Sri KVSV Prasada Sarma, Hyderabad V. The ACIT, Circle-1, Vijayawada

ITA 150/VIZ/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6901 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 30-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N RAUL
• Assessee Lawyers: A C GANGAIAH
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

ITA NO.150/VIZAG/2011 KVSV PRASAD SARMA VIJAYAWADA PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.150/VIZAG/2011 ASSESSMENT YEAR: 2001-02 KVSV PRASAD SARMA, HYDERABAD VS. ACIT CIRCLE-1, VIJAYAWADA (APPELLANT) PAN NO:ACWPK 3130 F (RESPONDENT) APPELLANT BY: SHRI A.C. GANGAIAH, CA RESPONDENT BY: SHRI N. RAUL, CIT ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 10.04.2003 PASSED BY LEARNED CIT(A), VIJAYAWADA AND IT RELATES TO THE ASSESSMENT YEAR 2001-02. THE APPEAL IS BARRED BY L IMITATION BY 2774 DAYS. 2. THE ASSESSEE HAS MOVED A PETITION FOR CONDON ATION OF DELAY, WHEREIN FOLLOWING SUBMISSIONS HAVE BEEN MADE. FOR THE ASSESSMENT YEAR 2001-02 THE ASSESSEE FILED THE RETURN OF INCOME BEFORE THE ASSTT. COMMISSIONER OF INCOME T AX, CIRCLE-1(1) VIJAYAWADA. THE ASSTT. COMMISSIONER OFF ICER PASSED THE ORDER UNDER SECTION 143(3) ON 06-11-2002 . THE ASSESSING OFFICER DID NOT ALLOW RELIEF CLAIMED UNDE R SECTION 89 OF THE I.T. ACT. THE ASSESSEE FILED AN APPEAL BEFOR E THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS), VIJAYAWADA AGA INST THE ORDERS OF THE ASSESSING OFFICER. THE LEARNED CO MMISSIONER OF INCOME-TAX (APPEALS) DISPOSED THE APPEAL VIDE OR DER IN ITA NO.143/VJA/ CIT(A)/V/02/03 DATED 10-04-2003 DISMISS ING THE APPEAL. THE SAID ORDER WAS SERVED ON THE ASSESSEE O N 26-06- 2003. THE ASSESSEE WAS PREPARED TO CARRY THE MATTER FURTH ER IN APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIB UNAL. HOWEVER, ASSESSEES COUNSEL AT THAT TIME EXPRESSED THE VIEW THAT AS THE COMMISSIONER OF INCOME-TAX (APPEALS) WA S CONSISTENTLY HOLDING THAT THE RELIEF UNDER SECTION 89(1) IS NOT ALLOWABLE NO USEFUL PURPOSE WOULD BE SERVED BY FILI NG FURTHER APPEAL. HOWEVER, NOW THE ASSESSEE CAME TO KNOW FROM A.C.GANGAIAH, CHARTERED ACCOUNTANT ON 27 TH MARCH, 2011 THAT THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, VISAKHAP ATNAM ITA NO.150/VIZAG/2011 KVSV PRASAD SARMA VIJAYAWADA PAGE 2 OF 4 BENCH HELD VIDE CONSOLIDATED ORDER DATED 23-7-2004, THAT RELIEF UNDER SECTION 89 OF THE I.T.ACT IS ALLOWABLE. THE AS SESSEE IS FILING THE APPEAL BEFORE THE HON'BLE ITAT WITH A DE LAY OF 2780 DAYS. AS THE DELAY IN FILING THE APPEAL IS FOR GOOD AND SUFFICIENT REASON, THE ASSESSEE PRAYS THE HON'BLE ITAT TO KIND LY CONDONE THE DELAY IN FILING THE APPEAL AND ENTERTAIN THE AP PEAL FOR PASSING APPROPRIATE ORDERS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE, IN ADD ITION TO REITERATING THE SUBMISSIONS MADE IN THE PETITION, FURTHER PRAYED FO R SYMPATHETIC CONSIDERATION OF THE PETITION ON THE GROUND THAT TH E ASSESSEE HEREIN IS A RETIRED EMPLOYEE. ON THE OTHER HAND, THE LEARNED D EPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE ASSESSEE WAS NO T SERIOUS ABOUT PURSUING HIS APPEAL FILED BEFORE THE LEARNED CIT(A) AND HENCE HE DID NOT APPEAR BEFORE THE FIRST APPELLATE AUTHORITY TO REPR ESENT HIS CASE. FURTHER THE DELAY IN FILING THE PRESENT APPEAL IS ENORMOUS WHICH HAS NOT BEEN PROPERLY EXPLAINED BY HIM. ACCORDINGLY HE CONTENDE D THAT THE APPEAL SHOULD NOT BE ADMITTED AS THE SAME IS BARRED BY LIM ITATION. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE RECORD. THE MATTER OF CONDONATION OF DELAY HAS BEEN CONSIDERED BY VARIOUS COURTS. FOR THE SAKE OF CONVENIENCE, WE SHALL TRAVEL THROUGH SO ME OF THE RELEVANT OBSERVATIONS MADE BY VARIOUS COURTS. THE HON'BLE S UPREME COURT IN THE CASE OF CALCUTTA MUNICIPAL CORPN. VS. PAWAN KUMAR S ARAF J.T 1999 (1) S.C.39 HAS HELD THAT EVEN IF THE COURT SHOULD BE LI BERAL IN CONDONATION OF DELAY, IT SHOULD BE UNEXCUSABLE UNLESS SUFFICIENT C AUSE IS SHOWN. THEIR LORDSHIPS IN PARA 20 IN THE ABOVE SAID CASE HAS HEL D AS UNDER: IT WAS SUBMITTED THAT THE COURT SHOULD BE LIBERAL IN CONDONING THE DELAY. LIBERAL ALRIGHT, BUT DELAY IS UNEXCUSABLE UNLESS SUFFICIENT CAUSE IS SHOWN. IT I S NOT THE LAW THAT WHEN AN APPLICATION SEEKING THE CONDONATIO N OF DELAY IS FILED BY THE STATE OR ANY AUTHORITY, THIS COURT MUST INVARIABLY CONDONE THE DELAY IRRESPECTIVE OF WHETHE R SUFFICIENT CAUSE IS SHOWN OR NOT. THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. METAL DISTRIBUTORS LTD (1988) 172 ITR 356 HELD AS UNDER: THAT IN THE ABSENCE OF PROPER EXPLANATION FOR THE DELAY IN PRESENTING FOR LEAVE TO APPEAL TO THE HON'BLE SUPRE ME COURT, THE DELAY COULD NOT BE CONDONED. ITA NO.150/VIZAG/2011 KVSV PRASAD SARMA VIJAYAWADA PAGE 3 OF 4 ON THE SIMILAR MATTER AND FACTS, THE HON'BLE RAJAST HAN HIGH COURT IN THE CASE OF STATE OF RAJASTHAN VS. CHAUDHURY CON STRUCTION AIR 1988 RA. 123 HELD:- THAT IN THE ABSENCE OF MATERIAL PARTICULARS AS TO WHY DELAY HAD BEEN CAUSED, THE DELAY COULD NOT BE CONDONED BY MERELY ACCEPTING THE EXPLANATION THAT THE DELAY OCC URRED IN THE GOVERNMENT OFFICE. THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SOOR AJAMUL NAGARMAL VS. GOLDEN FIBRE & PRODUCTS AIR 1969 (CAL) 381 HAS HELD THAT:- THE CAUSE FOR DELAY IN MAKING THE APPLICATION WHIC H BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT B E A SUFFICIENT CAUSE WITHIN THE MEANING OF SECTION 5 OF THE LIMITATION ACT. WHERE NO NEGLIGENCE NOR INACTION N OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPLICANT, A LIB ERAL CONSTRUCTION OF THE SECTION HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. THE APPLICANT HAS TO SHOW SUFFICIENT CAUSE FOR NOT FILING THE APPLICATION ON THE LAST DAY OF LIMITATION AND MUST EXPLAIN THE DELAY MADE THERE AFTER DAY-BY-DAY TILL THE ACTUAL DATE OF THE FILING OF TH E APPLICATION. IN ANOTHER CASE OF ASHUTOSH BHADRA VS. JATINDER MOHA N SEAL AIR 1954 CAL. 238, THE HON'BLE CALCUTTA HIGH COURT HAS TAKEN A SI MILAR VIEW:- THE EXISTENCE OF SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR THE EXERCISE OF DISCRETION UNDER SECTION 5 OF T HE INDIAN LIMITATION ACT. SUFFICIENT CAUSE MUST MEAN A CAUS E BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE SE CTION. A CAUSE FOR DELAY WHICH THE PARTY COULD HAVE AVOIDED BY THE EXERCISE OF THE CARE AND ATTENTION CANNOT BE A SUFF ICIENT CAUSE. IN OTHER WORDS, THE COURT MUST BE ABLE TO S AY, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE DELAY WAS REASONABLE. A CAUSE ARISING FRO M THE NEGLIGENCE OF THE PARTY CANNOT BE A SUFFICIENT CAU SE WITHIN THE MEANING OF SECTION 5. 5. IN THE INSTANT CASE, AS STATED BY LEARNED DEPA RTMENTAL REPRESENTATIVE, THE ASSESSEE HAS FAILED TO APPEAR BEFORE THE LEARNE D CIT(A) TO PURSUE HIS APPEAL. THE APPEAL FILED BY THE ASSESSEE WAS DISPO SED OF BY THE FIRST APPELLATE AUTHORITY, EX-PARTE, ON 10.04.2003. THIS ACTION OF THE ASSESSEE SHOWS THAT HE WAS NOT SERIOUS IN PURSUING THE ISSUE AGITATED IN THE INSTANT APPEAL. ACCORDING TO THE PETITION FILED BY THE ASS ESSEE, HE DID NOT PURSUE THE MATTER FURTHER ON THE ADVICE OF HIS ERSTWHILE C OUNSEL. IT WAS FURTHER STATED THAT THE ISSUE URGED IN THIS APPEAL WAS SETT LED BY THE ITAT ON 23-7- 2004 AND IT CAME TO THE KNOWLEDGE OF THE ASSESSEE O NLY ON 27.3.2011 ITA NO.150/VIZAG/2011 KVSV PRASAD SARMA VIJAYAWADA PAGE 4 OF 4 WHEN THE ASSESSEE MET THE PRESENT COUNSEL. THIS EXP LANATION OF THE ASSESSEE FOR THE DELAY BETWEEN JULY 2004 AND MARCH 2011 IS NOT CONVINCING. THE ISSUE UNDER DISPUTE WAS SETTLED BY THE TRIBUNAL LONG BACK IN 2004, WHICH WOULD HAVE COME TO THE KNOWLEDGE OF ALL THE COUNSEL PRACTISING IN THIS FIELD. HENCE, THE ASSESSEE, WHO WAS ASSISTED BY A PROFESSIONAL, COULD NOT CLAIM IGNORANCE OF THE DECI SION OF THE TRIBUNAL. THUS, ON A CONSPECTUS OF THE MATTER AND ALSO BY DUL Y CONSIDERING THE JUDICIAL RULING, WE ARE OF THE VIEW THAT THE ASSESS EE HAS FAILED TO GIVE A PLAUSIBLE EXPLANATION FOR THE DELAY OF 2774 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. WE THEREFORE DISMISS THIS APPEAL AS BARRED BY LIMITATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 2 ND JUNE, 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATE: 02-06-2011 COPY TO 1 SHRI K.V.S.V. PRASAD SARMA, C/O A.C. GANGAIAH, CH ARTERED ACCOUNTANT, 304 VENKATESWARA ARCADE, 178 MOTHI NAGAR, HYDERABAD 500 018 2 THE ACIT CIRCLE-1, VIJAYAWADA 3 4. THE CIT VIJAYAWADA THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM