M/s. Benzo Petrochemicals Ltd. ( in Liqn.), Ahmedabad V. The Income Tax Officer, Ward-4(1), Ahmedabad

ITA 1494/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94738 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Keywords: Reasonable cause; Condonation of delay
• Section: 144

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.1494/AHD/2015 /BLOCK ASSTT. YEAR: 2008-2009 M/S.BENZO PETROCHEMICALS LTD. (IN LIQN.) C/O. OFFICIAL LIQUIDATOR JIVABHAI CHAMBERS ASHRAM ROAD AHMEDABAD 380 009. PAN : AADCB 6795 M VS ITO, WARD - 4(1) AHMEDABAD. ./ ITA NO.1495/AHD/2015 /BLOCK ASSTT. YEAR: 2008-2009 GEMS EYEDRONS LTD.(IN LIQN.) C/O. OFFICIAL LIQUIDATOR JIVABHAI CHAMBERS ASHRAM ROAD AHMEDABAD 380 009. PAN : AABCG 4913 E VS ITO, WARD - 4(1) AHMEDABAD. %& / (APPELLANT) '( %& / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI VILAS V. SHINDE, DR / DATE OF HEARING : 03/12/2015 / DATE OF PRONOUNCEMENT: 04/12/2015 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ITA NO.1494 & 1495/AHD/2015 2 THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF THE ASSESSEES AGAINST THE SEPARATE ORDERS OF EVEN DATED 28.11.2013 PASSED BY THE LD.CIT(A)-VIII, AHMEDABAD ON RESPECTIVE APPE ALS OF THE ASSESSEE IN THE ASSTT.YEAR 2008-09. 2. THE REGISTRY HAS POINTED OUT THAT APPEALS FILED BY THE ASSESSEES ARE TIME BARRED BY 484 DAYS. AN OBJECTION TO THIS EFFECT WAS INTIMATED TO THE APPELLANTS. IN RESPONSE TO THE OBJECTION, B OTH THE APPELLANTS HAVE FILED APPLICATION FOR CONDONATION OF DELAY, BU T WITHOUT ANY AFFIDAVIT. 3. THESE APPEALS WERE LISTED ON BOARD ON 10.9.2015. IN RESPONSE TO THE NOTICE OF HEARING NO ONE APPEARED BEFORE THE TR IBUNAL. THE HEARING WAS ADJOURNED AND FRESH NOTICES WERE ISSUED TO THE APPELLANTS. THE NOTICES WERE ISSUED ON 22.10.2015. BUT ON THIS DAT E A PUBLIC HOLIDAY WAS DECLARED, AND THE HEARING WAS ADJOURNED TO 4.11 .2015 AND FRESH NOTICES WERE ISSUED. NOTICES WERE SENT ON THE ADDR ESSES GIVEN IN THE FORM NO.36 AND THESE WERE DULY SERVED UPON THE ASSE SSEES. THE BENCH DID NOT FUNCTION ON 4.11.2015. THE NEXT DATE OF HEARING WAS DULY DISPLAYED ON THE NOTICE BOARD AS WELL AS IN TH E CAUSE LIST PUBLISHED BY THE ITAT. HOWEVER, NO ONE HAS COME PRESENT ON B EHALF OF THE ASSESSEE. THEREFORE, WITH THE ASSISTANCE OF THE LD .DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY AND PROCEEDED TO DECID E THE APPEAL EX PARTE . 4. THE APPLICATIONS FOR CONDONATION OF DELAY FILED IN BOTH THE APPEALS ARE VERBATIM SAME EXCEPT MENTION OF THE TRIBUNAL FE ES PAID BY EACH APPELLANT. IN OTHER WORDS, THE APPLICATIONS FOR CO NDONATION OF DELAY ARE CYCLOSTYLED COPY OF EACH OTHER. FOR THE FACILITY O F REFERENCE, WE TAKE THE APPLICATION IN THE CASE OF M/S.BENZO PETROCHEMICALS LTD. IT READ AS UNDER: ITA NO.1494 & 1495/AHD/2015 3 SUB: CONDONATION OF DELAY FOR FILING OF APPEAL - A .Y. 2008-09 KINDLY REFER TO THE CAPTIONED SUBJECT AND WE BEG TO SUBMIT THAT THE COMMISSIONER OF INCOME TAX (APPEALS) -VIII, AHM EDABAD HAS PASSED AN APPEAL ORDER IN THE ORDER OF AN ASSESSING OFFICER U/S. 144 R.W.S. 147 OF THE ACT DATED 28.11.2013 AND THE SAID ORDER WAS SERVED ON THE APPELLANT ON 11.12.2013. THE PRESENT APPEAL, IN ACCORDANCE WITH LAW, WAS TO BE FILED ON OR BEFORE THE DATE I.E. WITHIN 60 DAYS FROM THE DATE O F RECEIPT OF ORDER HOWEVER AN APPELLANT IS COMPANY (IN LIQN.) WH ICH IS CARED BY OFFICE OF THE OFFICIAL LIQUIDATORS, HIGH COURT O F GUJARAT AS PRINCIPAL OFFICER OF THE SAID COMPANY (IN LIQN.). M EANWHILE THE OFFICIAL LIQUIDATOR HAD BEEN TRANSFERRED AND ANOTHE R OFFICIAL LIQUIDATOR WAS APPOINTED AND TAKEN UP THE CHARGE TO MANAGE THE AFFAIRS OF THE COMPANIES (IN LIQN.). THE NEWLY APPO INTED OFFICIAL LIQUIDATOR WAS REQUIRING SUFFICIENT TIME TO TAKE OV ER THE CHARGE ETC. AND PRIORITY WAS GIVEN TO DAY TO DAY INSTRUCTI ONS/ORDERS OF THE HON'BLE HIGH COURT AND THEREFORE COULD NOT SPARE TI ME TO TAKE DECISION OF MAKING APPEAL AND NO OTHER STAFF MEMBER WAS AUTHORIZED TO TAKE DECISION ON BEHALF OF HIM HENCE APPEAL CANNOT BE MADE IN TIME. CONSIDERING THE MERITS OF THE CASE AS ALSO THE GENU INE AND BONAFIDE REASON UNDER WHICH THE APPELLANT WAS UNABL E TO FILE ITS APPEAL IN TIME, A HUMBLE REQUEST IS MADE TO ADMIT T HE PRESENT APPEAL CONDONING THE DELAY PARTICULARLY TAKING INTO ACCOUNT THE FACT THAT FOR WANT OF ADJUDICATION, A PROPER CASE O N MERIT SHALL BE DEPRIVED THE BENEFIT OF CONSIDERATION BY APPELLATE AUTHORITY FOR THE REASONS RESULTING INTO THE DELAY IN FILING THE APPEAL. YOUR APPELLANT WHILE MAKING THE ABOVE PRAYER SEEKS TO PLACE RELIANCE ON VARIOUS DECISIONS LISTED BELOW TO TAKE A VIEW THAT CONDONATION OF DELAY IN FILING OF APPEALS MAY BE LI BERALLY APPROACHED BY THE APPELLATE AUTHORITIES: 1. IN THE CASE OF COLLECTOR, LAND ACQUISTII ON V. MST. KATIJI -167 ITR 471 (SC) THE HON'BLE SUPREME COURT HELD AS FOLLOWS: 'THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING A MATTERS ON 'MERITS'. THE EXPRESSION 'SUFFICIENT CAU SE' EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER, WHICH SUBSERVES THE ENDS OF JUSTICE - THAT BEING THE LIFE-PURPOSE OF THE EXISTE NCE OF THE ITA NO.1494 & 1495/AHD/2015 4 INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTE RS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. 2. 278 ITR 291 (ALL)AUTO CENTRE VS. STATE O F UTTAR PRADESH AND OTHERS 'IN MATTERS OF CONDONATION OF DELAY A PRAGMATIC VIE W SHOULD BE TAKEN AND THERE SHOULD BE A LIBERAL APPROACH. THE L AW OF LIMITATION IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UT S IT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS O F THE PARTIES, RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. HELD, THAT, IN THE INSTANT CASE, THE ASSESSEE-FIRM HAD ONLY TWO PARTNERS ONE OF WHOM WAS OLD. THE OTHER PARTNER EXP LAINED THAT HE HAD BEEN ILL. THE ILLNESS WAS NOT DOUBTED. THE D ELAY IN FILING THE APPEAL HAS TO BE CONDONED. 3. IN THE CASE OF N. BALAKRISHNAN VS. M. KRI SHNAMURTHY - 7 SCC 123 THE APEX COURT EXPLAINED THE SCOPE OF L IMITATION AND CONDONATION OF DELAY OBSERVING AS UNDER: 'THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. THE TIME LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOUL D TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITATION ARE NOT MEAN T TO DESTROY THE RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT P ARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY F OR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY.' 4. IN VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL REPORTED IN 253 ITR 798 (SC ; 125 STC 375 (SC; 44 ALR 577 (SC) THE APEX COURT MADE A DISTINCTION IN DELAY AND INORDINATE DELAY OBSERVING AS UNDER: 'IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LI MITATION ACT, THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINC TION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FO RMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROA CH...' ITA NO.1494 & 1495/AHD/2015 5 5. IN NEW INDIA INSURANCE CO. LTD. VS. SMT. SHANTI MISRA - AIR 1976 SC 237. THE HON'BLE SUPREME COURT HELD THAT DISCRETION GIVEN BY SECTION 5 SHOULD NOT BE DEFINED OR CRYSTALLIZED SO AS TO CONVERT A DISCRETIONARY MATTER INTO A RIGI D RULE OF LAW. THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE A LIBE RAL CONSTRUCTION. YOUR HONOUR IS, THUS, REQUESTED TO ADMIT THE PRESEN T APPEAL BY CONDONING THE DELAY HI FILING OF THE SAME. THE FOLL OWING DOCUMENTS ARE ENCLOSED, IN TRIPLICATE: A) MEMORANDUM OF APPEAL IN FORM NO. 36 ALONG WITH STATEMENT OF FACTS AND GROUNDS OF APPEAL B) COPY OF THE ORDER PASSED BY CIT (APPEAL) - VIII IN AN ORDER PASSES BY THE ASSESSING OFFICER U/S.144 R.W.S 147 O F THE I.T. ACT, 1961 C) COPY OF THE ORDER PASSED BY THE ASSESSING OFFIC ER U/S.144 R.W.S 147 OF THE I.T. ACT, 1961. D) COPY OF CHALLAN OF RS. 4,698/-, BEING ITAT APPEA L FEE. E) LETTER OF AUTHORITY SINCE THE DELAY HAS ARISEN ON ACCOUNT OF INADVERTEN T AND UNINTENDED REASONS THE APPELLANT'S APPEAL MAY KINDL Y BE ALLOWED TO BE ADMITTED AND PROCEEDED WITH FOR WHICH YOUR AP PELLANT SHALL BE EVER OBLIGED. AS NOTED BY THE APPELLANTS IN THEIR APPLICATION FOR CONDONATION OF DELAY, THE LIMITATION FOR FILING THE APPEAL BEFORE THE TRI BUNAL PROVIDED IN SUB- SECTION (3) OF SECTION 253 IS OF 60 DAYS, FROM THE DATE OF RECEIPT OF THE IMPUGNED ORDER. SUB-SECTION (5) OF SECTION 253 FUR THER EMPOWERS THE TRIBUNAL TO CONDONE THE DELAY IN NON-FILING THE APP EAL IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTIN G THE APPEAL WITHIN THE TIME. IN ORDER TO EXPLAIN SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME, THE APPELLANTS HAVE FILED APPLICATION FOR CON DONATION OF DELAY AS EXTRACTED ABOVE. A PERUSAL OF THE APPLICATION, IT NO WHERE REVEALS WHAT WAS THE REASON WHICH OPERATED UPON THE ASSESSEES OR THE OFFICIAL LIQUIDATOR NOT TO FILE APPEAL IN TIME. THE LD. OL HAS OBSERVED THAT SINCE THESE COMPANIES WERE IN LIQUIDATION AND OFFICIAL LI QUIDATOR HAD TO PERFORM A NUMBER OF DUTIES, THEREFORE, THE APPEALS COULD NOT BE FILED IN TIME. IN THE APPLICATION, NO WHERE POINTED OUT WHE N THE ORDER OF THE CIT(A) WAS RECEIVED; WHEN THE FILE WAS MOVED FOR TA KING A DECISION THAT APPEALS TO BE FILED; WHEN THE EARLIER OL WAS TRANSF ERRED - THE ITA NO.1494 & 1495/AHD/2015 6 APPLICATION IS TOTALLY VAGUE. IT NO WHERE PROVIDED ANY REASONABLE CAUSE WHICH HAS PROHIBITED THE APPELLANTS TO FILE THE APP EAL IN TIME. WE COULD APPRECIATE DAY-TO-DAY PROBLEMS FACED BY THE OL ON A CCOUNT OF HIS PRE- OCCUPATION WITH OTHER OFFICIAL DUTIES. BUT, HERE, THE DELAY OF 484 DAYS I.E. IS MORE THAN ONE-AND-HALF YEARS. FOR SUCH HUG E DELAY, THERE SHOULD BE SOME PLAUSIBLE EXPLANATION. NO AFFIDAVIT IN SUP PORT OF APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED. THEREFORE, WE DO NOT SEE ANY REASON TO CONDONE THE DELAY IN FILING THE APPEALS. BOTH APPEALS ARE DISMISSED BEING TIME BARRED. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 4 TH DECEMBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/12/2015