Sh. Mukesh Mittal, Panchkula V. DCIT, CC-II, Chandigarh

ITA 1213/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6520 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 13-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH CIT DR
• Keywords: Bonafide belief; Period of limitation; Time period of passing order; Condonation of delay
• Section: 271(1)(c); 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CH B, CHANDIGARH .., ! '# #$ %, & '( BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, JM ITA NOS. 1187 & 1213/CHD/ 2018 ASSESSMENT YEARS : 2005-06 & 2007-08 SHRI MUKESH MITTAL H.NO. 515, SECTOR-16 PANCHKULA, HARYANA THE DCIT, CENTRAL CIRCLE-II CHANDIGARH PAN NO: ACBPM4280H APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SACHIN JAIN #!' REVENUE BY : SHRI MANJIT SINGH, CIT DR $ %! & DATE OF HEARING : 29/07/2019 '()*! & DATE OF PRONOUNCEMENT : 01/08/2019 ')/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE TWO APPEALS BY THE ASSESSEE ARE FILED AGAINST THE SEPARATE ORDERS EACH DT. 30/06/2018 OF THE LD. CIT(A)-3, GURGAON. 2. SINCE THE ISSUES INVOLVED ARE COMMON AND THE APP EALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE GROUNDS RAISED IN THE ITA NO. 1187/CHD/2018 READ AS UNDER: 1. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN NOT CONDON ING THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT (A). 2. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN NOT DECIDI NG THE CASE ON LEGAL GROUNDS AS WELL AS ON MERITS. 3. THAT THE LD. AO HAS ERRED IN NOT MENTIONING THE LIM B OF SECTION 271(1)(C ) THAT HAS BEEN VIOLATED BY THE ASSESSEE, IN THE NOTICE IS SUED U/S 274 R.W.S 271 OF THE INCOME TAX ACT, 1961. HENCE, THE PENALTY PROCEEDING IS BAD IN LAW AND THE SAME IS LIABLE TO BE QUASHED. 4. THAT THE LD. AO IS NOT JUSTIFIED IN LEVYING THE PEN ALTY ONLY ON THE BASIS OF ADDITIONS CONFIRMED BY THE APPELLATE AUTHORITIES WI THOUT BRINGING ANYTHING ON RECORD WHICH PROVES THAT THE APPELLANT HAS MADE ANY CONCEALMENT. 5. THAT THE LD. AO IS NOT JUSTIFIED IN LEVYING THE PEN ALTY WITHOUT MENTIONING IN THE PENALTY ORDER THAT WHETHER THE APPELLANT HAS CONCEA LED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF I NCOME. 2 6. THAT THE LD. AO IS NOT JUSTIFIED IN INVOKING THE PR OVISIONS OF EXPLANATION 5A TO SECTION 271(L)(C ) OF THE I.T. ACT FOR INITIATING T HE PENALTY PROCEEDINGS IN THE ASSESSMENT ORDER. 7. THAT THE LD. AO IS NOT JUSTIFIED IN LEVYING THE PEN ALTY AMOUNTING TO RS. 1,61,550/-. 8. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL T HE APPELLANT DISPUTES THE QUANTUM OF PENALTY LEVIED. 9. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION OR AMENDMENT IN THE GROUNDS OF APPEAL TILL THE DISPOSAL OF THE SAME. SIMILAR GROUNDS HAVE BEEN RAISED IN ITA NO. 1213/CH D/2018 FOR THE A.Y. 2007-08, THE ONLY DIFFERENCE IS IN THE AMOUNT OF PE NALTY LEVIED BY THE A.O. FROM THE ABOVE GROUNDS IT WOULD BE CLEAR THAT THE G RIEVANCE OF THE ASSESSEE RELATES TO THE ACTION OF THE LD. CIT(A) IN NOT CONDONING THE DELAY IN FILING THE APPEAL BEFORE HIM. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. LEV IED THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS ACT), SINCE THE ADDITIONS WERE MADE WHILE PASSING THE ASS ESSMENT UNDER SECTION 153 A R.W.S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS ACT). THE APPEAL FILED BEFORE THE LD. CIT(A) WAS BELATED AND THE ASSESSEE FURNISHED THE APPLICATION FOR CONDONATION OF DELAY STATING THEREI N AS UNDER: MUKESH MITTAL (HEREIN AFTER REFERRED AS ASSESSEE) S/O SHRI RAM KUMAR, R/O H.NO- 515, SECTOR-16, PANCHKULA. (HARYANAJ DO HEREBY SOLE MNLY AFFIRM AND DECLARE AS UNDER.- 1. THAT THE ASSESSEE HAS RECEIVED THE PENALTY ORDERS O F LD. AO FOR A YRS 2005-06, 2006-07, 2007-08 AND 2009-10 ON 30.03.2015 AND ALL THE SAID ORDERS OF LD. AO WERE GIVEN TO THE OLD COUNSEL OF THE ASSESSEE FOR TAKING FURTHER REMEDIAL ACTION AGAINST THE SAID ORDERS I.E. TO FILE THE APPEALS BEFORE THE LD.CIT(A). 2. THAT THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT TH E FURTHER REMEDIAL ACTION AGAINST THE SAID PENALTY ORDERS OF LD. AO HAVE BEEN TAKEN BY THE OLD COUNSEL OF THE ASSESSEE I.E. THE APPEALS HAVE BEEN FILED BEFOR E LD. CIT(A) FOR ALL THE AY'S 2005-06, 2006-07, 2007-08 & 2009-10. 3. THAT WHEN THE ASSESSEE CHANGED HIS COUNSEL FOR T HE PURPOSE OF HIS ACCOUNTS AND TAXATION MATTERS, ONLY THEN THE ASSESSEE CAME T O KNOW FROM HIS NEW COUNSEL THAT THE APPEALS AGAINST THE PENALTY ORDERS OF LD. AO FOR AY 2005-06, 2006-07, 2007-08 AND 2009-10 HAVE NOT BEEN FILED BY THE OLD COUNSEL OF THE ASSESSEE BEFORE THE LD. C1T(A). 4. THAT WHEN THE FACT OF NON FILING OF APPEAL BEFO RE THE LD. CIT(A) FOR AY'S 2005- 06, 2006-07,2007-08 & 2009-10 AGAINST THE LD. AO'S PENALTY ORDERS ARE FILED. HOWEVER THE LD.CIT(A) DID NOT FIND MERIT IN THE SUB MISSIONS OF THE ASSESSEE AND DISMISSED THE APPEAL BY REJECTING THE APPLICATI ON FOR CONDONATION OF DELAY 3 IN FILING THE APPEAL. THE LD. CIT(A) DID NOT DISCUS SED THE ISSUE ON MERIT BUT OBSERVED IN PARA 4 OF THE IMPUGNED ORDER AS UNDER: THE PENALTY ORDER IN THIS CASE WAS PASSED ON 27.03 .2015 AND RECEIVED ON 30.03.2015 AND THE APPELLANT HAD TO FILE THE APPEAL WITHIN ONE MONTH OF RECEIPT OF THE ORDER . HOWEVER, THE APPEAL WAS FILED ON 12. 01.2018, THUS DELAYED BY MORE THAN 32 MONTHS. THE SUBMISSIONS OF THE APPELLANT CA NNOT BE ACCEPTED AS THE APPELLANT HAD GUIDANCE OF LEGAL PROFESSIONALS AND M ISTAKE BY COUNSEL NOT TO FILE APPEAL CANNOT BE ACCEPTED AS REASON FOR CONDONATION OF DELAY IN THE CASE OF THE APPELLANT. IT HAS BEEN HELD BY THE VARIOUS COURTS THAT CONDONA TION OF DELAY CAN BE LOOKED INTO IF THE APPELLANT HAS ACTED WITH REASONA BLE DILIGENCE IN THE PROSECUTING OF HIS APPEAL. FURTHER, IT HAS BEEN HELD BY HON'BLE SUPREME COURT IN THE CASE OF RANKAK & ORS VS REWA COALFIELDS LTD AIR 1962 SC 361 THAT I N CASES OF CONDONATION OF DELAY, PARTY HAS TO SHOW REASON FOR DELAY ON THE LA ST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EACH DAY. CONDONATION IS NOT A MATTE R OF RIGHT AND COURT HAS TO EXERCISE THE DISCRETIONARY JURISDICTION. IN VIEW OF THE FACTS OF THE CASE AND JUDICIAL PRONO UNCEMENT DISCUSSED, CONDONATION OF DELAY IN FILING OF APPEAL IS REJECTE D. 5. NOW THE ASSESSEE IS IN APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SI MILAR DELAY IN FILING THE APPEAL ON QUANTUM WAS A SUBJECT MATTER OF ADJUDICAT ION BEFORE THE ITAT CHANDIGARH BENCH B CHANDIGARH WHEREIN THE DELAY WAS CONDONED IN ITA NOS. 37 TO 39/CHD/2018 FOR THE A.YS 2005-06 TO 200 7-08 VIDE ORDER DT. 05/11/2018, COPY OF THE SAID ORDER WAS FURNISHED WH ICH IS PLACED AT PAGE NO. 11 TO 15 OF THE ASSESSEES COMPILATION. IT WAS FURTHER SUBMITTED THAT THE ADDITION MADE FOR THE AFORESAID ASSESSMENT YEARS WERE DELETE D. THE LD. COUNSEL FOR THE ASSESSEE HOWEVER ADMITTED THAT THE SAID ORDER DATED 05/11/2018 PASSED BY THE ITAT WAS NOT AVAILABLE TO THE LD. CIT(A). 7. IN HIS RIVAL SUBMISSIONS THE LD. CIT(A) SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT APPEARS THAT THE CIRCUMSTANCES FOR DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) WERE SIMILAR AS WERE BEFORE THE ITAT IN FILI NG THE APPEAL ON QUANTUM IN ITA NO. 37 TO 39/CHD/2018 FOR THE A.Y. 2005-06 TO 2007- 08 WHEREIN A SIMILAR DELAY HAS BEEN CONDONED VIDE ORDER DT. 05/11/2018. HOWEVER, T HE SAID ORDER WAS NOT AVAILABLE TO THE LD. CIT(A) AS THE IMPUGNED ORDER H AS BEEN PASSED BY THE LD. CIT(A) EARLIER THAN THE SAID ORDER DT. 05/11/2018. IT IS ALSO AN ADMITTED FACT THAT 4 THE LD. CIT(A) HAD NOT DECIDED THE ISSUE ON MERIT, WE THEREFORE BY CONSIDERING THE TOTALITY OF THE FACTS DEEM IT APPROPRIATE TO SE T ASIDE THESE CASES BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH, AFTER CONSIDERING THE AFORESAID REFERRED TO ORDER OF THE ITAT AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 9. IN THE RESULT, BOTH THE ABOVE APPEALS OF THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 01/08/2019 ). SD/- SD/- #$ % .., (SANJAY GARG ) ( N.K. SAI NI) & '(/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 01/08/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR