Onward Technologies Ltd., Mumbai V. Director of Income Tax, (CIB), Pune, Pune

ITA 149/PUN/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7496 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Keywords: Reasonable cause; Condonation of delay
• Section: 273B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO S . 1 49 TO 152 /PN/200 9 ( ASSTT. YEAR S : 200 5 - 06, 2005 - 06, 2007 - 08 & 2007 - 08 ) ONWARD T ECHNOLOGIES LIMITED , STERLING CENTRE, 2 ND FLOOR, WORLI, MUMBAI - 400 018 P AN : AAAC03742J .. APPELLANT V. DIRECTOR OF INCOME TAX (CIB) , PUNE . RESPONDENT A PPELLANT BY : SHRI PARESH SHAPARIA DEPARTMENT BY : SHRI A.S. SINGH ORDER PER I.C. SUDHIR J M THE SE APPEALS HAVE BEEN REPORTED FILED LATE BY 63 DAYS BEFORE THE TRIBUNAL. THE REASONS FOR DELAY IN PREFERRING THE PRESENT APPEALS SHOWN BY THE ASSESSEE IN ITS APPLICATION FOR CONDONATION OF DELAY IS DUE TO PRE FERENCE OF APPLICATION U/S. 154 FOR RE CTIFICATION BEFORE THE LD DIT (CIB). THE LD. A.R SUBMITTED THAT THE APPLICATION U/S. 154 WAS MOVED BEFORE THE LD DIT (CIB) ON THE BASIS THAT THERE WAS NO TRANSACTION WHICH WAS REQUIRED TO BE REPORTED U/S. 285BA. SINCE THE ASSESSEE COULD NOT SUCCEED IN TH AT APPLICATION REJECTED ON 10.12.2008, PRESENT APPEALS HAVE BEEN FILED BEFORE THE TRIBUNAL ON 2 ND FEBRUARY 2009. HE POINTED OUT THAT PENALTY IMPUGNED WAS LEVIED ON 28.8.2008, COPY OF WHICH WAS RECEIVED BY THE APPELLANT ON 1.9.2008 AND THUS, THE DUE DATE F OR FILING THE PRESENT APPEALS WAS 31 ST OCTOBER 2008. THE DELAY IN FILING THE APPEALS DUE TO AFORE - SAID REASON, THUS, MAY BE CONDONED. ITA NO 149 TO 152 /PN/200 9 ONWARD TECHNOLOGIES LTD.,. A.Y.2005 - 06, 2007 - 08 ETC., PAGE OF 4 2 2. THE LD. D.R. OPPOSED THE APPLICATION ON THE BASIS THAT REASONS SHOWN WAS NOT SUFFICIENT FOR CONDONATION OF THE DELAY. 3. CONSIDERING THE ABOVE EXPLANATION, WE ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR PREFERRING THE PRESENT APPEALS LATE BY 63 DAYS FROM THE DUE DATE OF FILING. WE THUS CONDONE D THE DELAY IN PREFERRING PRESENT APPEALS BY ALLOWING THE APPLICATION M OVED BY ASSESSEE IN THIS REGARD. WE ACCORDINGLY PROCEEDED ON HEARING OF THE APPEALS. 4. IN THESE APPEALS, THE ASSESSEE HAS QUESTIONED LEVY OF PENALTY U/S. 271FA BY THE LD DIT(CIB), PUNE FOR NON - COMPLIANCE OF PROVISIONS OF SECTION 285BA OF THE ACT. 5. ON TH E QUESTION RAISED BY THE BENCH REGARDING THE MAINTAINABILITY OF THESE APPEALS BEFORE THE TRIBUNAL UNDER THE PROVISIONS OF SECTION 253 OF THE ACT, THE LD. A.R. SUBMITTED THAT THOUGH UNDER SECTION 253 THERE IS NO SPECIFIC MENTION ABOUT PREFERENCE OF APPEAL B EFORE THE TRIBUNAL AGAINST THE LEVY OF PENALTY UNDER SECTION 271FA BY DIT (CIB) BUT UNDER SECTION 246A(1)(9) APPEAL CAN BE PREFERRED BEFORE THE COMMISSIONER (APPEALS) AGAINST AN ORDER IMPOSING PENALTY UNDER CHAPTER XXI. HE POINTED OUT THAT CHAPTER XXI OF THE ACT ALSO INCLUDES PENALTY LEVIED U/S. 271FA. THUS BY INFERENCES PRESENT APPEALS BEFORE THE TRIBUNAL ARE MAINTAINABLE. THE LD. AR REQUESTED THAT IN CASE IT IS HELD THAT PRESENT APPEALS ARE NOT MAINTAINABLE BEFORE THE TRIBUNAL, THEN LIBERTY MAY BE GIVE N TO THE APPELLANT TO MOVE APPLICATION FOR RESTORATION OF HEARING OF THE APPEAL S IF SOME CLARIFICATION OF CBDT OR THE AUTHORITY CONCERNED WITH WHOM ITA NO 149 TO 152 /PN/200 9 ONWARD TECHNOLOGIES LTD.,. A.Y.2005 - 06, 2007 - 08 ETC., PAGE OF 4 3 REPRESENTATION IN THIS REGARD IS PENDING CONSIDERATION COMES IN NEAR FUTURE. THE LD. A.R. ALSO PLACED RELI ANCE ON THE FOLLOWING DECISIONS : 1) CIT V/S. ASOKA ENGINEERING & CO. AND OTHERS (1992), 104 ITR 645 (SC) 2) GOPILAL V/S. CIT (1967) LXV, ITR PAGE 477 (PUN.) 6. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT SECTION 253 OF THE ACT DOES NOT TALK ABOUT PR EFERENCE OF APPEAL BEFORE THE TRIBUNAL AGAINST LEVY OF PENALTY U/S. 271FA OF THE ACT. 7 . UNDISPUTEDLY, APPEALS BEFORE THE TRIBUNAL CAN BE PREFERRED BY THE PARTIES U/S. 253 OF I.T. ACT 1961 AGAINST THE ORDERS OF THE AUTHORITY BELOW, SPECIFICALLY MENTIONED THEREIN. U/S. 253 OF THE ACT, UNDISPUTEDLY, THERE IS NO SPECIFIC REFERENCE OF ORDER PASSED U/S. 271FA AGAINST WHICH APPEAL CAN BE PREFERRED BY THE AGGRIEVED PARTY BEFORE THE TRIBUNAL. EVEN SECTION 273B ( WHEREIN DISCRETION HAS BEEN GIVEN TO NOT TO LEVY P ENALTY ON THE PERSON O R THE ASSESSEE FOR ANY FAILURE REFERRED TO IF, HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE ) DOES NOT INCLUDE THE PENALTY LEVIABLE U/S. 271FA OF THE ACT. UNDER THESE CIRCUMSTANCES, WE ARE HAVING NO OPTION BUT TO DISM ISS THE PRESENT APPEALS AS NOT MAINTAINABLE. WE ORDER ACCORDINGLY. LIBERTY IS, HOWEVER, GRANTED TO THE APPELLANT FOR MOVING APPLICATION FOR RESTORATION OF THESE APPEALS IN CASE IT RECEIVES CLARIFICATION FROM THE AUTHORITY CONCERNED, ABOUT THE VERY MAINTAI NABILITY OF PRESENT APPEALS BEFORE THE TRIBUNAL IN NEAR FUTURE. 8 . APPEALS ARE DISMISSED ACCORDINGLY. ITA NO 149 TO 152 /PN/200 9 ONWARD TECHNOLOGIES LTD.,. A.Y.2005 - 06, 2007 - 08 ETC., PAGE OF 4 4 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28TH FEBRUARY,2011. SD/ - SD/ - ( D.KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C . SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 28 TH FEBRUARY , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED, PUNE 4. THE DIT(CIB), PUNE 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY OR DER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE