ACIT, New Delhi V. Sh. Vimal Mehra, New Delhi

ITA 1484/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65788 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 04-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 29-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS MEETA SINH A
• Assessee Lawyers: HARSH KUMAR
• Keywords: Principle of natural justice; Reasonable cause; Right to appeal; Condonation of delay
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.1484/DEL./2012 (ASSESSMENT YEAR : 2007-08) ACIT, CIRCLE 32(1), VS. VIMAL MEHRA, NEW DELHI. N-24, NDSE, PART-I, NEW DELHI. (PAN/GIR NO.AAAPM9664N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARSH KUMAR, CA REVENUE BY : MRS. MEETA SINHA, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT EMANATES FROM THE OR DER OF THE CIT (A)-XXVI, NEW DELHI, DATED 28.06.2010, RELEVANT TO ASSESSMENT YEAR 2007-08, WHEREBY DELETION OF ADDITION OF RS.92,48,500/- MADE BY THE ASSESSING OF FICER BY DISALLOWING ASSESSEES CLAIM FOR DEDUCTION U/S 54 OF I.T. ACT, 1961 WITHOUT CONS IDERING THE FACT THAT PROPERTY WAS BEING SOLD WAS NOT RESIDENTIAL PROPERTY, AS PER SAL E AGREEMENT DATED01.02.2007, BEING AGRICULTURAL LAND, HAS BEEN CHALLENGED. THE APPEAL WAS FOUND TO BE DEFECTIVE INASMUCH AS SAME WAS FILED LATE BY 557 DAYS AND A DEFECT MEMO W AS ISSUED IN THIS CASE. IN RESPONSE THERETO, ASSESSING OFFICER HAS FILED APPLICATION FO R CONDO NATION OF DELAY AS UNDER: SUBJECT: FILING OF APPEAL IN ITAT IN THE CASE OF SHRI VIMAL MEHRA FOR THE ASSESSMENT YEAR 2007-08 CONDONATION OF DELAY RE GARDING. ***** KINDLY REFER TO THE ABOVE. 2. IN THIS CASE AUTHORIZATION TO FILE AN APPEAL U/S 253(2) OF THE I.T. ACT, 1961 WAS ISSUED BY LD.CIT, DELHI-XI, NEW DELHI ON 30.08. 2010. LIMITATION WAS EXPIRED ON 20.09.2010. HOWEVER, DUE TO OVERSIGHT AN D PRESSURE OF WORKLOAD THE SAME COULD NOT BE FILED IN TIME INADVERTENTLY RESUL TING IN DELAY OF MORE THAN 1 YEAR. THE DELAY IS HIGHLY REGRETTED AND IT IS REQ UESTED TO KINDLY CONDONE THE SAME. I.T.A. NO.1484/DEL./2012 (A.Y. : 2007-08) 2 2. LD.DR WHILE REITERATING THE SUBMISSIONS AS MADE IN THE APPLICATION FOR CONDONATION OF DELAY FILED BY THE ASSESSING OFFICER HAS PLEADED FOR CONDONING THE DELAY BECAUSE THERE WAS NO INTENTIONAL OR DELIBERATE DELA Y ON THE PART OF THE ASSESSING OFFICER IN FILING THE APPEAL, THOUGH THE DELAY WAS FOR 557 DAYS, BUT REASONABLE CAUSE SUPPORTED BY AFFIDAVIT FOR CONDONING THE DELAY, SO IT WAS PLEADE D FOR ADMITTING THE APPEAL TO BE DECIDED ON MERITS. RELIANCE WAS ALSO PLACED IN THE CASE OF THE FOLLOWING DECISIONS: 1. ACIT VS. RANBIR CHEMICALS INDUSTRIES (P) LTD., 1 14 ITD 121 2. CIT VS. SHANKARLAL VED PRAKASH (HUF), 138 TAXMAN 125 3. CIT VS. INDIAN HOTELS CO. LTD. (SC), SLP(CIVIL)N O.2108/2010 DATED 9.5.2011. 4. UOI VS. TATA YODOGAWA LTD., 38 ELT 739 (1988). 5. COPY OF CIRCULAR NO.DIT(L&R)-I/DELAY IN SLP/2012 -13 DATED 19.9.2012 ISSUED BY THE OFFICE OF DIRECTOR GENERAL OF INCOME TAX (LEGAL & RESEARCH), NEW DELHI. 6. G. RAMEGOWDA, MAJOR, ETC. VS. SPECIAL LAND ACQUI SITION (SC) 1988) AIR 897, 1988 SCR (3) 198. 7. STATE OF HARYANA VS. CHANDER MANI & ORS. (SC) 19 96 AIR 1623, 1996 SCC(3) 132; AND 8. COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS .(SC), 1987 AIR 1352, 1987 SCR (2) 387. 3. SO FAR AS MERITS OF THE CASE ARE CONCERNED, LD.D R. SUBMITTED THAT SINCE DEPARTMENT HAS A VERY SOLID CASE, THEREFORE, APPEAL BE ADMITTED, CONSIDERED AND DELETION OF ADDITION MADE BY THE CIT(A) BE RESTORED. 4. LD.COUNSEL FOR THE ASSESSEE WHILE OPPOSING THE M OVE OF THE REVENUE HAS PLEADED FOR REJECTING THE PLEA OF THE DEPARTMENT FOR CONDO NATION OF DELAY AS NEITHER ANY REASONABLE CAUSE HAS BEEN SHOWN NOR ANY DOCUMENTARY EVIDENCE HAS BEEN PRODUCED TO PROVE THAT THE DELAY CAUSED IN FILING OF THE APPEAL WHICH WAS LATE OF 557 DAYS, WAS DUE TO A BONA FIDE REASON OR THERE WERE SUFFICIENT REASONS FOR THE SAME. GENERAL TYPE OF PLEA HAS BEEN RAISED THAT DUE TO OVERSIGHT AND PRESSURE OF W ORKLOAD, THE DELAY HAS BEEN CAUSED WHEN IN VARIOUS DECISIONS, IT HAS BEEN CATEGORICALL Y HELD THAT EACH DAYS DELAY IS TO BE EXPLAINED AND HERE IS A QUESTION OF CONDONATION OF DELAY OF 557, DAYS WHICH IS IN ORDINATE DELAY AND RELIANCE WAS PLACED ON THE FOLLOWING DECI SIONS: I.T.A. NO.1484/DEL./2012 (A.Y. : 2007-08) 3 1.ACIT VS. RANBIR CHEMICALS INDUSTRIES (P) LTD., 1 14 ITD 121; AND 2. CIT VS. SHANKARLAL VED PRAKASH (HUF), 138 TAXMA N 125. 5. SO FAR AS CASE ON MERITS IS CONCERNED, CIT(A) HA S PASSED A VERY REASONED AND ELABORATE ORDER CONSIDERING THE EACH AND EVERY ASPE CT OF THE MATTER WHICH HAS NOT BEEN REBUTTED OR REFUTED BY LD.DR., AS SUCH ORDER OF CIT (A) NEEDS FURTHER CONFIRMATION. THEREFORE, APPEAL OF THE REVENUE ON MERITS NEEDS T O BE DISMISSED WHICH MAY BE DISMISSED. 6. AFTER CONSIDERING FACTS, MATERIAL ON RECORD AN D VARIOUS CASE LAW AS CITED BY RIVAL SIDES, WE FIND IT TO BE SETTLED POSITION OF LAW THA T RIGHT OF APPEAL IS NEITHER AN ABSOLUTE NOR AN INGREDIENT OF NATURAL JUSTICE, THE PRINCIPLE OF WHICH MUST BE FOLLOWED IN JUDICIAL AND QUASI-JUDICIAL ADJUDICATION. THE RIGHT TO APPEAL IS A STATUTORY RIGHT AND IT CAN BE CIRCUMSCRIBED BY THE CONDITION IN THE GRANT. IF A S TATUTE GIVES RIGHT TO APPEAL UPON CERTAIN CONDITIONS IT IS UPON FULFILMENT OF THOSE CONDITION S THAT THE RIGHT BECOMES VESTED IN AND EXERCISABLE BY THE APPELLANT. AS PER S. 253(3), APP EAL IS REQUIRED TO BE FILED BY THE ASSESSEE OR THE DEPARTMENT WITHIN SIXTY DAYS FROM T HE DATE OF COMMUNICATION OF THE ORDER TO BE APPEALED AGAINST ON THE ASSESSEE OR THE CIT, AS THE CASE MAY BE AND UNDER S. 253(5), TRIBUNAL MAY ADMIT AN APPEAL AFTER EXPIRY OF RELEVA NT PERIOD REFERRED TO IN S. 253(3) IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NO T PRESENTING THE APPEAL WITHIN THAT PERIOD. NO DOUBT, IT IS SPECIFICALLY PROVIDED THAT APPEAL C AN BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE ASSESSEE SATISFIES THE TRIBUNAL THAT HE/SHE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL WITHIN PERIOD AS PRESCRIBED I N THIS BEHALF. WHERE THE TIME FOR REFERRING AN APPEAL HAS EXPIRED, A VALUABLE RIGHT I S SECURED TO THE RESPONDENT OR THE OPPOSITE PARTY AND SUCH RIGHT OUGHT NOT TO BE LIGHT LY DISTURBED [AS HELD BY HONBLE SUPREME COURT IN THE CASE OF RAMLAL VS. REWA COALFI ELDS LTD. AIR 1962 SC 361, 363]. THE APPEAL PREFERRED OR. MADE AFTER THE EXPIRY OF T HE PRESCRIBED PERIOD CAN BE ADMITTED ONLY IF THE ASSESSEE SATISFIED THE TRIBUNAL THAT TH ERE WAS SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL WITHIN SUCH PERIOD. THE TRIBUNAL HAS POW ER TO CONDONE THE DELAY ONLY WHEN SUFFICIENT CAUSE IS SHOWN WITH A VIEW TO ADVANCE SU BSTANTIAL JUSTICE AND EVEN AFTER SUFFICIENT CAUSE HAS BEEN SHOWN THE PARTY IS NOT EN TITLED TO CONDONATION OF DELAY, AS A I.T.A. NO.1484/DEL./2012 (A.Y. : 2007-08) 4 MATTER OF RIGHT. IF SUFFICIENT CAUSE IS SHOWN THEN TRIBUNAL HAS TO ENQUIRE, WHETHER IN ITS DISCRETION, IT SHOULD CONDONE THE DELAY, CONSIDERA TION OF BONA FIDES OR DUE DILIGENCE IS ALWAYS MATERIAL. SINCE ALL OTHER CIRCUMSTANCES ARE ALSO TO BE TAKEN INTO ACCOUNT BEFORE APPLYING THE PROVISIONS OF LAW IN THIS REGARD AND I N THIS CASE THE DEPARTMENT DID NOT FILE THE APPEALS WITHIN DUE TIME IN THIS CASE AND CAUSE SHOWN BY IT DOES NOT CONCLUSIVELY SHOW THAT SAME IS REASONABLE OR SUFFICIENT. NO DOUB T, AT MORE THAN ONE OCCASION HONBLE SUPREME COURT HAS SPECIFICALLY HELD THAT STATE CANN OT BE PUT ON THE SAME FOOTING AS AN INDIVIDUAL BECAUSE INDIVIDUAL WOULD BE QUICK IN TAK ING THE DECISION WHEREAS GOVERNMENT MACHINERY, THERE IS IMPERSONAL MECHANISM THROUGH IT S OFFICERS OR SERVANTS BUT POSITION HERE IS NOT THE SAME AS IT WAS A CASE OF NO ACTION ON THE PART OF THE ASSESSING OFFICER INASMUCH AS EVEN AFTER OBTAINING AUTHORIZATION FROM CONCERNED CIT ON 30.08.2010, THE APPEAL WAS FILED ON 29.03.2012 AND NO MATERIAL OR E VIDENCE TO JUSTIFY SUCH INORDINATE DELAY OF 557 DAYS HAS BEEN ADDUCED EXCEPT TAKING GE NERAL TYPE OF PLEA OF OVERSIGHT AND PRESSURE OF OVERWORK, DEPARTMENT HAS SOUGHT CONDON ATION OF DELAY, WHICH, IN OUR CONSIDERED VIEW, CANNOT BE HELD TO BE A SUFFICIENT OR REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN STIPULATED TIME IN THE LIGHT OF FACTS AND CIRCUMSTANCES EXPLAINED AND DISCUSSED ABOVE. 7. AS SUCH, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES, PLEAS RAISED AND DISCUSSION HELD IN THE LIGHT OF DECIDED CASES, AS R ELIED UPON, WE DECLINE TO CONDONE THE DELAY CAUSED IN FILING OF THE APPEAL AND DISMISS T HE SAME IN LIMINE. 8. AS A RESULT, THE APPEAL FILED BY THE REVENUE GE TS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 26.10.2012. SD/- SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : OCT. 26,2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXVI, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT