E.R. Textiles Limited, Kolkata V. CIT(A)-4, Kolkata, Kolkata

ITA 1427/KOL/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7201 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 04-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI; SALLONG YAD
• Assessee Lawyers: A K TIBREWAL
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 1427/KOL/2016 ASSESSMENT YEAR 2007-08 M/S. E.R. TEXTILES LTD.................................APPELLANT 1-433, GARIAHAT ROAD, B1-4A, 4 TH FLOOR, JODHPUR PARK, KOLKATA 700 068. [PAN: AABCE 6569 N] DCIT, CIRCLE 10 KOLKATA.........................................RESPONDENT KOLKATA. APPEARANCES BY: SHRI A.K. TIBREWAL, FCA & SHRI AMIT AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI P.K. SRIHARI, CIT, DR & SHRI SALLONG YADEN, ADDL. CIT SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 01, 2018 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 28, 2018 ORDER SHRI P.M. JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A) 4, KOLKATA DATED 04.04.2016 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE BY TREATING THE SAME AS BARRED BY LIMITATION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING IN FABRICS AND TEXTILE DERIVATIVES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 22.10.2007 DECLARING A TOTAL INCOME AT NIL. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3) ON 22.12.2009, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT A LOSS RS. 9,30,06,969/-. THE SAID ASSESSMENT WAS SUBSEQUENTLY REOPENED BY THE AO AND IN THE REASSESSMENT MADE U/S 147/143(3) VIDE AN ORDER 2 I.T.A. NO. 1427/KOL/2016 E.R. TEXTILES LTD. DATED 28.03.2013, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT A LOSS OF RS. 6,64,75,330/- AFTER MAKING A DISALLOWANCE OF RS. 2,65,31,639/- U/S 32(1)(IIA). 3. AGAINST THE ORDER PASSED BY THE AO U/S 147/143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). THERE WAS HOWEVER A DELAY OF 134 DAYS ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL BEFORE THE LD. CIT(A). IN THIS REGARD, AN APPLICATION WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT ITS GENERAL MANAGER WAS TRANSFERRED TO PROJECT AT HOSUR AND THE ASSESSMENT ORDER WAS NOT RECEIVED BY HIM IN GOOD TIMES FOR TAKING FURTHER NECESSARY ACTION. IT WAS ALSO SUBMITTED BY THE ASSESSEE IN THE SAID APPLICATION THAT THE DELAY WAS NOT INTENTIONAL AND SINCE THERE WAS NO TAX DEMAND IN THE MATTER, IT WAS INCOMPREHENSIBLE TO THE OTHER OFFICIALS OF THE COMPANY. IT WAS SUBMITTED THAT THE GENERAL MANAGER CAME TO KNOW ABOUT THE MATTER ONLY AFTER RECEIPT OF PENALTY NOTICE U/S 271(1)(C) AND TOOK THE NECESSARY STEP IMMEDIATELY BY FILING THE APPEAL BEFORE THE LD. CIT(A). THESE REASONS GIVEN BY THE ASSESSEE FOR THE DELAY OF 134 DAYS IN FILING THE APPEAL WERE NOT FOUND SUFFICIENT BY THE LD. CIT(A) AND REJECTING THE APPLICATION OF THE ASSESSEE FOR THE CONDONATION OF THE SAID DELAY, HE DISMISSED THE APPEAL OF THE ASSESSEE BY TREATING THE SAME AS BARRED BY LIMITATION. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), ASSESSEE HAS PREFERRED THIS APPEAL BEFORE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY CONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE TERM 3 I.T.A. NO. 1427/KOL/2016 E.R. TEXTILES LTD. SUFFICIENT CAUSE IS TO BE CONSTRUED LIBERALLY WHILE DECIDING THE ISSUE RELATING TO CONDONATION OF THE DELAY IN FILING THE APPEAL SO AS TO ADVANCE THE SUBSTANTIAL CAUSE OF JUSTICE. IN OUR OPINION, THE LD. CIT(A) HAS NOT FOLLOWED THIS WELL SETTLED PRINCIPLE REITERATED BY THE VARIOUS COURTS INCLUDING THE HONBLE SUPREME COURT WHILE REJECTING THE APPLICATION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY OF 134 DAYS IN FILING THE APPEAL BY THE ASSESSEE. IN OUR OPINION, THE REASONS GIVEN BY THE ASSESSEE FOR THE SAID DELAY CONSTITUTED THE SUFFICIENT CAUSE AND THE LD. CIT(A) OUGHT TO HAVE CONDONED THE SAID DELAY TO ADVANCE THE SUBSTANTIAL INTEREST OF JUSTICE. WE, THEREFORE, CONDONE THE SAID DELAY AND REMIT THE MATTER BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE ON MERIT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) (JUDICIAL MEMBER) ACCOUNTANT MEMBER DATED: 28/09/2018 BISWAJIT, SR. P.S. COPY OF ORDER FORWARDED TO: 1. M/S. E.R. TEXTILES LTD., 1-433, GARIAHAT RD., B1-4A (4 TH FL), JODHPUR PARK, KOLKATA 700 068. 2. DCIT, CIR 10, KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA