Sh. Balwan Singh, Panchkula V. ITO, Chandigarh

ITA 1204/CHANDI/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0680 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-07-2016
• Assessment Year: 1995-1996
• Appeal Filed On: 11-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: BALWAN SINGH
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, J M ITAS NO. 1203 & 1204/CHD/2010 ASSESSMENT YEAR : 1995-96 BALWAN SINGH V I.T.O. L/H OF LATE SMT. DAKHAN DEVI WARD 1(4) VPO SAKETARI CHANDIGARH PANCHKULA ATVPB 6328 E (APPELLANT) (RESPONDENT) APPELLANT BY SHRI BALWAN SINGH (ASSESSEE) RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING 26.2.2013 DATE OF PRONOUNCEMENT .2.2013 O R D E R PER T.R.SOOD, A.M THESE APPEALS ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A)-XX, NEW DELHI, PATIALA CAMP DATED 21 .3.2005 AND LD. CIT(A), PANCHKULA DATED 28.11.2008. 2. IN THESE APPEALS THE ASSESSEE HAS RAISED VARIOUS GROUNDS BUT AT THE OUTSET THE LD. DR FOR THE REVENUE RAISED AN OBJECTION THAT THESE APPEALS HAVE BEEN FILED LATE, THEREFORE, SHOULD NOT BE ADMITTED. 3 IN THIS CASE THE FIRST APPELLATE AUTHORITY I.E. T HE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER ON 21.3.2005 IN QUANT UM APPEAL AND ON 28.11.2008 IN APPEAL RELATING TO PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. THE APPEALS HAVE BEEN FILED BEFORE THE TRIBUNAL ON 11.10.2010 WHICH MEANS QUANTUM APPEAL IS LATE BY MORE THAN FIVE YEARS AND PENALTY APPEAL IS 2 LATE BY APPROXIMATELY TWO YEARS. HOWEVER, AFTER PE RUSAL OF RECORD IT BECOMES CLEAR THAT THE ASSESSEE INSTEAD O F PREFERRING AN APPEAL BEFORE THE TRIBUNAL HAD MOVED THE HON'BLE HIGH COURT BY WAY OF WRIT PETITIONS NO. 5292 OF 2009 (O& M) AND 11443 OF 2009. BEFORE THE HON'BLE HIGH COURT IT WA S POINTED OUT BY THE REVENUE THAT THE ASSESSEE HAD ALTERNATE REMEDY OF FILING AN APPEAL BEFORE THE ITAT AND THEREFORE, THE ASSESSEE HAD AGREED TO WITHDRAW THE WRIT PETITIONS AFTER THE HON'BLE HIGH COURT HAD ALLOWED THE LIBERTY TO FILE APPEAL B EFORE THE TRIBUNAL WITHIN 15 DAYS. THUS THE APPEALS WERE FIL ED BEFORE THE TRIBUNAL BUT THEY WERE FILED BEYOND THE TIME AL LOWED BY THE HON'BLE HIGH COURT. THE APPLICATION OF CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT, HAS BEEN FILED. 4 BEFORE US, SHRI BALWAN SINGH (ASSESSEE) APPEARED PERSONALLY. HE SUBMITTED THAT HE ENQUIRED FROM HIS COUNSEL ABOUT THE FATE OF ORDER PASSED BY HON'BLE HIGH COUR T. THE SAID COUNSEL INFORMED HIM THAT HON'BLE HIGH COURT HAS CO NDONED THE DELAY WITH THE CONDITION THAT THE APPEALS HAVE TO BE FILED WITHIN 15 DAYS BEFORE THE ITAT. IT WAS FURTHER INF ORMED THAT THE COUNSEL CAN APPLY FOR A CERTIFIED COPY OF THE O RDER ONLY ON 7.9.2010 BUT THE CERTIFIED COPIES WERE SUPPLIED ON 1.10.2010 AND THE ASSESSEE FILED APPEAL ON 11.10.2010 I.E. WI THIN 15 DAYS FROM THE RECEIPT OF CERTIFIED COPIES OF THE OR DER AND STRICTLY SPEAKING IT CAN NOT BE CALLED LATE FILING OF THE APPEAL AND THEREFORE, HE PRAYED FOR CONDONATION OF DELAY. 5 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE CAR RIED US THROUGH THE ORDER OF HON'BLE HIGH COURT AND INVITED OUR ATTENTION TO PARA 6 OF THE ORDER WHICH CLEARLY STAT ES THAT APPEALS HAVE TO BE FILED WITHIN 15 DAYS FROM TODAY WHICH MEANS WITHIN 15 DAYS I.E. SEPT 6, 2010 WHEREAS APPE ALS HAVE 3 BEEN FILED ON 11.10.2010 WHICH IS BEYOND THE TIME G IVEN BY THE HON'BLE HIGH COURT AND THEREFORE, THE TRIBUNAL HAS NO POWER TO CONDONE THE DELAY. 6 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. W E FIND THAT THE IMPUGNED ORDERS HAVE BEEN PASSED IN THE YE AR 2005 AND 2008 AND THEREFORE, ACTUAL DELAY IS MUCH MORE T HAN 20 DAYS AS STATED IN THE CONDONATION APPLICATION. HOW EVER, IT BECOMES CLEAR FROM RECORD THAT THE ASSESSEE HAD APP ROACHED THE HON'BLE HIGH COURT RAISING VARIOUS DISPUTES BEF ORE THE HON'BLE HIGH COURT. THE DEPARTMENT RAISED PRELIMIN ARY OBJECTIONS THAT THE ASSESSEE HAD ALTERNATIVE REMEDY OF FILING APPEAL BEFORE THE TRIBUNAL. IT SEEMS ACCORDINGLY S INCE THE ASSESSEE AGREED TO WITHDRAW THE WRIT PETITIONS AND HON'BLE HIGH COURT GRANTED TIME OF 15 DAYS FOR FILING APPEA L BEFORE THE TRIBUNAL. ORDER OF THE HON'BLE HIGH COURT DATED 6. 9.2010 READS AS UNDER: 1 THIS ORDER WILL DISPOSE OF CWP NOS. 5292 AND 114 43 OF 2009 AS BOTH THE PETITIONS RAISE IDENTICAL QUEST ION OF VALIDITY OF ORDER OF ASSESSMENT AND LEVY OF PENALTY UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961 (FOR SHO RT, THE ACT.) 2 ON ACCOUNT OF SALE OF HOUSE ATTRACTING CAPITAL G AIN ON WHICH NO TAX WAS PAID, RE-ASSESSMENT PROCEEDINGS WERE INITIATED AND ASSESSMENT WAS MADE WHICH RESULT ED IN CREATING DEMAND OF TAX AND ALSO RESULTED IN LEVY OF PENALTY. GROUND TAKEN IN THE WRIT PETITION IN CHALL ENGING THE DEMAND IS THAT JURISDICTION TO MAKE ASSESSMENT WAS VESTED IN ASSESSING OFFICER AT PANCHKULA AND NOT AT CHANDIGARH. 3 IN THE REPLY FILED BY ITO, PANCHKULA APART FROM DEFENDING THE IMPUGNED ORDER ON MERITS, PRELIMINARY OBJECTION HAS BEEN RAISED REGARDING AVAILABILITY OF REMEDY OF APPEAL BEFORE THE TRIBUNAL U/S 253 OF THE ACT. 4 LD. COUNSEL FOR THE PETITIONER POINTS OUT THAT CE RTIFIED COPY WAS NOT SUPPLIED TO HIM AND ONLY PHOTO COPY WA S SUPPLIED AS PER LETTER DATED 20.3.2009 AND ON ACCOU NT OF THAT HANDICAP, WRIT PETITION HAS BEEN FILED. 4 5 IN RESPONSE TO THE ABOVE OBJECTION, LD. COUNSEL F OR THE REVENUE REFERS TO RULE 9 OF THE INCOME TAX APPE LLATE TRIBUNAL RULES, 1963 WHICH PROVIDES THAT APPEAL WIL L LIE EVEN AGAINST PHOTO COPY OF THE ORDER WHICH MAY BE SUPPLIED IN THE MANNER PROVIDED THEREIN. 6 IN VIEW OF ABOVE, THESE PETITIONS ARE DISMISSED A S WITHDRAWN, AS PRAYED, WITH LIBERTY TO FILE APPEALS BEFORE THE INCOME TAX APPELLATE TRIBUNAL. IF APPEA LS ARE FILED WITHIN 15 DAYS FROM TODAY NO OBJECTION OF LIMITATION WILL BE RAISED. 7 FROM ABOVE ORDER IT BECOMES CLEAR THAT THE ASSESS EE HIMSELF HAS AGREED TO WITHDRAW WRIT PETITIONS AND A CCORDINGLY THE HON'BLE HIGH COURT GAVE LIBERTY OF FILING OF AP PEAL BEFORE THE TRIBUNAL WITHIN 15 DAYS FROM THE DATE OF THE OR DER I.E. 6.9.201. THE LANGUAGE OF PARA 6 OF THE ABOVE ORDER CLEARLY SHOWS THAT THE ORDER HAS BEEN PRONOUNCED IN THE OPE N COURT. THE WAY WORD TODAY HAS BEEN USED IN PARA 6 CLEARL Y SHOWS THAT THE ASSESSEE WAS GIVEN 15 DAYS TIME TO FILE TH E APPEAL BEFORE THE TRIBUNAL FROM THE DATE OF THE ORDER. TH ERE IS NO AMBIGUITY THAT THE ASSESSEE WAS GIVEN ONLY 15 DAYS TIME AND THE ASSESSEE SHOULD HAVE FILED APPEAL BEFORE THE TR IBUNAL WITHIN SUCH TIME ALLOWED BY THE HON'BLE HIGH COURT WITHOUT WAITING FOR CERTIFIED COPIES OF THE ORDER. IN ANY CASE NO EVIDENCE HAS BEEN SHOWN BEFORE US TO PROVE THAT IT TOOK ALMOST A MONTH FOR THE ASSESSEE TO OBTAIN CERTIFIED COPIES FROM THE HON'BLE HIGH COURT. SINCE THE HON'BLE HIGH COURT H AS ALLOWED THE ASSESSEE A TIME OF 15 DAYS FOR FILING OF APPEAL S BEFORE THE TRIBUNAL WHICH HAS NOT BEEN COMPLIED AND THE APPEAL S ARE LATE BY ALMOST 20 DAYS BECAUSE TIME OF 15 DAYS WOULD EXP IRE ON 21.9.2010 WHEREAS APPEALS HAVE BEEN FILED ON 11.10. 2010. IN THESE CIRCUMSTANCES, WE REFUSE TO CONDONE THE DELAY AND DISMISS THE APPEALS ACCORDINGLY. IN VIEW OF THE APP EAL BEING 5 DISMISSED ON LIMITATION GROUNDS RAISED ON MERITS AR E NOT BEING ADJUDICATED. 8. IN THE RESULT, APPEALS OF THE ASSESSEE ARE DISMI SSED. ORDER PRONOUNCED ON .2.2013 (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : .2.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR