUSUDAN SHARMA, AD VOCATE AT SOLAN. THE ASSESSEE LEFT INSTRUCTIONS WITH THE LOCAL COUNSEL TO FILE THE APPEAL. THE ASSESSEE SIGNED FORM NO. 3 5 FOR FILING APPEAL BEFORE LD. CIT(APPEALS) AND LEFT THE SAME WI TH THE COUNSEL ALONGWITH REQUIRED APPEAL FEES. IT IS ONLY ON 12.05.2012, HE CAME TO KNOW THAT APPEAL HAD NOT BEE N FILED BY THE SOLAN COUNSEL, THEREFORE APPEAL WAS IMMEDIATELY FILED. 4. THE LD. CIT(APPEALS), IN VIEW OF THE ABOVE EXPLA NATION OF THE ASSESSEE NOTED THAT ASSESSEE HAS NOT BEEN PREVE NTED BY ANY SUFFICIENT CAUSE FOR FILING THE APPEAL WITHIN THE P ERIOD OF LIMITATION. THE LD. CIT(APPEALS) NOTED THAT NO SUP PORTING EVIDENCE HAS BEEN FILED IN SUPPORT OF THE EXPLANATI ON. IT WAS ALSO NOTED THAT APPEAL FEES HAS BEEN DEPOSITED ONLY ON 12.05.2012 WHICH WOULD CONTRADICT THE EXPLANATION O F THE ASSESSEE. THE LD. CIT(APPEALS) ACCORDINGLY, DECLIN ED TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE HIM B EYOND THE PERIOD OF LIMITATION. 3 5. AFTER HEARING RIVAL CONTENTIONS OF LD. REPRESENT ATIVES OF BOTH THE PARTIES, WE ARE OF THE VIEW ASSESSEE HAS N O EXPLANATION WHAT-SO-EVER FOR EXPLAINING THE DELAY I N FILING THE APPEAL BEFORE LD. CIT(APPEALS) BEYOND THE PERIOD OF LIMITATION. THE ASSESSEE HAS TO SATISFY THE LD. CIT(APPEALS) TH AT HE HAD SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THE PERIOD OF LIMITATION. THE HON'BLE SUPREME COURT IN THE CA SE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V SHANTA RAM BABURAO PATIL & ORS.253 ITR 798 HELD AS UNDER : IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIM ITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT P REFERRING AN APPEAL OR OTHER APPLICATION WITHIN THE PERIOD PRESCRI BED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUS T BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE A ND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE F ORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH, IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DES ERVES A LIBERAL APPROACH. 6. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE C ASE OF CIT VS RAM MOHAN KABRA 257 ITR 773 HELD AS UNDER : WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SU PPORTED BY COGENT AND PROPER EVIDENCE . IT IS A SETTLED PRINCIP LE OF LAW THAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMIT ATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCE S. AUTHORITIES EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF TH EIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME EL EMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAU SE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND 4 CIRCUMSTANCES, THAT PER SE, WOULD NOT MAKE SUCH CON TROVERSY A QUESTION OF LAW'. SO LONG AS SUCH DECISION OF THE A UTHORITY IS IN CONFORMITY WITH THE PRINCIPLE OF LAW AND IS APPARENTL Y A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFE RE IN SUCH EXERCISE OF DISCRETION. ONCE THE CONCERNED AUTHORIT Y APPLIES ITS MIND AND DECLINES TO CONDONE THE DELAY IN FILING THE A PPEAL FOR GOOD AND APPROPRIATE REASONS, IT CANNOT GIVE RISE T O A QUESTION OF LAW. HELD THAT SPECIFIC REASONS HAD BEEN GIVEN BY THE TR IBUNAL FOR REFUSAL TO CONDONE THE DELAY IN FILING THE APPEA L WHICH WERE NOT ONLY LOGICAL BUT REFLECTED THE CONDUCT OF THE DEPART MENT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD INSPITE OF SEEKING TIME. NO QUESTION OF LAW AROSE FROM THE ORDER. 7. ADMITTEDLY THE APPEAL OF THE ASSESSEE WAS TIME BARR ED BY 2 YEARS 8 MONTHS AND 23 DAYS. THE ASSESSEE WAS REQ UIRED TO FILE APPEAL BEFORE LD. CIT(APPEALS) ON OR BEFORE 20 .09.2009. IF THE EXPLANATION OF THE ASSESSEE HAS TO BE ACCEPTED, THE ASSESSEE SHALL HAVE TO FILE A PROOF THAT APPEAL FEE S WAS PAID BEFORE THE EXPIRY OF THE DATE OF FILING OF THE APPE AL I.E. 20.09.2009. HOWEVER, IN THE PRESENT CASE APPEAL FEE S HAS BEEN DEPOSITED ONLY ON 12.05.2012. THE LD. CIT(APPEALS) WAS, THEREFORE, JUSTIFIED IN HOLDING THAT THE SAME WOULD CONTRADICT THE EXPLANATION OF THE ASSESSEE. FURTHER, NO SUPPO RTING EVIDENCE HAS BEEN FILED IN SUPPORT OF THE EXPLANATI ON. THUS, ASSESSEE HAS NO EXPLANATION WHAT-SO-EVER TO PROVE T HAT ASSESSEE HAD ANY SUFFICIENT CAUSE FOR NOT PRESENTIN G THE APPEAL WITHIN THE PERIOD OF LIMITATION. 8. CONSIDERING THE ABOVE DISCUSSION IN THE LIGHT OF TH E FINDINGS OF LD. CIT(APPEALS), WE ARE OF THE VIEW TH AT LD. 5 CIT(APPEALS) WAS JUSTIFIED IN HOLDING THAT THERE EX IST NO SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL BEF ORE HIM. THEREFORE, LD. CIT(APPEALS) WAS JUSTIFIED IN DISMIS SING THE APPEAL OF THE ASSESSEE HOLDING IT TO BE TIME BARRED . NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LD. CIT(APPEALS). THE APPEAL OF THE ASSESSEE THUS, HAS NO MERIT AND I S ACCORDINGLY DISMISSED. 9. IN THE . RESULT, APPEAL OF THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MAY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH MAY,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH