ACIT, Circle - 2, Asansol, Asansol V. Shri Kumud Ranjan Banerjee, Asansol

ITA 1503/KOL/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70426 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2011
• Court: TRIBUNAL
• Department Lawyers: A P ROY
• Assessee Lawyers: S K TULSIYAN; R N RAM A
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 1503/KOL/2011 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SRI KUM UD RANJAN BANERJEE CIRCLE-2, ASANSOL. (PAN: ADVPB1771B) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 10.12.2013 DATE OF PRONOUNCEMENT: 10.12.2013 FOR THE APPELLANT: SHRI A. P. ROY, SR. DR FOR THE RESPONDENT: S/SHRI S. K. TULSIYAN, ADV. & R. N. RAM, A/R $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), ASANSOL IN APPEAL NO. 387/CIT(A)/ASL/CIR-2/ASL/2010-11 DATED 27.07.2011. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-2, ASANSOL U/S. 143(3) OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 20 .12.2010. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL BY REVENUE IS BARRED BY LIMITATION BY 31 DAYS AND REVENUE HAS FILED CONDONATION PETITION ALONG WI TH AFFIDAVIT. LD. COUNSEL FOR THE ASSESSEE OPPOSED THE CONDONATION OF DELAY AND MADE ARGUMENTS THAT THIS IS COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL & ANR. VS. LIVING MEDIA INDIA LTD. & ANR. IN CIVIL APPEAL NO. 2474-2475 OF 2012 DATED 24.02.2012. ACCORDING TO MEMORANDUM OF APPEAL, IN FORM NO. 36 T HE DATE OF COMMUNICATION OF IMPUGNED ORDER IS 09.08.2011 AND APPEAL WAS FILED BEFORE TRI BUNAL ON 08.11.2011. HENCE, THERE WAS DELAY OF 31 DAYS IN FILING OF APPEAL. THE RELEVANT AFFIDAVIT OF THE ACIT, CIRCLE-2, ASANSOL READS AS UNDER: BEFORE THE HONBLE ITAT, KOLKATA L, DEBASHIS CHAKRABORTY, ASSTT. COMMISSIONER OF INC OME TAX, CIRCLE-2, ASANSOL DO HEREBY SOLEMNLY DECLARE AND AFFIRM THE FOLLOWING : 2 ITA NO. 1503/K/2011 SHRI KUMUD RANJAN BANERJEE, AY:2008-09 1. THAT THE ORDER OF THE LD. CIT(A), ASANSOL DT. 27.07 .2011 IN THE CASE OF SRI KUMUD RANJAN BANERJEE, PROP. OF MASTER ENGG. FOR TH E A.Y. 2008-2009 RECEIVED IN THE OFFICE OF THE CIT, ASANSOL ON 09.08 .2011. 2. THAT THE LAST DATE OF FILING OF APPEAL AGAINST THE SAID ORDER OF THE CIT(A), ASANSOL BEFORE THE HONBLE ITAT, KOLKATA WAS 07.10. 2011. 3. THAT THE APPEAL COULD NOT BE PREPARED ON TIME BECAU SE OF THE FOLLOWING REASONS: (I) THAT THE A. S. R. WAS PREPARED BY THE A.O. AND FORW ARDED TO THE O/O THE JOINT C.1.T., RANGE-2, ASANSOL ALONG WITH THE A SSESSMENT RECORD ON 22.08.2011 FOR CONSIDERING THE ISSUE OF FILING 2 ND APPEAL. (II) THAT THE A.S.R ALONG WITH J.C.1.T,S COMMENT AND A SSTT RECORD WAS FORWARDED TO THE O/O C.I.T., ASANSOL ON 16.09.2011 FOR CONSIDERING OF FILING OF 2ND APPEAL. BUT THE THEN COMMISSIONER OF LNCOME TAX WAS UNDER ORDER OF TRANSFER, HENCE APPEAL COULD NOT BE CONSIDERED. (III) THE PRESENT COMMISSIONER OF LNCOME TAX, ASANSOL AFT ER TAKING THE CHARGE OF CIT, ASANSOL DIRECTED ON 21.10.2011 TO FI LE 2ND APPEAL BEFORE ITAT WHICH IS RECEIVED BY ME ON 24.10.2011. (IV) THE APPEAL PAPERS HAVE BEEN PREPARED AND MADE READY ON 04.11.201L FOR SUBMISSION BEFORE THE HONBLE ITAT, KOLKATA. L HEREBY DECLARE AND AFFIRM THAT THE ABOVE STATEMEN T MADE BY ME IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND OBLIGE. SD/- 04/11/11 ACIT, CIRCLE-2, ASANSOL 3. WHEN THIS CASE WAS CALLED FOR HEARING, LD. SR. DR W AS SPECIFICALLY ASKED WHETHER HE WANTS TO ADD ANYTHING IN THE REASONS OR THERE ANY O THER REASONS APART FROM THE FACT THAT THE CIT, ASANSOL RECEIVED THE ORDER OF CIT(A) ON 09.08.2011 AND THE PAPERS WERE LYING WITH HIM FOR ALMOST 09.08.2011 TO 21.10.2011. THE RELEVANT CERT IFICATE OF CIT, ASANSOL READS AS UNDER: CERTIFIED THAT THE COPY OF THE COMMISSIONER OF INC OME-TAX (APPEALS) ORDER DATED 27.07.2011 IN APPEAL NO. 387/CIT(A)/ASL/CIR-2/2010- 11 IN RESPECT OF ASSESSMENT YEAR 2008-09 IN THE CASE OF SRI KUMUD RANJAN BANERJEE, A DVPB1771B WAS COMMUNICATED TO ME ON 09.08.2011. SD/- (SUDHIR KUMAR) COMMISSIONER OF INCOME-TAX, ASANSOL 4. LD. SR. DR STATED THAT HE CAN ONLY SUPPORT THE A FFIDAVIT AND COULD NOT ARGUE AS TO WHY THE PAPERS WERE LYING WITH THE CIT FOR MORE THAN 2 MONTHS. AS THE REVENUE NOW BEFORE US COULD NOT SUPPORT OR COULD NOT GIVE ANY REASONABLE CAUSE FOR CONDONATION OF DELAY, WE ARE OF THE VIEW THAT THERE IS NO REASONABLE CAUSE FOR DELA Y AND DELAY CANNOT BE CONDONED. IN SIMILAR 3 ITA NO. 1503/K/2011 SHRI KUMUD RANJAN BANERJEE, AY:2008-09 CIRCUMSTANCES, HONBLE SUPREME COURT IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL & ANR. VS. LIVING MEDIA INDIA LTD. & ANR. IN CIVIL APPEAL NO. 2474-2475 OF 2012 DATED 24.02.2012, WHEREIN IT HAS BEEN HELD AS UNDER: 12) IT IS NOT IN DISPUTE THAT THE PERSON(S) CONCE RNED WERE WELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED P ERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETITIO N IN THIS COURT. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LIMITATION WHEN THE DEPARTMENT WAS POSSESSED WITH COMPETENT PERSONS FAMILIAR WITH COURT PROCEEDI NGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, WE ARE POSING A QUESTIO N WHY THE DELAY IS TO BE CONDONED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT IS A PARTY BEFORE US. THOUGH WE ARE CONSCIOUS OF TH E FACT THAT IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIG ENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE, A LIBERAL CONCESSION HAS TO BE AD OPTED TO ADVANCE SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THAT IN THE FACTS AND C IRCUMSTANCES, THE DEPARTMENT CANNOT TAKE ADVANTAGE OF VARIOUS EARLIER DECISIONS. THE CL AIM ON ACCOUNT OF IMPERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES CANNOT BE ACCEPTED IN VIEW OF THE MODERN TECHNOLOGIES BEIN G USED AND AVAILABLE. THE LAW OF LIMITATION UNDOUBTEDLY BINDS EVERYBODY INCLUDING TH E GOVERNMENT. 13) IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT UNLESS THEY HAV E REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THERE WAS BONAFIDE EF FORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FO R SEVERAL MONTHS/YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED-TAPE IN THE P ROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSUR E THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DE PARTMENTS. THE LAW SHELTERS EVERYONE UNDER THE SAME LIGHT AND SHOULD NOT BE SWI RLED FOR THE BENEFIT OF A FEW. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLA NATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, A CCORDING TO US, THE DEPARTMENT HAS MISERABLY FAILED TO GIVE ANY ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. ACCORDINGLY, THE APPEALS ARE LI ABLE TO BE DISMISSED ON THE GROUND OF DELAY. FROM THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF T HE VIEW THAT THE DELAY CANNOT CONDONED AND APPEAL CANNOT BE ADMITTED. APPEAL OF REVENUE IS DI SMISSED AS UNADMITTED. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10TH DECEMBER, 2013 12 '3' 4 JD.(SR.P.S.) 4 ITA NO. 1503/K/2011 SHRI KUMUD RANJAN BANERJEE, AY:2008-09 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT ACIT, CIRCLE-2, ASANSOL 2 ./,- / RESPONDENT SRI KUMUD RANJAN BANERJEE, PROP. OF MASTER ENGG. CONCERN, 162/1, APCXAR GARDEN, ASANSOL. 3 . 0' ( )/ THE CIT(A), ASANSOL 4. 5. 0' / CIT ASANSOL <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .