Okara Agro Industries Ltd., New Delhi V. ACIT, New Delhi

ITA 1524/DEL/2011

• Counselvise Citation: 152420114 RSA 2011
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-02-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 29-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RA J TANDON
• Assessee Lawyers: SANJAY MEHRA
• Keywords: Non compliance; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI. BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL I.T.A. NO.1524(DEL)/2011 ASSESSMENT YEAR: 1996-97 OKARA AGRO INDUSTRIES LIMITED, ASS ISTANT COMMISSIONER OF 1557, FIRST FLOOR, CHURCH GATE, VS. IN COME-TAX, CIRCLE 2(5), KASHMERE GATE, DELHI. NEW DELHI. (APPLICANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY MEHRA, C.A. RESPONDENT BY : SH RI RAJ TANDON, CIT, DR DATE OF HEARIN G: 16.02.2012 DATE OF PRONOUN CEMENT: 16.02.2012. ORDER PER K.G. BANSAL : A.M THE FACTS OF THE CASE ARE THAT THE ASSESSEE-C OMPANY FILED ITS RETURN ON 31.10.1996 DECLARING TOTAL INCOME OF RS. 5,01 ,190/-. ASSESSMENT U/S 143(3) WAS COMPLETED ON 31.03.1999 AT TOTAL INCO ME OF RS. 31,72,33,820/-. THE ASSESSEE FILED APPEAL AGAINST THIS ORDER BEF ORE THE CIT(APPEALS)-VIII, NEW DELHI. HE DISPOSED OFF THE APPEAL ON 31.0 3.2000 IN APPEAL NO. 627/1999-00. THE APPEAL WAS DISMISSED BY MAKING FOLLOWING OBSERVATIONS:- 2.1 AGGRIEVED BY THE ORDER THE APPELLANT HAS FILED THE PRESENT APPEAL. THE OBJECTIONS OF THE APPELLANT ARE CONT AINED IN THE STATEMENT OF FACTS FILED ALONG WITH THE GROUNDS OF APPEAL. IN THE COURSE OF APPELLATE PROCEEDINGS, SHRI SANJIV WADHERA, AR ITA NO. 1524(DEL)/2011 2 OF THE APPELLANT, WAS ASKED TO PRODUCE SUPPORTING DOCUMENTS IN SUPPORT OF THE RETURNED INCOME. THE HEARING W AS FIXED ON 24.2.2000. ON THE AFORESAID DATE NOBODY ON BEHA LF OF THE APPELLANT APPEARED NOR WAS ANY PETITION FOR A DJOURNMENT FILED. HOWEVER, SHRI WADHERA, VIDE THE LETTER DATED 29.02.2000, INFORMED THIS OFFICE THAT DUE TO PROFESSIONAL ENGAGEMENT HE COULD NOT ATTEND ON 24.2.2000 AND R EQUESTED THAT THE CASE BE ADJOURNED TO 8.3.2000. ACCORD INGLY, THE CASE WAS REFIXED ON 8.3.2000. ON 8.3.2000 AGAIN THERE WAS NON COMPLIANCE BY THE APPELLANT. SHRI WADHERA VIDE THE LETTER DATED 13.3.2000 INFORMED THIS OFFICE THAT THE R ECORDS WERE BEING ARRANGED AND REQUESTED THAT THE CASE BE A DJOURNED TO 21.3.2000. ACCORDINGLY, THE HEARING WAS FIXED ON 21.3.2000. ON THE AFORESAID DATE AGAIN NO BODY APPEARED O N BEHALF OF THE APPELLANT NOR WAS ANY PETITION FOR ADJOURNM ENT FILED. ON PERUSAL OF THE APPEAL RECORDS, I FIND THAT THE AP PELLANT HAS BEEN SEEKING TIME ON ONE PRETEXT OR THE OTHER. AT THE ASSESSMENT STATE ALSO IT HAD FAILED TO PROVIDE ANY COOPE RATION TO THE AO. DESPITE A NUMBER OF OPPORTUNITIES AFFORDED BY THE AO, THE APPELLANT COULD NOT SUBSTANTIATE THE UNSECU RED LOANS, SUNDRY CREDITORS AND VARIOUS EXPENSES DEBITED I N THE PROFIT AND LOSS ACCOUNT. AT THE APPEAL STAGE ALSO THE APPELLANT HAS FAILED TO FURNISH ANY SUPPORTING MATERIAL AND DOC UMENTS IN SUPPORT OF ITS CLAIM. TAKING INTO CONSIDERATION THE BACKGROUND OF THE CASE AND THE TOTALITY OF THE FACTS, I HOLD THAT THE APPELLANT HAS NO MATERIAL TO SUBSTANTIATE ITS CLAIM AND THAT THE ADDITIONS M ADE BY THE AO ON ACCOUNT OF UNSECURED LOANS, SUNDRY CREDITOR S AND VARIOUS EXPENSES DEBITED IN THE PROFIT AND LOSS ACCOUNT ARE JUSTIFIED. NO INTERFERENCE IN THE ASSESSMENT OR DER IS CLLED FOR. 2. THE ASSESSEE MOVED ONE MORE APPEAL ON 11.1 1.2009 AGAINST THIS ORDER BEFORE THE CIT(APPEALS)-XVIII, NEW DELHI. IT APPEARS THAT THE LD. CIT(APPEALS) WAS NOT MADE AWARE THAT THE APPEAL AGAINST THIS ORDER HAD ITA NO. 1524(DEL)/2011 3 EARLIER BEEN FILED WHICH HAD BEEN DISMISSED BY THE CIT(APPEALS)-VIII, NEW DELHI. HOWEVER, HE ALSO DISMISSED THE APPEAL IN LIMINE BY MENTIONING THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THA T THE NOTICE OF DEMAND WAS SERVED AFTER MORE THAN 10 YEARS. THUS, THE DEL AY IN FILING THE APPEAL WAS NOT CONDONED. FOR THE SAKE OF READY REFERENCE, PARAGRAPH NO. 4 OF THIS ORDER IS REPRODUCED BELOW:- 4. FURTHER, I FIND THAT ALTHOUGH THE ASSESSMENT ORDER AND THE DEMAND NOTICE ARE DATED 31.03.1999, THE PRESE NT APPEAL AS PER RECORD HAS BEEN FILED WITH THE LD. CIT(A)-XV I, NEW DELHI (FROM WHOM IT HAS BEEN RECEIVED ON TRANSFER BY THIS OFFICE VIDE CCIT, DELHIS ORDER F. NO. ADDL. CIT/COORD/JURIS/APPEALS/09-10/9715 DATED 06.11.2009 ) ONLY ON 15.04.2009 WHICH IS MORE THAN 10 YEARS AFTER PASSING THE ASSESSMENT ORDER. IN THE APPEAL MEMO IN FORM NO. 35, THE DATE OF SERVICE OF THE DEMAND NOTICE IS MENTIONED 20.03.2009. HOWEVER, NO PROOF SERVICE AFTER SUCH LONG PERIOD OF TIME IS FILED WITH THE APPEAL MEMO. THE CERTIFIED TRUE COPY OF DEMAND NOTICE FILED WITH APPEAL MEMO ALSO DOES N OT BEAR ANY DATE OF ISSUE OF SUCH CERTIFIED COPY BY TH E AUTHORITY. AS PER THE PROVISIONS OF SECTION 249 OF THE AC T, THE APPEAL IS REQUIRED TO BE FILED WITHIN 30 DAYS OF THE SERVICE OF DEMAND NOTICE. IN THIS CASE, THE APPELLANT HAS N OT FURNISHED ANY PROOF TO SUBSTANTIATE DELAYED SERVICE OF THE DEMAND NOTICE BY MORE THAN 10 YEARS. AS SUCH THE APPEAL IS OU T OF TIME. FURTHER AS PER RECORD NO APPLICATION HAS BEEN M ADE BY THE APPELLANT FOR CONDONATION OF DELAY AS PER PROVISO TO SECTION 249 OF THE ACT. 3. WHEN THESE FACTS WERE BROUGHT TO THE NOTICE O F THE LD. COUNSEL FOR THE ASSESSEE, HE FAIRLY SUBMITTED THAT THE SECO ND APPEAL COULD NOT HAVE BEEN FILED AGAINST THE SAME ORDER WHEN THE FIRST APPEAL HAD ALREADY BEEN ITA NO. 1524(DEL)/2011 4 DISMISSED BY THE LD. CIT(APPEALS). ON THE OTHER HAND, THE LD. CIT, DR SUBMITTED THAT THE FIRST APPEAL AGAINST THE AS SESSMENT ORDER HAD BEEN DECIDED AND, THEREFORE, THE SECOND APPEAL FILED B ELATEDLY BEFORE THE LD. CIT(APPEALS) IS NON-EST. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE APPEALS FILED BEFORE THE COMMISSIO NERS (APPEALS) ARE IN RESPECT OF THE SAME ORDER AND SUBJECT MATTER OF T HE APPEALS IS ALSO THE SAME. AS THE EARLIER APPEAL HAD BEEN DECIDED, T HE ASSESSEE CANNOT AGITATE THE SAME MATTER AGAIN BEFORE THE SAME APPELLATE AUTHORITY. ACCORDINGLY, WE AGREE WITH THE LD. CIT, DR THAT THE APPEAL BEFORE US IN NON-EST. 5. IN THE RESULT, THE APPEAL IS DISMISSED. SD/- SD/- (RAJ PAL YADAV) (K.G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA : COPY OF THE ORDER FORWARDED TO:- ONKARA AGRO INDUSTRIES LTD., NEW DELHI. ACIT, CO. CIRCLE 2(5), NEW DELHI. CIT(A) CIT, ITA NO. 1524(DEL)/2011 5 THE D.R., ITAT, NEW DELHI. ASSISTANT REGISTRAR.