Ani Kumar, Vapi V. Pr.CIT, Valsad, Valsad

ITA 134/SRT/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2497 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-01-2022
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause; Condonation of delay; Borrowed satisfaction
• Section: 263; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No.134/SRT/2019 (AY 2007-08) (Hearing in Virtual Court) Anil Kumar, Flat No.E-1/202, Pramukh Greens Chala, Vapi. PAN: AISPK 8892 Q Vs The Principal Commissioner of Income Tax, Valsad. Appellant/ Revenue Respondent/ Assessee Assessee by Shri A.Gopalakrishnan – CA Revenue by Shri H.P.Meena – CIT(DR) Date of hearing 04/01/2022 Date of pronouncement 31/01/2022 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the Assessee is directed against order of ld.Principal Commissioner of Income Tax, Valsad passed under section 263 of the Act for the Assessment Year 2007-08. The assessee has raised following grounds of appeal: “1. The order of the Learned Principal Co0mmissioner of Income Tax, Valsad to set aside the assessment order passed u/s 143(3) rws 147 and directions given for fresh assessment is contrary to the facts and law and prejudicial to the assessee. 2. On appreciation of the facts and circumstances of the case, the Learned Principal Commissioner of Income Tax, Valsad has erred in recording wrong findings and passing order on the basis of such wrong finding. The action of the Learned Principal Commissioner of Income Tax Valsad is contrary to law and based on erroneous understanding of the facts and deserves to be deleted. 3. On appreciation of the facts and circumstances of the case and law, the Learned Principal Commissioner of Income Tax, Valsad has issued directions to the Learned Assessing Officer without considering the details and explanations of the Appellant, and the nature of his business during the year, furnished during the course of assessment proceedings. The action of the Learned Principal ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 2 Commissioner of Income Tax is contrary to the facts of the case and law and deserves to be deleted. 4. On appreciation of the facts and circumstances of the case and law, the Learned Principal Commissioner of Income Tax, Valsad has erred in recording the findings and setting aside the order U/s.263 and issuing directions to the Assessing Officer to pass the order in a certain specified manner. 5. The Appellant craves to add, amend, modify or alter the above grounds of appeal at any stage of appellate proceedings. 6. The Appellant humbly prays that the appeal be allowed in toto.” 2. Further vide application dated 20.12.2021, the assessee has raised following additional grounds of appeal: “1. On appreciation of the facts and circumstances of the case and law, the Learned Principal Commissioner of Income Tax has erred in issuing notice U/s.263 of the Act based upon the borrowed satisfaction of the subordinate officers. 2. On appreciation of the facts and circumstances of the case and law, the learned Principal Commissioner of Income Tax has erred in invoking revisional jurisdiction U/s.263 of the Income Tax Act, 1961 by issuing notice U/s.263 of the Act dated 10.03.2017. 3. On appreciation of the facts and circumstances of the case and interpretation of law the learned Principal Commissioner of Income Tax has erred in holding that the order of the Learned Assessing Officer U/s.143(3) r.w.s 147 of the Act dated 28.01.2015 is erroneous and prejudicial to the interest of revenue.” 3. Perusal of record reveals that ld. Principal Commissioner of Income Tax (ld. PCIT) passed the impugned order on 24.03.2017, however, the present appeal was filed on 06.03.2019. The assessee claimed that the impugned order was received by him only on 19.12.2017, thus, there is delay of 383 days in filing appeal before Tribunal. The assessee has filed application for condonation of delay which is supported by affidavit of assessee. In the short affidavit it is ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 3 contended that whatever stated in the application for condonation of delay is true to the best of his knowledge and belief. 4. In the application for condonation of delay, the assessee has contended that assessment order for the A.Y. 2007-08 under section 143(3) r.w.s 147 of the Act was passed on 28.01.2015. The assessment order dated 28.01.2015 was set-aside by ld. PCIT by exercising his power under section 263 of the Act vide order dated 25.03.2017 with the direction to reframe the assessment order. The order passed under section 263 was not received by assessee, therefore, he filed application on 17.12.2017 for certified copy. The copy of order under section 263 of the Act was received on 19.12.2017, therefore, there has been delay of 383 days in filing appeal from the date of receipt of order on 19.12.2017. The assessee further stated that he is doing the business of readymade garments which requires extensive travelling and pressure of work. The readymade garments are purchased from different cities i.e. Kolkata, Tirupur, Delhi, Ludhiana and Ahmedabad, which are sold by assessee in his shop at Vapi. For purchasing readymade garments, he had to frequently travel to aforesaid different cities. He has extreme pressure to sell this stock on return after making purchases. It is further contended that the assessee was hospitalised from 08.03.2018 to 15.03.2018 due to infective ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 4 jaundice and was on bed rest up to 15.04.2018. The assessee also annexed a copy of medical certificate issued by Kailash Hospital, District Tapi, Gujarat. 5. The ld. Authorised Representative (ld.AR) of the assessee made his submission on similar lines and read over the said application. The ld.AR further submits that delay in filing may be condoned in the interest of justice and the appeal may be admitted for adjudication. To support his submission the ld AR for the assessee relied on the decision of Hon’ble Gujarat High Court in Jayant Sing Vaghela Vs ITO 40 [2013] taxmann.com 491 (Guj) and would submits that there is no negligence or melafide intention of the assessee in filing the appeal belatedly. The ld AR for the assessee finally submits that a liberal view may be adopted while considering the application for condonation of delay. 6. At the time of hearing the submission of ld AR for the assessee, we raised a specific query to the ld.AR for the assesse if any appeal was filed before the ld.CIT(A) against the addition made in the assessment order, assessment order passed in pursuance of direction of ld.CIT(A). The ld.AR for the assessee submits that in pursuance of direction of ld. PCIT, the assessment order was passed on 27.10.2017 and that the assessee filed appeal before the ld.CIT(A) on 16.12.2017 and that the said appeal is still pending for adjudication. ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 5 7. On the other hand, the ld. Commissioner of Income Tax (Departmental Representative) [ld.CIT(DR)] for the Revenue strongly opposed the contents of application. The ld.CIT(DR) submits that the condonation of delay application is based on concocted facts and does not disclose true facts. The assessee has not filed appeal in time, though the assessee contested the proceedings initiated by the Assessing Officer(AO) in pursuance of direction of ld. PCIT vide his order dated 24.03.2017. Against the addition made by the AO in the order passed under section 143(3) r.w.s 263 of the Act, the assessee filed appeal before the ld.CIT(A) with in the time limit prescribed under the statue. The assessee has not filed appeal before the Tribunal in time though he has filed appeal before the ld.CIT(A) contesting the addition. The ld.CIT-DR for the Revenue further submits that the assessee failed to disclose the reasonable cause for condonation of delay. The medical certificate filed by assessee is not genuine, the same is allegedly issued by Homeopathic Hospital in Tapi which is 100 km’s away from resident of assessee. No details of diagnosis or the receipt of medical issue/expenses is filed on record. The application is not based on true facts and the same deserves dismissal. 8. We have considered the rival submission of both the parties and have gone through the contents of application for condonation of delay dated 01.03.2019 and the affidavit filed in support thereof. We have also deliberated on the case ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 6 law relied by ld AR for the assessee. We have also considered the certain date and events as enquired during the hearing of this application. This is an admitted fact that in pursuance of direction of ld. PCIT in his order dated 24.03.2017, the AO made certain addition on account of cash deposit in bank account, against the addition in the assessment order passed under section 143(3) read with section 263. Aggrieved by the additions, the assessee filed appeal before the ld. CIT(A) on 16.12.2017. The said appeal stated bo be still pending adjudication before learned appellate Commissioner. We find that assessee has availed the legal remedy for filing appeal before the Appellate Commissioner well with in the period of limitation. It is not the case of assessee that he was not aware about the technicalities to challenge the order of ld. PCIT before the Tribunal or he was advised not to challenge the order of ld PCIT before Tribunal. 9. The assessee in his application stated that he was travelling from one city to another for purchasing of readymade garments and it was difficult for him to file appeal. In our considered view, the contents of application is far from truth and is based on self-made story. If the assessee can exercise is right to file his appeal before the ld.CIT(A), in our view he was not prevented to exercise his option to file appeal before the Tribunal in challenging the order of ld PCIT. Therefore, the contents of application for condonation of delay is ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 7 far from truth. There is gross negligence in filing appeal before this Tribunal. The ld AR for the assessee while making his submission vehemently submitted that liberal view may be adopted while considering the application for condonation of delay. The submissions of the ld AR for the assessee may be adopted only in those cases, where the assessee has come with clean hand and shown sufficient, bonafide and reasonable cause. However, in this case the assessee has tried to mislead the bench in pleading the contents that he was so busy in his business that he could not file appeal in time. In our view the assessee has failed to show a reasonable cause for seeking condonation of delay. The case law relied by the ls AR for the assessee is also not helpful to the assessee. The Hon’ble High Court in Jayvantsing N Vagheal Vs ITO (supra) held that unless there is gross negligence or mala fide intention, delay in filing appeal to be condoned. We find that the assessee is not only negligent in filing appeal, rather pleaded such facts in his application for condonation of delay which are far from the truth and in our humble opinion the ratio of the case law is not applicable on the facts of the present case. Accordingly, the application for condonation of delay is dismissed. As we have dismissed the application on the basis of its contents and the information disclosed by ld AR for the assessee, therefore, the discussion on the submissions of the ld ITA No.134/SRT/2019 (AY 2007-08) Anil Kumar, Vapi 8 CIT-DR has become academic. Resultantly, the appeal of the assessee is not admitted for hearing and the same is dismissed. 10. In the result, appeal of the assessee is dismissed. Order announced on 31 January, 2022in open court at the time of hearing in virtual court. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 31/01/2022 /SGR* Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order / / TRUE COPY / / Sr.Pvt. Secretary, ITAT, Surat