Oriental Bank of Commerce, New Delhi V. DCIT, New Delhi

ITA 1542/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4285 (ITAT-DELHI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 06-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H L DIHANA
• Section: 64; 263; 63

Judgement Text

ITA NO. 1542/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1542/DEL/2010 A.Y. : 2004-05 ORIENTAL BANK OF COMMERCE, F-14, 4 TH FLOOR, COMPETENT HOUSE, CONNAUGHT PLACE, NEW DELHI 110 001 (PAN/GIR NO. : AAACO0191MJ 2734R) VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 13(1), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. K.V.S.R. KRISHNA, CA DEPARTMENT BY : SH. H.L. DI H ANA, C.I.T. (D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 16.3.2007 PASSED U/S 263 OF THE IT ACT BY THE LD. COMMISSIONER OF INCOME TAX, DELHI-V, NEW DELHI. 2. AT THE THRESHOLD, IT IS NOTICED THAT THERE IS D ELAY OF 1049 DAYS IN FILING THE APPEAL. THE ASSESSEE IN THIS REGARD HA S FILED A CONDONATION PETITION WHICH INTER-ALIA READS AS UNDER:- THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 DATE D 16.3.2007 PASSED BY THE C.I.T. WAS RECEIVED BY THE ASSESSEE O N 26.3.2007. THE APPELLANT BEING FILED NOW IS LATE BY 2 YEARS A ND 11 MONTHS. ITA NO. 1542/DEL/2010 2 THE APPELLANT WAS UNDER THE BONAFIDE IMPRESSION THAT SINCE C.I.T. HAS GIVEN ONLY DIRECTION TO DISALLOWANCE THE LOSSES ARISING OUT OF TRANSFER OF US 64 UNITS BY UTI, APPEAL WAS FILED AG AINST THE ORDER U/S 143(3)263. HOWEVER, ITAT IN ITAT NO. 586/DEL/2008 VIDE ORDER D ATED 13.11.2009 RECEIVED BY ASSESSEE ON 21.12.2009 DIS MISSED THE APPEAL OF THE ASSESSEE UPHOLDING THE ORDER OF THE C .I.T.(A) ON AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF T HE ASSESSING OFFICER U/S 143(3)/263 ON THE GROUND THAT THE EXEC UTIVE AUTHORITY CANNOT TRAVEL BEYOND THE ORDER WHILE EXECUTING THE ORDER. THEREFORE, ALL ALONG THE ASSESSEE BANK WAS UNDER TH E BONAFIDE IMPRESSION THAT THE APPEAL WOULD LIE AGAINST THE ORD ER IN WHICH THE ADDITION HAS BEEN MADE AND THE DEMAND RAISED. SINCE THE ITAT HAS REJECTED THE APPEAL OF THE ASSES SEE WITHOUT CONSIDERING THE MERITS, THE ASSESSEE BANK IS FILING THIS APPEAL AGAINST THE ORDER OF THE C.I.T. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT RECORDS ON THE ISSUE OF THE CONDONATION OF DELAY. WE FIND THAT ASSESSEE HAS NOT AGITATED THE ORDER OF THE C.I.T. P ASSED U/S 263, WHEN IT WAS RECEIVED BY THE ASSESSEE. ASSESSING OFFICER HAS PASSED AN ORDER PURSUANT TO ORDER UNDER SECTION 263 VIDE ORD ER DATED 31.8.2007 AND THE LD. COMMISSIONER OF INCOME TAX HAS PASSED AN ORDER IN THIS REGARD VIDE ORDER DATED 17.12.2007. THE MATTER H AD TRAVELLED TO THE ITA NO. 1542/DEL/2010 3 ITAT AND THE ITAT VIDE ORDER DATED 13.11.2009 AS D ISMISSED THE ASSESSEES APPEAL. THE ITAT INTER-ALIA HELD AS UND ER:- WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THE ORDER PASSED UNDER SECTION 2 63 BECOME FINAL. LD. COMMISSIONER WHILE EXERCISING THE POWE RS UNDER SECTION 263 HAS DECIDED THE ISSUE HIMSELF AND DIRE CTED THE ASSESSING OFFICER TO RE-COMPUTE THE INCOME ON THE BASIS OF HIS DECISION. HE HAS NOT RELEGATED THE ISSUE TO THE FI LE OF THE ASSESSING OFFICER FOR READJUDICATION. 3.1 THEREAFTER ON 8.4.2010 THE ASSESSEE FILED APPEA L AGAINST C.I.T. ORDER U/S 263 OF THE ACT. 3.2 THUS, WE FIND THAT THE TRIBUNAL ORDER IS BASED UPON THE PREMISE THAT THE ORDER U/S 263 HAS BECOME FINAL. ASSESSEE HAS NOT POINTED OUT TO THE TRIBUNAL THAT IT WAS CHALLENGING THE ORDER U /S 263. IT ACTUALLY FILED THE APPEAL MUCH LATER. FROM THE ABOVE FACTUAL BACKGROUND IT IS APPARENT THAT ASSESSEE HAD ACCEPTED THE C.I.T.S OR DER U/S 263. LATER ON AFTER A DELAY OF 1049 DAYS IT CHANGED ITS MIND AN D FILED AN APPEAL. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, T HE DELAY IN THIS CASE IS NOT LIABLE TO BE CONDONED, AS REASONABLE C AUSE ATTRIBUTED FOR THE DELAY, IN OUR CONSIDERED OPINION, IS NOT COGENT ENOUGH. ITA NO. 1542/DEL/2010 4 4. IN THE BACKGROUND OF THE AFORESAID DISCUSSION, W E FIND THAT DELAY OF 1049 DAYS IS NOT LIABLE TO BE CONDONED AND HENCE , THIS APPEAL IS DISMISSED AS TIME BARRED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/04/2011. SD/- SD/- [R.P TOLANI] [R.P TOLANI] [R.P TOLANI] [R.P TOLANI] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 08/04/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES