Smt. Jaya Nagaraja, Bangalore V. ITO, Bangalore

ITA 1264/BANG/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5578 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-01-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKAS K SURYAWANSHI
• Keywords: Reasonable cause
• Section: 271(1)(c); 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO . 1 264 /BANG/201 5 ASSESSMENT YEAR : 20 09 - 1 0 SMT. JAYA NAGARAJA, #19, SUMERU, NTI LAYOUT, RMV 2 ND STAGE, OPP: HIGH COLONY, 1 ST MAIN, BANGALORE 560 094. PAN: ACDPN4778R VS. THE INCOME TAX OFFICER, WARD 14 (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI VIKAS K. SURYAWANSHI, ADDL. CIT (DR) DATE OF HEARING : 2 9 .01.2019 DATE OF PRONOUNCEMENT : 30 . 01 .201 9 O R D E R PER SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A) DATED 24.07.2015. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. THE ORDER OF THE CIT (A) IN SO FAR AS IT IS AGAI NST THE APPELLANT IS OPPOSED TO LAW, EQUITY, AND WEIGHT OF EVIDENCE, PRO BABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES HERSELF LIABLE TO BE ASSESS ED AT RS. 40,64,650/- AGAINST THE DECLARED TOTAL INCOME OF RS.5,74,371/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT COND ONING THE DELAY FOR FILING THE APPEAL, WHICH WAS DUE TO REASONABLE CAUS E OF WRONG PROFESSIONAL ADVISE AND THEREBY ERRED IN DISMISSING THE APPEAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 1264/BANG/2015 PAGE 2 OF 5 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMI NG THE DISALLOWANCE OF CLAIM UNDER SECTION 54F OF THE ACT AMOUNTING TO RS.33,93,175/-WHEN THE APPELLANT HAS FURNISHED THE NECESSARY PROPERTY DOCUMENTS AND BUILDING PLANS DURING THE TIME OF ASSESSMENT PROCEE DINGS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION OF RS.1,13,760/-, WHEN THE APPELLANT HAD ALREADY DECLA RED INTEREST AMOUNT OF RS.16,655/- AND THE BALANCE OF RS.91,105/-( 87,1 82/+3,927/- +5,996/-) WAS INTEREST PERTAINING TO FAMILY MEMBERS CREDITED TO THE SAVINGS BANK ACCOUNT OF THE APPELLANT AND INTEREST OF THE PREVIOUS ASSESSMENT YEAR CREDITED DURING THE CURRENT YEAR, B UT OFFERED TO TAX IN THE PREVIOUS ASSESSMENT YEAR ON THE FACTS AND CIRCU MSTANCES OF THE CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CHIEF COMMISSIONER OF INCOME TAX/DIRECTOR GENERAL OF INCO ME TAX, THE APPELLANT DENIES HERSELF LIABLE TO BE CHARGED TO IN TEREST UNDER SECTIONS 234A, 234B, 234C AND 234D OF THE ACT WHICH UNDER TH E FACTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE CANCELLED. THE CALCULATION OF INTEREST UNDER SECTION 234A, 234B, 234C AND 234D IS NOT IN ACCORDANCE WITH LAW AS THE RATE, AMOUNT AND METHOD FOR CALCULA TING INTEREST IS NOT DISCERNIBLE FROM THE ORDER OF ASSESSMENT. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY , DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AND TO FILE A PAPER BOOK AT THE TIME OF HEARING THE APPEAL. 8. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE TAKEN AT THE TIME OF THE HEARING THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUITY. 3. THERE WAS A DELAY OF TWO DAYS IN FILING THI S APPEAL. IT WAS EXPLAINED BY LD. AR THAT DUE TO INADVERTENT ERROR THE APPEAL WAS FILED BELATEDLY. CONSIDERING THIS SHORT DELAY OF TWO DAYS WE ARE INCLINED TO CONDONE IT AND ADMIT IT FOR ADJUDICATION. BEFORE US THE LD. AR NOT PRESSED GROUND NO. 4 TO TH AT EFFECT LD. AR MADE AN ENDORSEMENT. 4. AT THE OUTSET, IT WAS NOTICED THAT THERE WAS A DELAY OF 183 DAYS IN FILING THE APPEAL BEFORE CIT(A). THE ASSESSEE IS RAISED GROUN D NO. 3 THAT CIT(A) WAS NOT JUSTIFIED IN CONDONING THE DELAY FOR FILING THE APP EAL, WHICH WAS DUE TO REASONABLE CAUSE OF WRONG PROFESSIONAL ADVISE AND THEREBY CIT( A) OUGHT TO HAVE ADMITTED THE APPEAL. ITA NO. 1264/BANG/2015 PAGE 3 OF 5 5. FACTS OF THIS ISSUE ARE THAT THE ASSESSING OFFICER PASSED THE ORDER U/S. 143(3) ON 29.12.2011 WHICH WAS SERVED ON THE ASSESSEE ON 0 6.01.2012. AS PER THE PROVISIONS OF IT ACT, 1961 THE ASSESSEE OUGHT TO HA VE FILED THE APPEAL BEFORE CIT(A) WITHIN 30 DAYS FROM THE DATE OF THE RECEIPT OF THE ORDER OF ASSESSMENT I.E. THE ASSESSEE MUST HAVE FILED THE APPEAL ON OR BEFOR E 05.02.2012. IT WAS PLEADED BEFORE CIT(A) THAT DUE TO WRONG PROFESSIONAL ADVISE THE ASSESSEE DID NOT CHALLENGE THE ORDER OF ASSESSMENT WITHIN THE LIMITA TION PERIOD AS PROVIDED IN THE PROVISIONS OF IT ACT, 1961. THUS THERE WAS A DELAY OF 183 DAYS IN FILING THE APPEAL BEFORE CIT(A). BEFORE CIT(A), THE ASSESSEE REQUEST ED THE CIT(A) TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICATION. T HE CIT(A) OBSERVED THAT THE REASON GIVEN FOR DELAY IN FILING THE APPEAL WERE NO T ATTRIBUTABLE TO ANY REASONS. ACCORDING TO HIM THE ASSESSEE HAS NOT EXPLAINED THE DELAY WITH PROPER EVIDENCE. HE DISMISSED THE APPEAL WITHOUT CONDONING THE DELAY . NOW BEFORE US THE LD. AR SUBMITTED THAT THIS BENCH SHALL EXERCISE THE DISCRE TION FOR THE PURPOSE OF ADVANCING SUBSTANTIAL JUSTICE AND THE ASSESSEE WAS GIVEN IMPROPER ADVISE BY PROFESSIONALS AND THERE WAS A GOOD AND SUFFICIENT R EASON TO FILE THE APPEAL BY DELAY OF 183 DAYS BEFORE CIT(A). HE PRAYED THAT LI BERAL VIEW TO BE TAKEN BY THIS TRIBUNAL AS THE DELAY WAS ONLY FOR A SHORT PERIOD O F 183 DAYS. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THA T ASSESSEE HAS NOT EXPLAINED THE DELAY WITH SUFFICIENT EVIDENCE SO AS TO CONDONE THE DELAY. ACCORDING TO LD. DR, THERE IS NO GOOD SUFFICIENT REASON TO CONDONE THE D ELAY. HE RELIED ON THE ORDER OF CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY THERE WAS A DELAY OF 183 DAYS IN FILING THE APPEAL BEFORE CIT(A). IT WAS STATED BY LD. AR BEFORE US THAT THE DELAY WAS D UE TO WRONG PROFESSIONAL ADVISE ISSUED TO THE ASSESSEE. IT WAS ALSO SUBMITT ED THAT THE ASSESSEE WAS OF THE OPINION THAT AO WOULD NOT LEVY PENALTY U/S. 271 (1)(C) OF IT ACT. THUS, THE ASSESSEE DID NOT CHALLENGE THE ORDER OF THE ASSESSM ENT PASSED BY THE AO BEFORE CIT(A). FURTHER IT WAS NOT PROPERLY GUIDED BY PROF ESSIONAL ADVISE. SINCE THE ASSESSING OFFICER INVOKED THE PENALTY PROCEEDINGS U /S. 271 (1) (C) OF IT ACT, IT WAS DECIDED BY ASSESSEE TO FILE THE APPEAL BEFORE C IT(A) CHALLENGING THE QUANTUM ADDITION. THIS SUBMISSION OF THE ASSESSEE IS NOT SUPPORTED BY ANY ITA NO. 1264/BANG/2015 PAGE 4 OF 5 EVIDENCE LIKE CORRESPONDENCE WITH THE AO REGARDING HIS PROMISE NOT TO LEVY PENALTY U/S. 271 (1) (C) OF IT ACT. ON THE OTHER H AND, IT WAS NOTICED THAT THE ASSESSING OFFICER HIMSELF MENTIONED INITIATION OF P ENALTY PROCEEDINGS IN THE ASSESSMENT ORDER DATED 29.12.2011 AS FOLLOWS: PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE INCOME T AX ACT-1961 ARE INITIATED SEPARATELY ON THE ISSUES DISCUSSED ABOVE. 8. THE ABOVE NOTING BY THE AO ITSELF SHOWS THA T THE ASSESSEE WAS WELL AWARE OF INVOKING OF PENALTY PROCEEDINGS U/S. 271(1)(C) OF T HE ACT BY AO ON COMPLETION OF THE ASSESSMENT. 9. REGARDING THE IMPROPER ADVISE BY THE PROFES SIONALS THE ASSESSEE HAS NOT PLACED ANY DETAILS OF PERSON WHO HAS ADVISED INCORR ECTLY, EVEN THE ASSESSEE NOT MENTIONED THE NAME OF THE CONSULTANT WHO HAS ADVISE D THE ASSESSEE NOT TO FILE THE APPEAL AGAINST THE ASSESSMENT ORDER. IN SUCH S ITUATION, IT IS NOT POSSIBLE TO US TO CONDONE THE DELAY OF 183 DAYS IN FILING THE A PPEAL BEFORE CIT(A). IN OUR CONSIDERED OPINION LAW ASSISTS THOSE WHO ARE VIGILA NT, NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THE DELAY OF 183 DAYS CANNOT BE COND ONED SIMPLY BECAUSE THE ASSESSEES CASE IS HARD AND CALLED FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDUL GENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT T HE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVER. THE S UFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVIS IONS. THE CAUSE FOR THE DELAY IN FILING THE APPEAL BEFORE CIT(A), WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED, CANNOT BE A SUFFICIENT CAUSE WITHIN THE ME ANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE, NOR INACTION, OR WA NT OF BONAFIDES CAN BE IMPUTED TO THE ASSESSEE A LIBERAL CONSTRUCTION OF T HE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. IN THE IN STANT CASE, THE ASSESSEE EXPLAINED THE DELAY ONLY WITH REFERENCE TO THE IMPR OPER ADVISE BY PROFESSIONALS AND PROMISE BY AO NOT TO INVOKE THE PENALTY PROVISI ONS OF THE ACT. HOWEVER, THESE SUBMISSIONS ARE NOT SUPPORTED BY ANY SUPPORTI NG EVIDENCE THAT CLEARLY SHOWED THAT THE DELAY WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. HENCE, WE ARE NOT IN A POSITION TO EXERC ISE ANY DISCRETION SO AS TO ITA NO. 1264/BANG/2015 PAGE 5 OF 5 CONDONE THE DELAY OF 183 DAYS IN FILING THE APPEAL BEFORE CIT(A). ACCORDINGLY, WE ARE INCLINED TO HOLD THAT DISMISSAL OF APPEAL BY CIT(A) ON THE REASON OF DELAY IS JUSTIFIED. SINCE WE HAVE UPHELD THE DISMISSAL O F APPEAL BY CIT(A) WITHOUT CONDONING THE DELAY WE ARE REFRAINED FROM GOING INT O OTHER GROUNDS OF APPEAL RAISED BY ASSESSEE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2019. SD/- SD/- (PAVAN KUMAR GADALE) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNT ANT MEMBER BANGALORE, DATED, THE 30 TH JANUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGAL ORE.