FIVE VISION, MUMBAI V. ACIT -33(1), MUMBAI

ITA 1603/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2430 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C W ANGOLKAR
• Keywords: Condonation of delay
• Section: 143(3); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.1603/M/2015 ASSESSMENT YEAR: 2009-10 M/S. FIVE VISION, D-201, VASANT SMRUTI, THAKUR COMPLEX, KANDIVALI (EAST) MUMBAI 400 101 PAN: AABFF 8876C VS. ACIT-33(1), [ERSTWHILE ACIT 25(3)], IT OFFICES, 308, 3 RD FLOOR, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, MUMBAI - 400050 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI C.W. ANGOLKAR, D.R. DATE OF HEARING : 18.07.2016 DATE OF PRONOUNCEMENT : 22.07.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 24.12.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2009-10. 2. THE ASSESSEE THROUGH ITS GROUNDS OF APPEAL HAS A GITATED THE ACTION OF THE LD. CIT(A) IN DISMISSING ITS APPEAL BY HOLDING THAT THE SAME WAS BARRED BY LIMITATION. 3. NONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE DESPITE NOTICE BEING SENT. 4. WE HAVE GONE THROUGH THE GROUNDS OF APPEAL AND A RE OF THE VIEW THAT THE APPEAL CAN BE DISPOSED OF AFTER HEARING THE LD. D.R . ITA NO.1603/M/2015 MRS. ANUJA K. PARIKH 2 5. THE PRESENT APPEAL BEFORE US IS TIME BARRED BY 3 61 DAYS. NO APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED BY THE ASSE SSEE ALONG WITH THE APPEAL. A DEFECT NOTICE WAS ALSO ISSUED BY THE REGISTRY ON 18.03.15 WHEREIN IT WAS MENTIONED THAT THE APPEAL WAS BARRED BY 361 DAYS AN D THAT THE ASSESSEE HAD NOT FILED ANY CONDONATION PETITION/AFFIDAVIT IN THIS RE SPECT BUT TILL DATE NO REMEDIAL ACTION HAS BEEN TAKEN BY THE ASSESSEE. 6. AFTER GOING THROUGH THE IMPUGNED ORDER, WE FIND THAT THE APPEAL BEFORE THE LD. CIT(A) WAS ALSO FILED WITH A DELAY OF SEVEN MONTHS. WE HAVE ALSO NOTED THE REASONS ASSIGNED BY THE ASSESSEE. IT HAS BEEN MENTIONED BY THE ASSESSEE THAT THE IMPUGNED ADDITIONS WERE MADE ON T HE BASIS OF UNEXPLAINED/ NON GENUINE PURCHASES. IT WAS SUBMITTED BY THE ASS ESSEE BEFORE THE LD. CIT(A) THAT AS ADVISED BY THEIR CHARTERED ACCOUNTAN T/AUTHORIZED REPRESENTATIVE, THE ASSESSEE DID NOT FILE ANY APPEA L AGAINST THE SAID ORDER OF THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE A O). IT HAS ALSO BEEN PLEADED THAT THE ASSESSEE WAS ADVISED BY THEIR AUTHORIZED R EPRESENTATIVE THAT IF THE ASSESSEE WOULD COOPERATE IN THE ASSESSMENT PROCEEDI NGS, NO PENALTY WOULD BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT. HOWEVER , WHEN THE ASSESSEE RECEIVED PENALTY ORDER UNDER SECTION 271(1)(C) OF T HE ACT THEN THE ASSESSEE CONSULTED SOME OTHER SENIOR COUNSEL WHO ADVISED THE ASSESSEE TO FILE APPEAL BOTH AGAINST THE QUANTUM ORDER AND PENALTY ORDER. THE ASSESSEE HAD ALSO PLACED BEFORE THE LD. CIT(A) AN AFFIDAVIT DATED 18. 08.12 OF ITS AUTHORIZED REPRESENTATIVE WHEREIN SAID REPRESENTATIVE/CHARTERE D ACCOUNTANT DEPOSED THAT HE HAD ADVISED THE ASSESSEE NOT TO FILE THE APPEAL AGAINST THE QUANTUM ADDITIONS BECAUSE HE WAS OF THE OPINION THAT PENALTY UNDER SE CTION 271(1)(C) WOULD NOT BE ATTRACTED IF THE ASSESSEE WOULD COOPERATE WITH T HE DEPARTMENT IN THE ASSESSMENT PROCEEDINGS AND WOULD NOT FILE APPEAL AG AINST THE QUANTUM ADDITIONS. IT HAD BEEN FURTHER DEPOSED IN THE SAID CHARTERED ACCOUNTANTS AFFIDAVIT THAT HE, EVEN DID NOT ADVICE THE ASSESSEE TO FILE THE APPEAL AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3) OF THE ACT WHEN THE NOTICE ITA NO.1603/M/2015 MRS. ANUJA K. PARIKH 3 INITIATING THE PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) WAS ALSO SERVED ON THE ASSESSEE ALONG WITH THE ORDER UNDER SECTION 143 (3) OF THE ACT. THE SAID CHARTERED ACCOUNTANT HAS FURTHER AFFIRMED THAT THE ASSESSEE, THUS, HAD NOT FILED THE APPEAL IN THE ABSENCE OF HIS ADVICE TO DO SO. HENCE, THE DELAY IN FILING THE APPEAL WAS NOT ATTRIBUTABLE TO THE ASSESSEE BUT SOL ELY ATTRIBUTABLE TO ABSENCE OF SUCH ADVICE FROM HIS SIDE. THE LD. CIT(A) CONSIDER ED THE ABOVE SUBMISSIONS FOUND THAT THE ASSESSEE DID NOT HAVE ANY SUFFICIENT CAUSE WHICH PREVENTED IT FROM FILING THE APPEAL IN TIME. MOREOVER, THE ASSES SEE WAS NOT AGGRIEVED BY THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT BY THE AO RATHER THE ASSESSEE WAS AGGRIEVED FROM THE LEVY OF PENALTY AND THUS THE ASS ESSEE DID NOT FILE THE APPEAL AGAINST THE QUANTUM ORDER. HOWEVER, WHEN THE PENAL TY WAS LEVIED, THE ASSESSEE FILED THE APPEAL AGAINST THE QUANTUM ADDIT ION ALSO WHICH WAS TIME BARRED. THE LD. CIT(A) THUS HELD THAT THE SAME CAN NOT BE CONSTRUED TO BE SUFFICIENT CAUSE FOR CONDONATION OF DELAY OF SEVEN MONTHS IN FILING THE APPEAL. HE THEREFORE DISMISSED THE APPEAL OF THE ASSESSEE B EING BARRED BY LIMITATION. AGGRIEVED BY THE SAID ORDER OF THE LD. CIT(A), THE ASSESSEE PREFERRED APPEAL BEFORE THIS TRIBUNAL. 7. THE PRESENT APPEAL OF THE ASSESSEE BEFORE THIS T RIBUNAL IS ALSO BARRED BY LIMITATION OF 361 DAYS. NO APPLICATION/AFFIDAVIT F OR CONDONATION OF DELAY HAS BEEN FILED NOR ANY REASONS HAVE BEEN EXPLAINED FOR THE DELAY IN FILING THE APPEAL. EVEN THE ASSESSEE HAS ALSO NOT RESPONDED TO THE DEFECT MEMO/RECTIFICATION NOTICE ISSUED BY THE REGISTRY ON 18.03.15. 8. THE ABOVE SEQUENCE OF EVENTS CLEARLY SHOWS THAT THE ASSESSEE WAS NEITHER SERIOUS IN PROSECUTING HIS APPEAL BEFORE TH E LD. CIT(A) NOR BEFORE THIS TRIBUNAL. EVEN THE REASONS CITED BY THE ASSESSEE B EFORE THE CIT(A) FOR CONDONATION OF DELAY DID NOT CONSTITUTE SUFFICIENT CAUSE JUSTIFYING THE CONDONATION OF THE DELAY PERIOD BY THE CIT(A). IN THE AFFIDAVIT THE CONCERNED CHARTERED ACCOUNTANT/ AUTHORIZED REPRESENTATIVE, IT HAS BEEN STATED THAT HE WAS GETTING FEELERS FROM THE AO THAT THE AO MAY WAIVE T HE PENALTY UNDER SECTION ITA NO.1603/M/2015 MRS. ANUJA K. PARIKH 4 271(1)(C) OF THE ACT IF THE ASSESSEE WOULD COOPERAT E IN THE ASSESSMENT PROCEEDINGS AND DID NOT CONTEST THE SAME IN APPEAL. IT HAS ALSO BEEN DEPOSED BY HIM THAT HE ADVISED THE ASSESSEE NOT TO CARRY TH E MATTER IN APPEAL UNDER THE BELIEF THAT IN DOING SO, THE PENALTY UNDER SECTION 271(1)(C) WOULD NOT BE ATTRACTED. HE EVEN DID NOT ADVISE THE ASSESSEE TO FILE THE APPEAL EVEN THOUGH THE NOTICE INITIATING THE PENALTY UNDER SECTION 271 (1)(C) WAS ALSO SERVED ON THE ASSESSEE ALONG WITH ORDER UNDER SECTION 143(3) OF T HE ACT. THE ABOVE CONTENTIONS OF THE SAID AUTHORIZED REPRESENTATIVE T HUS WERE SELF CONTRADICTORY. HIS BELIEF THAT PENALTY WOULD NOT BE LEVIED UNDER S ECTION 271(1)(C) WAS ALREADY GOT CLEARED/CONTROVERTED ON THE DATE OF RECEIPT OF THE NOTICE FOR INITIATING THE PENALTY; STILL, HE DID NOT ADVISE THE ASSESSEE TO F ILE THE APPEAL AGAINST THE ORDER PASSED BY THE AO PASSED UNDER SECTION 143(3) OF THE ACT. FROM THE PLEADINGS OF THE ASSESSEE IT CLEARLY REVEALS THAT IN FACT THE ASSESSEE WAS NOT AGGRIEVED BY THE QUANTUM ADDITIONS RATHER THE ASSESSEE WAS AGGRI EVED ON ACCOUNT OF LEVY OF PENALTY THAT IS WAY THE ASSESSEE HAD CHOSEN NOT TO FILE THE APPEAL AGAINST THE QUANTUM ADDITIONS. IF ON A SUBSEQUENT OCCASION SOM E SENIOR COUNSEL ADVISED THE ASSESSEE TO FILE THE APPEAL, THAT CANNOT BE A S UFFICIENT CAUSE FOR CONDONATION OF DELAY. WE ARE SURPRISED RATHER SHOCKED TO SEE T HAT THE CONCERNED CHARTERED ACCOUNTANT HAS DEPOSED IN THE AFFIDAVIT THAT HE WAS GETTING FEELERS FROM THE AO THAT THE AO WOULD NOT LEVY PENALTY IF THE ASSESS EE WOULD NOT CONTEST THE QUANTUM ADDITIONS AND THAT IT WAS HE WHO ADVISED TH E ASSESSEE NOT TO FILE THE APPEAL, EVEN, AFTER RECEIPT OF NOTICE REGARDING THE INITIATION OF PENALTY THE PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. HE ALSO DEPOSED BEFORE THE LD. CIT(A) IN HIS AFFIDAVIT THAT THE APPEAL WAS NOT FILED BECAUSE OF HIS ADVICE AND THAT THE DELAY MAY BE CONDONED. WE FEEL IT DIF FICULT TO DIGEST THAT SUCH AN ADVICE MAY BE GIVEN TO AN ASSESSEE BY A CHARTERED A CCOUNTANT AND THEN THAT CHARTERED ACCOUNTANT COULD AFFIRM THAT HE IN FACT H AS GIVEN SUCH A WRONG ADVICE TO THE ASSESSEE BY WAY OF DEPOSITION IN AN A FFIDAVIT. ITA NO.1603/M/2015 MRS. ANUJA K. PARIKH 5 9. WHATSOEVER MIGHT HAVE BEEN ADVICE OF THE CHARTER ED ACCOUNTANT OF THE ASSESSEE, FIRSTLY THE ASSESSEE IN FACT WAS NOT AGGR IEVED BY THE ORDER UNDER SECTION 143(3) BUT OF THE PENALTY ORDER UNDER SECTI ON 271(1)(C); SECONDLY THE ASSESSEE HAS NOT SHOWN SUFFICIENT CAUSE FOR CONDONA TION OF DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A), HENCE, THERE IS NO IN FIRMITY IN THE ORDER OF THE LD. CIT(A) IN REJECTING THE APPLICATION FOR CONDONA TION OF DELAY. 10. EVEN NO APPLICATION FOR CONDONATION OF DELAY HA S BEEN FILED BEFORE THIS TRIBUNAL. NO REASONS/CIRCUMSTANCES FOR FILING THE A PPEAL WITH A DELAY OF 361 DAYS HAS BEEN EXPLAINED BEFORE US. IT SEEMS THAT T HE ASSESSEE AGAIN FAILED TO TAKE ADVICE FROM HIS SENIOR COUNSEL EVEN AFTER DISM ISSAL OF HIS APPEAL FOR THE SAME REASON BY THE LD. CIT(A). HENCE, APPEAL BEFORE THIS TRIBUNAL IS BARRED BY LIMITATION. 11. IN VIEW OF THIS, NEITHER WE FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DISMISSING THE APPEAL BEFORE HIM BEING BARRED BY LIMITATION NOR WE FIND ANY REASON OR SUFFICIENT CAUSE TO CONDO NE THE DELAY IN FILING THE APPEAL BEFORE THIS TRIBUNAL. HENCE, THE APPEAL OF THE ASSESSEE IS DISMISSED IN BOTH COURTS. 12. THE APPEAL OF THE ASSESSEE IS THEREFORE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.07.2016. SD/- SD- (D. KARUNAKARA RAO) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.07.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ ITA NO.1603/M/2015 MRS. ANUJA K. PARIKH 6 BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.