Yuksom Engineering Work(p), Sikkim V. JCIT, Range-2 Siliguri, Siliguri

ITA 1501/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78329 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2013
• Court: TRIBUNAL
• Department Lawyers: DAVID CHAWNGTHU ACIT
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 133A; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBL E SRI GEORGE MATHAN, JM] S.P.NO.41/KOL/2014 (A/O ITA NO.1501/KOL/2013) ITA NO.1501/KOL/2013 ASSESSMENT YEAR : 2003-04 ( APPELLANT ) (RESPONDENT) YUKSOME ENGINEERING WORKS(P)LTD. -VS- J.C.I.T., RA NGE-2 GANGTOK SILIGURI (PAN:AAACY 4561 B) FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI DAVID CHAWNGTHU, ACIT, SR.DR DATE OF HEARING : 26.05.2014 DATE OF PRONOUNCEMENT : 26. 05.2014. ORDER PER SHRI GEORGE MATHAN, JM S.P.NO.41/KOL./2014 IS A STAY PETITION FILED BY T HE ASSESSEE IN THE ASSESSEES APPEAL IN ITA NO.1501/KOL/2013 FOR ASSESSMENT YEAR 2003-04 2. SHRI SUBASH AGARWAL, ADVOCATE, REPRESENTED ON B EHALF OF THE ASSESSEE AND SHRI DAVID CHAWNGTHU, ACIT(SR.DR) REPRESENTED ON BEHAL F OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSE E IS DOING BUSINESS OF CONTRACT WORK IN SIKKIM. IT WAS THE SUBMISSION THAT THE ASSE SSEE WAS ALSO FILING ITS RETURN OF INCOME AND PAYING TAXES. IT WAS THE SUBMISSION THAT NOTICE U/S 148 OF THE IT ACT HAD BEEN ISSUED TO THE ASSESSEE ON THE BASIS OF SURVEY CONDUCTED U/S 133A OF THE ACT IN THE CASE OF ONE M/S.MANAKAMNA FLOUR MILLS PVT. LTD. IT WAS THE SUBMISSION THAT THE ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT BY THE JCIT, RANGE-2, SILIGURI U/S 144 OF THE ACT READ WITH 147 ON 27.12.2007. IT WAS THE SUB MISSION THAT CONSEQUENTLY THE ASSESSEE HAD FILED A WRIT PETITION BEFORE THE HONB LE HIGH COURT OF SIKKIM AGAINST THE S.P.NO.41/KOL/2014 A/O.ITA.NO.1501/KOL/2013 YUKSOME ENGINEERING W ORKS (P)LTD. A.YR.2003-04 2 NOTICE ISSUED U/S 148 OF THE ACT. IT WAS THE SUBMIS SION THAT AFTER THE DEMAND NOTICE WAS SERVED ON THE ASSESSEE THE ASSESSEE HAS BEEN GR ANTED STAY BY THE HONBLE HIGH COURT OF SIKKIM. SUBSEQUENTLY THE HONBLE HIGH COUR T HAD PASSED ORDER DATED 01.09.2009 DIRECTING THE ASSESSEE TO APPEAR BEFORE JCIT WITH THE VARIOUS DETAILS. WHEN THE ASSESSEE APPEARED HE WAS DIRECTED BY JCIT TO FILE NECESSARY APPEAL BEFORE LD. CIT(A). MISCELLANEOUS APPLICATION HAD BEEN FILE D BEFORE THE HONBLE HIGH COURT OF SIKKIM SEEKING FURTHER DIRECTIONS WHICH WAS ALSO WITHDRAWN BY THE ASSESSEE. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) ON 1 1.05.2010 AFTER A DELAY OF 832 DAYS. THE APPEAL WAS ORIGINALLY DISMISSED BY LD. CIT(A) A S THE APPEAL FEES WAS NOT PAID. THE APPELLANT HAD APPROACHED THE INCOME TAX APPELLA TE TRIBUNAL WHICH HAD VIDE ITS ORDER RESTORED THE ISSUE TO THE FILE OF LD.CIT(A) T O RE-DECIDE THE APPEAL AND TO RE- ADJUDICATE THE ISSUE OF CONDONATION OF DELAY. IT WA S THE SUBMISSION THAT THE LD. CIT(A) IN THE SET ASIDE PROCEEDINGS DISMISSED THE ASSESSEE S APPEAL WITHOUT CONDONING THE DELAY OF THE ASSESSEE IN FILING THE APPEAL. IT WAS THE SUBMISSION THAT CONSEQUENTLY THE SUBSTANTIAL DEMAND RAISED IN THE ASSESSMENT ORDER O F NEARLY RS.68,91,889/- IS BEING PRESSED FOR RECOVERY. IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE APPEAL OF THE ASSESSEE WAS RESTORED TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION ON MERITS IF THE TRIBUNAL WAS OF THE VIEW THAT THE DELAY WAS ON ACCO UNT OF REASONABLE CAUSE. IT WAS THE SUBMISSION THAT THE ASSESSEE MAY BE GRANTED EARLY H EARING OF ITS APPEAL. 4. IN REPLY THE LD. DR SUBMITTED THAT THE LD. CIT(A ) HAVING ADJUDICATED THE MATTER AND NOT CONDONING THE DELAY THERE WAS NO QUESTION O F GRANTING ANY STAY TO THE ASSESSEE. IT WAS, HOWEVER, SUBMITTED BY THE LD. DR THAT HE HAD NO OBJECTION IF THE APPEAL OF THE ASSESSEE WAS DISPOSED OF AT AN EARLY DATE. 5. AT THIS POINT THE BENCH DECIDED THAT AFTER SEEIN G THE SEQUENCE OF DATES IT WAS NOTICED THAT THE ASSESSEE HAS NOT BEEN VILEING AWAY ITS TIME AFTER RECEIVING THE ORDER OF THE ASSESSMENT. IT WAS NOTICED THAT THE ASSESSEE HA D BEEN TAKING RECOURSE TO THE LEGAL PROCEEDINGS FOR REDRESSAL OF ITS GRIEVANCES. IT WAS CONSEQUENTLY DECIDED TO HEAR THE APPEAL OF THE ASSESSEE ALONG WITH THE STAY PETITION . THE LD. AR FOR THE ASSESSEE REITERATED HIS STAND THAT THE DELAY IN FILING THE A PPEAL WAS ON ACCOUNT OF THE FACT THAT S.P.NO.41/KOL/2014 A/O.ITA.NO.1501/KOL/2013 YUKSOME ENGINEERING W ORKS (P)LTD. A.YR.2003-04 3 THE ASSESSEE HAS BEEN TAKING RECOURSE TO ALTERNATE REMEDIES. IT WAS THE SUBMISSION THAT THE DELAY WAS ON ACCOUNT OF A REASONABLE CAUSE AND OUGHT TO HAVE BEEN CONDONED. HE RELIED UPON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF COLLECTOR, LAND ACQUISITON VS MST.KATIJI & OTHERS REPORTED IN 167 I TR 471. 6. IN REPLY THE LD. DR SUBMITTED THAT THE ASSESSEE WAS TO EXPLAIN EVERY DAY OF THE DELAY AND THIS HAS NOT BEEN DONE. IT WAS THE SUBMIS SION THAT TAKING RECOURSE TO WRONG LEGAL REMEDIES WAS NOT A REASONABLE CAUSE. HE VEHEM ENTLY OPPOSED THE PRAYER FOR CONDONATION OF DELAY. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE LIST OF DATES AS HAS BEEN SUBMITTED BY THE ASSESSEE WHICH IS EXTRACTED H EREIN BELOW :- DATE PARTICULARS 06.02.2007 THE APPELLANT RECEIVED A NOTICE U/S 148 DATED 06.02.2007 20.12.2007 WRIT PETITION FILED BEFORE THE HIGH COUR T OF SIKKIM 27.12.2007 ASSESSMENT U/S 144/147 WAS COMPLETED. 31.12.2007 DEMAND NOTICE WAS SERVED ON THE APPELLAN T. 03.03.2008 HIGH COURT GRANTED A STAY AFTER ADMITTIN G THE WRIT PETITION. 01.09.2009 HIGH COURT PASSED AN ORDER DIRECTING THE APPELLANT TO APPEAR BEFORE THE JCIT WITH THE VARIOUS DETAILS. 16.09.2009 THE APPELLANT APPEARED BEFORE THE JCIT W ITH DETAILS AS PER THE DIRECTION OF THE HIGH COURT AND THE JCIT SUGGESTED THE APPELLANT TO FILE AN APPEAL BEFORE THE LD. CIT(A) MISCELLANEOUS APPLICATION WAS FILED BEFORE THE HIG H COURT SEEKING FURTHER ORDERS AND DIRECTIONS IN THE JUDGEMENT/ORDER PASSED BY THE HIGH COURT 25.02.2010 THE MISCELLANEOUS APPLICATION WAS WITHDR AWN BY THE APPELLANT 11.05.2010 AN APPEAL FILED BY THE APPELLANT BEFORE THE LD.CIT(A) WITH A DELAY OF 832 DAYS 07.03.2011 APPEAL OF THE APPELLANT WAS NOT ADMITTE D BY THE LD. CIT(A) SINCE THE APPEAL FEES WAS NOT PAID BY THE APPELLANT. 07.02.2012 ON APPEAL BEFORE HONBLE ITAT, THE MATTE R WAS RESTORED BACK TO THE FILE OF THE LD. CIT(A) DIRECTING TO ADJUDICATE THE MATTER A FTER PROVIDING REASONABLE OPPORTUNITY OF HEARING. THE HONBLE ITAT FURTHER DIRECTED THE LD. CIT(A) TO ADJUDICATE THE ISSUE OF CONDONATION OF DELAY. 18.03.2013 THE LD. CIT(A) DISMISSED THE APPEAL OF T HE ASSESEE IN NOT CONDONING THE DELAY IN FILING THE APPEAL. 24.05.2013 THE APPELLANT FURTHER PREFERRED AN APPEA L BEFORE THE HONBLE ITAT. S.P.NO.41/KOL/2014 A/O.ITA.NO.1501/KOL/2013 YUKSOME ENGINEERING W ORKS (P)LTD. A.YR.2003-04 4 IT CLEARLY SHOWS THAT THE ASSESSEE HAS BEEN FOLLOWI NG UP BY TAKING RECOURSE TO LEGAL REMEDIES TO REDRESS ITS GRIEVANCES. HOWEVER, THE HO NBLE HIGH COURT HAS DIRECTED THE ASSESSEE TO APPEAR BEFORE JCIT ON THE SPECIFIC DAY. BUT BY THAT DATE THE ASSESSMENT HAD ALREADY BEEN COMPLETED. CONSEQUENTLY THE ASSESS EE WAS DENIED THE OPPORTUNITY TO SUBSTANTIATE ITS CASE. A PERUSAL OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS MST.KATIJI & OTHERS REFERRED TO SUPRA CLEARLY SHOWS THAT THE HONBLE SUPREME COURT HAS HELD AS FO LLOWS :- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUF FICIENT CAUSE IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE -PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. A JUSTIFIABLY LIBERAL APPROA CH HAS TO BE ADOPTED ON PRINCIPLE. EVERY DAYS DELAY MUST BE EXPLAINED: DOES NOT IMP LY A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENS E AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREATMENT AND THE L AW IS ADMINISTERED IN AN EVENHANDED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEP-MO THERLY TREATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PRE FERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECA USE OF A NON-DELIBERATE DELAY. THIS CLEARLY SHOWS THAT THE TECHNICAL DEFECT IN THE PRESENT CASE IS THE DELAY IN FILING THE APPEAL. THIS TECHNICAL DEFECT CANNOT BE SAID TO COM E IN THE WAY OF SUBSTANTIAL JUSTICE BY ADJUDICATING THE APPEAL ON MERITS,. IN FACT THER E WOULD BE NO LOSS TO THE REVENUE IF THE ASSESSEES APPEAL IS ADJUDICATED ON MERITS. BY DISMISSING THE ASSESSEES APPEAL ON THE TECHNICALITY OF LIMITATION THE ASSESSEE ADMITTE DLY WOULD BE PUT INTO SUBSTANTIAL HARDSHIP AS THE ASSESSMENT IS 144 ASSESSMENT, BEING EXPARTE ASSESSMENT AND THE ASSESSEE HAS NOT BEEN HEARD BEFORE HE HAS BEEN ASSE SSED. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE LD. CIT(A) WAS SUPPORTED BY A REASONABLE CAUSE. HOWEVER, AS THE AP PEAL OF ASSESSEE HAS NOT BEEN ADJUDICATED ON MERITS BY LD. CIT(A) THE ISSUES IN T HIS APPEAL ARE RESTORED TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION AFTER GRANTING THE A SSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. S.P.NO.41/KOL/2014 A/O.ITA.NO.1501/KOL/2013 YUKSOME ENGINEERING W ORKS (P)LTD. A.YR.2003-04 5 8. IN THE RESULT THE STAY PETITION FILED BY THE ASS ESSEE STANDS DISMISSED AND THE APPEAL OF THE ASSESSEE IN ITA NO.1501/KOL/2013 STAN DS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.05.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 26.05.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. YUKSOME ENGINEERING WORKS (P)LTD., PALZOR STADIUM ROAD, GANGTOK, EAST SILLIM. 2 J.C.I.T., RANGE-2, SILIGURI 3 . CIT(A)-SILIGURI 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES