DALJIT SINGH SAINI, MUMBAI V. ITO 17(1)(3), MUMBAI

ITA 1583/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100570 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-03-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SRIVASTAVA
• Assessee Lawyers: SANJUKTA CHOW DHURY
• Keywords: Depreciation; Condonation of delay
• Section: 263; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' D ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA , ACCOUNTANT MEMBER ITA NO. 1583 /MUM/201 2 (ASSESSMENT YEAR: 2005 - 06 ) SHRI DALJIT SINGH SAINI VS. INCOME TAX OFFICER - 17(1)(3) 20, WADI BUNDER ROAD RESHAMSINGH GARAGE COMPOUND BPT COLONY, MUMBAI 400010 MUMBAI PAN - AJPPS7711J APPELLANT RESPONDENT APPELLANT BY: SMT . SANJUKTA CHOWDHURY RESPONDENT BY: SHRI A.K. SRIVASTAVA DATE OF HEARING: 15 .07.2015 DATE OF PRONOUNCEMENT: 07 .0 8 .2015 O R D E R PER SANJAY ARORA, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE REVISIONAL AUTHORITY UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 AND IT PERTAINS TO A.Y. 2005 - 06 . 2. AT THE OUTSET IT MAY BE NOTED THAT THERE IS SUBSTANTIAL DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE REGISTRY HAS NOTED THAT THE APPEAL IS BARRED BY LIMITATION BY 641 DAYS. ASSESSEE FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY IN FILING T HE APPEAL WHEREIN IT WAS STATED THAT HE WAS ENGAGED IN THE BUSINESS OF TRANSPORT. WHEN THE ORDER WAS PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT, THOUGH IT WAS RECEIVED BY HIS STAFF ON 05.04.2010 THEY MERELY KEPT THE SAME IN HIS D RAWER WITHOUT INFORMING HIM. AT THE RELEVANT POINT OF TIME ASSESSEE WAS OUT OF STATION FOR A WEEK. THEY HAVE ALSO NOT INFORMED THE CHARTERED ACCOUNTANT. IT WAS ALSO SUBMITTED THAT IT WAS HUMAN ERROR AND SOON UPON COMING TO KNOW ABOUT THE ORDER ITA NO. 1583/MUM/2012 (A.Y. 2005 - 06) SHRI DALJIT SINGH SAINI VS. ITO 2 PASSED BY TH E CIT ASSESSEE FORWARDED THE SAME TO THE CHARTERED ACCOUNTANT WHO IN TURN ADVISED HIM NOT TO FILE APPEAL. IN THE MEANTIME ASSESSEE RECEIVED A NOTICE UNDER SECTION 143(2) OF THE ACT FROM THE AO AND THEREAFTER ASSESSMENT WAS MADE UNDER SECTION 143(3) R.W.S. 263 OF THE ACT AGAINST WHICH THE ASSESSEE PREFERRED AN APPEAL. IN THE MEANTIME THE BUSINESS OF THE ASSESSEE WAS CLOSED , AND ON 01.03.2012 ASSESSEE CONTACTED ANOTHER CONSULTANT WHO ADVISED HIM TO FILE AN APPEAL AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT. ACCORDINGLY THE ASSESSEE HAS TAKEN IMMEDIATE STEPS TO FILE AN APPEAL WHICH RESULTED IN A DELAY OF 641 DAYS. IT WAS SUBMITTED THAT THERE WAS NO DELIBERATE ATTEMPT TO SIT IDLE WITHOUT PREFERRING AN APPEAL. SMT. SANJUKTA CHOWDHURY, ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE AND SUBMITTED THAT THERE IS SUFFICIEDNT CAUSE FOR D ELAY IN FILING THE APPEAL AND, THEREFORE, IT DESERVES TO BE CONDONED AND EVEN ON MERITS ASSESSEE HAS A STRONG PRIMA FACIE CASE AND THUS IN THE INTEREST OF SUBSTANTIAL JUSTICE THE APPEAL DESERVES TO BE ADMITTED, INSTEAD OF GOING BY THE TECHNICAL LAPS ES . 3. ON THE OTHER HAND, THE LEARNED D.R. SUBMITTED THAT SHRI. S.K. MISHRA, CHARTERED ACCOUNTNAT APPEARED IN 263 PROCEEDINGS BU T THE ASSESSEE DID NOT PREFER TO FILE AN AFFIDAVIT/LETTER OF THE CHARTERED ACCOUNTNAT IN SUPPORT OF HIS CLAIM THAT CA GAVE A WRONG LEG AL OPINION TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE NOWHERE MENTIONED AS TO WHO IS THE NEW CHARTERED ACCOUNTANT/CONSULTANT WHO HAS ADVISED HIM TO FILE AN APPEAL AND THE DATE OF SUCH ADVICE WAS ALSO NOT MENTIONED EXCEPT VAGUELY MENTIONING THAT HE APPROACHED ANOTHER CONSULTANT ON 01.03.2012. LAST DATE FOR FILING APPEAL WAS 04.06.2010 , BUT THE ASSESSEE DID NOT PREFER AN APPEAL BUT PURSUED ALTERNATE REMEDY BY EXPLAINI NG THE REASONS WITH REGARD TO CORRECTNESS OF THE CLAIM A DEPRECIATION, ETC. BEFORE THE AO AND THE ASSESSMENT CAME TO BE MADE ON 24.12.2010 AND , THEREAFTER , AN APPEAL WAS FILED ON 02.02.2011. IT CAN THUS BE SEEN THAT THERE IS SUBSTANTIAL DELAY IN FILING THE APPEAL AND THE ASSESSEE PURPOSELY DID NOT FILE AN APPEAL , GOING BY THE ALLEGED ADVICE OF THE COUNSUL TO PURSUE ALTERNATE REMEDY OF EXPLAING BEFORE THE AO , AND THUS HE CANNOT BE PERMITTED TO FILE AN APPEAL AGAINST THE ORDER UNDER SECTION 263 OF THE ACT AT A LATER STAGE . HE THUS STRONGLY OBJECTED TO THE CONDONATION OF ITA NO. 1583/MUM/2012 (A.Y. 2005 - 06) SHRI DALJIT SINGH SAINI VS. ITO 3 DELAY AND SUBMITTED THAT EVEN ON MERITS THE ASSESSEE CANNOT BE SAID TO HAVE A STRONG PRIMA FACIE CASE AND THUS EVEN APPLYING THE RATIO LAID DOWN BY THE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI 1 67 ITR 471 THE A PPEAL DESERVES TO BE DISMISSED AS BARRED BY LIMITATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE RECORD. THE LEARNED CIT SET ASIDE THE MATTER TO RE FRAME THE ASSESSMENT AFTER PROPERLY EXAMINING THE ISSUES AND EVEN AT THAT STAGE THE ASSESSEE COULD NOT FURNISH THE RELEVANT MATERIAL AND THEREFORE CERTAIN ADDITIONS WERE MADE WHICH INDICATES THAT THE ASSESSEE DOES NOT HAVE A STRONG PRIMA FACIE CASE ON MERI TS. AT ANY RATE, THE ASSESSEE HAS NOT FURNISHED THE NAME OF THE COUNSEL OR A LETTER OF THE COUNSEL TO INDICATE THAT THE ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT THERE IS NO NEED TO FILE AN APPEAL AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT . IN FACT , THERE IS NOTHING ON RECORD TO SUGGEST AS TO WHO WAS THE COUNSEL WHO SUGGESTED ASSESSEE TO FILE APPEAL ON 01.03.2012. THUS THE EXPLANATION OF THE ASSESSEE IS VERY VAGUE, WITHOUT ANY EVIDENCE ON RECORD TO SUBSTANTIATE THE SAME. IN THE CASE OF STAT E OF ANDHRA PRADESH VS. VENKATARAMANA CH UDUVA & MURAMURA MERCHANT & ANR. 159 ITR 59 THE HON'BLE ANDHRA PRADESH HIGH COURT HAD AN OCCASION TO CONSIDER AN ISSUE INVOLVING DELAY IN FILING APPEAL WHEREIN THE ASSESSEE OPTED NOT TO FILE AN APPEAL AGAINST THE ORD ER OF THE AO ON THE GROUND THAT THE ISSUE IS COVERED BY THE JURISDICTIONAL HIGH COURT , BUT THE SAID DECISION HAVING BEEN REVERSED BY THE HON'BLE SUPREME COURT THE ASSESSEE PREFERRED AN APPEAL BY STATING THAT AT THE INITIAL STAGE HE WAS UNDER THE BONAFIDE I MPRESSION THAT THE ISSUE STANDS COVERED AGAINST THE REVENUE. IN THIS REGARD THE COURT OBSERVED THAT THE ASSESSEE HAVING CONSCIOUSLY CHOSE NOT TO FILE AN APPEAL, THE DELAY CANNOT BE CONDONED. IN THIS CASE ALSO THE ASSESSEE CHOSE N NOT TO FILE AN APPEAL EITHE R ON ACCOUNT OF THE ALLEGED ADVICE OF THE EARLIER CHARTERED ACCOUNTANT OR OTHERWISE AND IN FACT PURSUED ALTERNATE REMEDY BY FILING AN APPEAL AGAINST THE ORDER PASSED UNDER SECTION 143(3) R.W.S. 263 OF THE ACT. THUS, FILING AN APPEAL , AGAINST THE ORDER PASS ED UNDER SECTION 263 , AFTER SUBSTANTIAL DELAY , CANNOT NOW BE CONDONED SINCE THERE IS NO SUFFICIENT CAUSE FOR FILING THE APPEAL BELATEDLY. IN THE CASE OF LANKA VENKATESWARLU VS. STATE OF ANDHRA PRADESH (AIR 20 11 ITA NO. 1583/MUM/2012 (A.Y. 2005 - 06) SHRI DALJIT SINGH SAINI VS. ITO 4 SC 1199) THE HON'BLE SUPREME COURT CONSIDERED THE CONCEPT OF LIBERAL APPROACH ADOPTED VIS - A - VIS SECTION 5 OF LIMITATION ACT AND IN THIS REGARD IT OBSERVED AS UNDER: - 26 .... THE CONCEPTS SUCH AS LIBERAL APPROACH, JUSTICE ORIENTED APPROACH, SUBSTANTIAL JUSTICE CANNOT BE EMPLOYED TO JETTISON THE SUBSTANTIAL LAW OF LIMITATION. ESPECIALLY, IN CASES WHERE THE COURT CONCLUDES THAT THERE IS NO JUSTIFICATION FOR DELAY. IN THE AFORECITED DECISION THE COURT WAS CONCERNED WITH THE PETITION SEEKING CONDONATION OF DELAY OF 883 DAYS IN FILING THE PETITI ON SEEKING TO SET ASIDE THE DISMISSAL ORDER DATED 06.02.1998. THOUGH THERE WAS A DIRECTION FROM THE COURT TO COMPLY WITH THE REQUISITIONS OF THE OFFICE SUCH AS BRINGING THE LEGAL REPRESENTATIVE ON RECORD, ETC. THE SAME WAS NOT DONE WITHIN THE STIPULATED TI ME RESULTING IN SUBSTANTIAL DELAY AND WHILE CONSIDERING THE ISSUE THE HON'BLE SUPREME COURT OBSERVED THAT SUBSTANTIAL JUSTICE APPROACH CANNOT BE EMPLOYED TO JETTISON THE SUBSTANTIAL LAW OF LIMITATION. 5. REVERTING TO THE FACTS ON HAND IT MAY BE NOTICED THAT THE ORDER WAS PASSED BY THE LEARNED CIT ON 17.03.2010 AND THEREAFTER THE ASSESSEE APPEARED BEFORE THE AO FROM TIME TO TIME AND UPON COMPLETION OF THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 263 OF THE AC T AN APPEAL WAS PREFERRED ON 02.02.2011, WHICH CLEARLY SHOWS THAT THE ASSESSEE DID NOT CHOOSE TO FILE AN APPEAL AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT. IF THE COUNSEL IS RESPONSIBLE FOR GIVING SUCH WRONG ADVICE THE ASSESSEE COULD HAVE TAKEN ACTION AGAINST SUCH COUNSEL OR AT LEAST COULD HAVE BROUGHT TO THE NOTICE OF THE TRIBUNAL THE NAME OF THE COUNSEL SO THAT IT COULD HAVE BEEN CROSS VERIFIED BUT NO SUCH MATERIAL WAS PLACED ON RECORD. UNDER THESE CIRCUMSTANC ES WE ARE UNABLE TO ACCEPT THE BALD PLEA OF THE ASSESSEE THAT THE APPEAL COULD NOT BE FILED IN TIME BECAUSE OF THE WRONG ADVICE OF THE COUNSEL/CONSULTANT. WE, THEREFORE, DISMISS THE APPEAL AS UNADMITTED, BEING BARRED BY LIMITATION. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH AUGUST , 201 5 . SD/ - SD/ - D. MANMOHAN SANJAY ARORA ( VICE PRESIDENT ) ( ACCOUNTANT MEMBER ) MUMBAI, DATED: 0 7 TH AUGUST , 2015 ITA NO. 1583/MUM/2012 (A.Y. 2005 - 06) SHRI DALJIT SINGH SAINI VS. ITO 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 1 7 , MUMBAI 4. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI