M/s RR Constructions, Vijayawada V. THE DCIT, Vijayawada

ITA 153/VIZ/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8733 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P S MURTHY
• Keywords: Revision of order; Opportunity of being heard; Bonafide belief; Condonation of delay; Bonafide mistake
• Section: 143(3); 263

Judgement Text

ITA NO.153/VIZAG/2015 M/S. R.R. CONSTRUCTIONS, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . .. . . . . . ' , % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./I.T.A.NO.153/VIZAG/2015 ( / ASSESSMENT YEAR: 2009-10) M/S. R.R. CONSTRUCTIONS, VIJAYAWADA DCIT, CIRCLE - 2(1), VIJAYAWADA [PAN NO. AADFR5608L ] ( ' / APPELLANT) ( ()' / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI P.S. MURTHY, DR / DATE OF HEARING : 20.02.2018 / DATE OF PRONOUNCEMENT : 2 8.02.2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF THE COMMISSIONER OF INCOME TAX {CIT}, VIJAYAWADA DATED 26.3.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ORD ER OF THE CIT PASSED U/S 263 OF THE ACT. THERE WAS A DELAY OF 33 4 DAYS IN FILING THE ITA NO.153/VIZAG/2015 M/S. R.R. CONSTRUCTIONS, VIJAYAWADA 2 APPEAL OF THE ASSESSEE. THE ASSESSEE SUBMITTED PET ITION FOR CONDONATION OF DELAY AS UNDER: 1. ASSESSMENT IN THE CASE OF THE PETITIONER FOR THE A. Y 2009-10 WAS COMPLETED U/S 143(3) ON 29.11.2011 WHEREIN THE INCOME OF THE PETITIONER WAS DETERMINED AT RS 41,35,830/- AS AGAINST THE RETURNED INCOME OF RS 34,39,519/-. THE ABOVE ORDER WAS SET ASIDE BY THE LEARNED COMMISSIONER OF INCOME TAX, VI JAYAWADA U/S 263 OF THE ACT VIDE ORDER DT 26.03.2014. THE PE TITIONER RECEIVED THE ORDER ON 02.04.2014. APPEAL AGAINST TH IS ORDER OUGHT TO HAVE BEEN FILED BY THE PETITIONER ON OR BE FORE 31-05- 2014. HOWEVER, THE APPEAL COULD BE FILED ONLY ON 01 .05.2015 AND THEREFORE THERE WAS A DELAY OF 334 DAYS IN FILI NG THE APPEAL. 2. IN THE ABOVE MENTIONED ORDER, THE LEARNED COMMISSIO NER OF INCOME TAX DIRECTED THAT THE ASSESSMENT ORDER WOULD HE MODIFIED AFTER GIVING AN OPPORTUNITY OF BEING HEARD . NO DEMAND WAS RAISED VIDE THIS ORDER. FURTHER, THERE WAS NO I NSTRUCTION ANYWHERE ALONG WITH THE ORDER U/S 263 THAT AN APPEA L LIES AGAINST THIS ORDER BEFORE THE HON'BLE ITAT. 3. THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 263 OF THE ACT ON 10TH MARCH, 2015, AND THE INCOME ASSESSED AT RS 1,03,60,676/- WAS MUCH HIGHER THAN THE INCOME ASSES SED IN THE ORIGINAL 143(3) ORDER DT 29.11.2011. THE ASSESS ING OFFICER ISSUED A DEMAND NOTICE, WHEREIN IT WAS MENTIONED TH AT IF THE APPELLANT INTENDS TO APPEAL AGAINST THE ASSESSMENT IT MAY PREFER AN APPEAL TO THE COMMISSIONER OF INCOME TAX( APPEA!S), VIJAYAWADA WITHIN 30 DAYS OF THE RECEIPT OF DEMAND NOTICE. 4. AS PER THE INSTRUCTION IN THE DEMAND NOTICE, THE AP PELLANT STARTED PREPARATIONS FOR FILING APPEAL AGAINST THE ORDER U/ S 143(3) R.W.S. 263 OF THE ACT AND IN THIS REGARD CONSULTED AN EXPE RIENCED TAX CONSULTANT SRI G.V N. HAN AT VISAKHAPATNAM ON THE A DVICE OF ITS LOCAL CONSULTANT. DURING THE COURSE OF SUCH DISCUSS ION ON 2ND APRIL, 2015, THE APPELLANT WAS ADVISED THAT THE PROPER COU RSE OF ACTION WOULD BE TO PREFER AN APPEAL BEFORE THE HON'BLE INC OME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM AGAINST THE ORDER DT. 26TH MARCH, 2014 OF THE COMMISSIONER OF INCOME TAX, VIJAYAWADA U/S 263 OF THE ACT. AS A MATTER OF ABUNDANT PRECAUTION, THE AP PELLANT WAS ADVISED TO FILE AN APPEAL EVEN AGAINST THE ASSESSME NT ORDER DT 10TH MARCH, 2015 PASSED U/S 143(3) R.W.S. 263 OF THE ACT . 5. WITHOUT FURTHER LOSS OF TIME, THE APPELLANT TOOK NE CESSARY STEPS AND COULD FILE THE APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM ON 1ST MAY, 2015 AFTER A DELAY ITA NO.153/VIZAG/2015 M/S. R.R. CONSTRUCTIONS, VIJAYAWADA 3 OF 334 DAYS AND AN APPEAL AGAINST THE ORDER PASSED U/S 143(3) R.W.S. 263 OF THE ACT BEFORE THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS), VIJAYAWADA WAS FILED SIMULTANEOUSLY. 3. DURING THE APPEAL HEARING, THE LD. A.R. ARGUED T HAT THE ASSESSEE WAS NOT AWARE OF THE FACT THAT THE ASSESSEE REQUIRE D TO FILE THE APPEAL AGAINST THE ORDER PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT'). THE ASSESSEE WA S UNDER THE IMPRESSION THAT THE ONLY CONSEQUENTIAL ORDER PASSED BY THE AO GIVING EFFECT TO THE REVISIONAL ORDER U/S 263 OF THE ACT IS AN APPEALABL E ORDER BUT NOT THE ORDER U/S 263. ONLY WHEN THE ASSESSEE HAD RECEIVED THE CONSEQUENTIAL ORDER, HE HAD APPROACHED THE TAX CONSULTANT WHO HAS ADVISED HIM TO FILE AN APPEAL AGAINST ORDER PASSED U/S 263 OF THE ACT W ITH A PRAYER FOR CONDONATION OF DELAY. THE LD. A.R. ARGUED THAT THE ASSESSEE WAS UNDER THE BONAFIDE BELIEF WITH REGARD TO THE APPEAL PROCE DURE FOR FILING APPEAL AGAINST ORDER PASSED U/S 263 OF THE ACT. SINCE IT WAS A BONAFIDE MISTAKE, THE LD. A.R. REQUESTED TO CONDONE THE DELA Y. 4. ON THE OTHER HAND, THE LD. D.R. ARGUED THAT THE EXPLANATION OFFERED BY THE ASSESSEE IS GENERAL IN NATURE WHICH DOES NOT REQUIRE CONSIDERATION OF THE ITAT. THE LD. D.R. FURTHER SU BMITTED THAT THERE WAS A LONG DELAY IN FILING APPEAL AND THE ASSESSEE FAILED TO OFFER PROPER EXPLANATION FOR DELAY IN FILING APPEAL DAY WISE. T HEREFORE, ARGUED THAT THERE IS NO REASON FOR CONDONING THE DELAY. ITA NO.153/VIZAG/2015 M/S. R.R. CONSTRUCTIONS, VIJAYAWADA 4 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THERE WAS A DELAY OF 334 DAYS IN FILING APPEAL BY THE ASS ESSEE. THE REASON ASSIGNED BY THE ASSESSEE FOR DELAY IN FILING THE AP PEAL WAS IGNORANCE WITH REGARD TO FILING OF APPEAL. THE ASSESSEES CA SE IS AUDITABLE CASE U/S 44AB OF THE ACT AND THE ASSESSEES CASE WAS REPRESE NTED BY CHARTERED ACCOUNTANT BEFORE THE CIT AND DURING THE ASSESSMENT PROCEEDINGS ALSO, THE ASSESSEES A.R. HAD APPEARED BEFORE THE A.O. TH EREFORE, IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE ASSESSEE IS SUPP ORTED BY THE ASSISTANCE OF CHARTERED ACCOUNTANTS AND PLEADING IG NORANCE WITH REGARD TO THE FILING OF APPEAL AGAINST THE ORDER PASSED U/ S 263 OF THE ACT APPEARS TO BE NOT BONAFIDE. SIMILARLY, THE EXPLANA TION OFFERED BY THE ASSESSEE APPEARS TO BE GENERAL IN NATURE AND WE DO NOT FIND ANY REASON TO CONDONE THE DELAY AND THE PETITION FOR CONDONATI ON OF DELAY IS REJECTED AND THE APPEAL IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 TH FEB18. SD/- SD/- ( . ) ( . .. . . . . . ' ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ITA NO.153/VIZAG/2015 M/S. R.R. CONSTRUCTIONS, VIJAYAWADA 5 # /VISAKHAPATNAM: ' /DATED : 28.02.2018 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT M/S. R.R. CONSTRUCTIONS, PLOT NO .63, ROAD NO.4, KANAKADURGA OFFICERS COLONY, RING ROAD, VIJAYAWADA 2. / THE RESPONDENT THE DCIT, CIRCLE-2(1), VIJAYAWA DA 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM SL. NO. DESCRIPTION DATE INITIALS 1. DATE OF DICTATION BY THE AUTHOR 21.02.2018 SR.P S 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 22.02.2 018 SR.PS 3. DRAFT PLACED BEFORE THE SECOND MEMBER SR. PS 4. DRAFT APPROVED BY THE SECOND MEMBER SR. PS 5. DATE OF APPROVED ORDER COMES TO THE SR. PS SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER SR. PS 7. DATE OF FILE SENT TO THE BENCH CLERK SR. PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK HD. C LK 9. DATE OF DISPATCH OF ORDER SR. PS