M/s Mewat Grit Udyog, New Delhi V. Pr,CIT, New Delhi

ITA 1802/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3434 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 11-04-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS PARAMITA TRIPATHY
• Assessee Lawyers: RAKESH KUMAR GUPTA; SOMIL AGRAWAL ADVS
• Keywords: Principle of natural justice; Bonafide belief; Condonation of delay; Ignorance of law
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 1802/DEL/2016 ASSESSMENT YEAR: 2010-11 MEWAT GRIT UDYOG, VS. PR. CIT, DELHI -7 C/O M/S RRA TAXINDIA NEW DELHI D-28, SOUTH EXTENSION, PART-I, NEW DELHI 49 (PAN: AABFM5886H) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. RAKESH KUMAR GUPTA, ADV. AND SH. SOMIL AGRAWAL, ADVS. REVENUE BY : MRS. PARAMITA TRIPATHY, CIT(DR) ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDE R DATED 24.3.2015 PASSED BY THE LD. CIT(CENTRAL), NEW DELHI RELATING TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED READ AS UNDER:- 1. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF T HE CASE, LD. CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING JURISDICTION U/S 263 AND HAS FURTHER ERRED IN HOLDING THAT THE ASSESSMENT ORDER IS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF REVENUE. 2 2. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF T HE CASE, LD, CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING JURISDICTION U/S 263 AND HAS ERRED IN HOLDING AS UNDER:- THAT THE ASSESSEE WAS NOT ABLE TO FULLY EXPLAIN THE CONTRIBUTION OF CAPITAL OF RS.4 CRORE AND THUS SETT ING ASIDE THE ISSUE TO THE FILE OF LD. AO FOR FRESH CONSIDERATION. THAT THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURC E OF CASH DEPOSIT AMOUNTING TO RS. 4.72 CRORE AND THU S SETTING ASIDE THE ISSUE TO THE FILE OF LD. AO FOR F RESH CONSIDERATION. THAT THE ASSESSEE WAS NOT ABLE TO PROVE THE GENUINENESS AND VERACITY OF CASH DISCOUNT DEBITED I N ITS PROFIT & LOSS ACCOUNT AMOUNTING TO RS.6.18 CROR E AND THUS SETTING ASIDE THE ISSUE TO THE FILE OFLD. AO FOR FRESH CONSIDERATION. THAT AN AMOUNT OF RS.95,95,186/- SHOULD BE DISALLOWABLE ULS 40(A)(IA) ON THE GROUND THAT TDS W AS NOT DEDUCTED ON THIS AMOUNT U/S 194A AND THUS SETTING ASIDE THE ISSUE TO THE FILE OF LD. AO FOR F RESH CONSIDERATION. 3 3. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF T HE CASE, LD. CI'T HAS ERRED IN LAW AND ON FACTS IN MAK ING ADVERSE OBSERVATION QUA EACH OF THE FOUR ISSUES AND THUS PREEMPTING THE QUASI JUDICIAL FUNCTION OF ASSESSING OFFICER. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. AO IN ASSUMING JURISDICTION AND PASSING THE IMPUGNED ORDER ULS 263 IS BAD IN LAW AND AGAINST TH E FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, AMEN D, MODIFY, DELETE ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS AR E WITHOUT PREJUDICE TO EACH OTHER. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE HAS REITERATED THE CONTENTIONS RAISED IN THE APPLICATION FOR CONDO NATION OF DELAY AND THE AFFIDAVIT AND HE REQUESTED THAT THE DELAY OF 31 2 DAYS IS NOT INTENTIONAL AND IS BONAFIDE AND DUE TO IGNORANCE OF LAW ON THE PART OF THE ASSESSEE. IN VIEW OF ABOVE, HE REQUESTED THAT DELAY OF 312 DAYS 4 MAY BE CONDONED AND THE ASSESSEES APPEAL MAY BE AD MITTED AND MAY BE HEARD ON MERITS. 5. ON THE OTHER HAND, LD. CIT(DR) STRONGLY OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE FOR CONDONING THE HUGE DELAY OF 312 DAYS AND SHE STATED THAT BEFORE THE LOWER AUTHOR ITIES, THE ASSESSEE WAS REPRESENTED BY THE QUALIFIED/COMPETENT ADVOCATE , HENCE, THE QUESTION OF IGNORANCE OF LAW AND BONAFIDE BELIEF DO ES NOT ARISE. THEREFORE, THE DELAY MAY NOT BE CONDONED AND APPEAL OF THE ASSESSEE MAY BE DISMISSED ON THIS ACCOUNT. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE FIND THAT AT THE TIME OF FILING THE APPEAL BEFORE T HE TRIBUNAL ON 06.4.2016, THE REGISTRY HAS ISSUED THE DEFECT NOTIC E AND RAISED THE DEFECT VIDE SERIAL NO. 11 STATING THEREIN THAT APPEAL IS PRIMA FACIE TIME BARRED BY 312 DAYS. IN RESPONSE TO ABOVE SAID DEFECT NOTICE, ASSESSEES AR HAS FILED A LETTER DATED 18.7.2016 RE GARDING REMOVAL OF DEFECT FOR CONDONATION OF DELAY OF 312 DAYS WHICH W AS PLACED ON RECORD AND ALSO ENCLOSED THE AFFIDAVIT DATED 26.7.2 016 IN THIS BEHALF. FOR THE SAKE OF CLARITY, WE ARE REPRODUCING THE CON TENTS OF THE APPLICATION FOR CONDONATION OF DELAY AS WELL AS AFF IDAVIT AS UNDER:- SUB: - PRAYER FOR CONDONATION OF DELAY IN FILING O F APPEAL IN THE CASE OF M/S MEWAT GRIT UDYOG FOR AY 2010-11 IN ITA NO. 1802/DEL/2016 AGAINST ORDER PASSED U/S. 263 OF INCOME TAX ACT, 1961. THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143(3) WHICH WAS REVISED U/S. 263 VIDE ORDER DATED 24.3.2015. APPEAL AGAINST THIS ORDER HAS BEEN 5 PREFERRED BY THE ASSESSE ON 6.4.2016 WITH DELAY OF 312 DAYS. PURSUANT TO THE DIRECTION GIVEN IN ORDER U/S. 263, ASSESSMENT ORDER WAS PASSED U/S. 143(3)/263 DATED 15.3.2016, AGAINST WHICH ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), ROHTAK ON 8.4.2016. WHEN THE ASSESSEE CONTACTED DR. RAKESH GUTPA FOR FILING APPEAL AGAINST ORDER U/S. 143(3)/263, ASSESS EE CAME TO KNOW ON THE ADVICE OF DR. RAKESH GUPTA, ADVOCATE THAT ASSESSE SHOULD HAVE FILED AN APPEAL BEFORE HONBLE TRIBUNAL AGAINST THE ORDER U/S. 263 ALSO, AS THE ORDER U/S. 263 CAN BE CHALLENGED BEFOR E HONBLE TRIBUNAL ONLY. ACCORDINGLY, APPEAL WAS FILE D BEFORE HONBLE TRIBUNAL ON 6.4.2016. THE ASSESSEE REMAINED UNDER THE BONAFIDE BELIEF THA T REMEDY WOULD LIE WHEN THE ORDER PURSUANT TO THE DIRECTION U/S. 263 WOULD BE PASSED. HENCE APPEAL U/S. 263 COULD NOT BE FILED IN TIME DUE TO IGNORAN CE OF LAW AND BONAFIDE BELIEF AS MENTIONED ABOVE. THEREFORE, WHEN APPEAL WAS FILED BEFORE HONBLE TRIBUNAL AGAINST ORDER U/S. 263 AS AFORESAID, DELAY OF 312 DAYS HAPPENED DUE TO THE ABOVE MENTIONED 6 REASON WHICH, IT IS SUBMITTED WITH GREAT RESPECT, W AS GOOD AND SUFFICIENT REASON. IT IS THEREFORE PRAYED THAT THE DELAY MAY PLEASE BE CONDONED AS WAS CONDONED BY YOUR HONOURS IN THE CASE OF SHEENA EXPORTS IN ITA 6001/DE1./2013, DATE OF ORDER 15-10-2014. RELIANCE IS FURTHER PLACED ON THE JUDGMENT OF COLLE CTOR, LAND ACQUISITION VS. MST. KATIJI & OTHERS 167 ITR 4 71 (SC). AFFIDAVIT I N. K. GUPTA SON OF SHRI PYARE LAL GUPTA, RJO 555, BEHIND PNB BUILDING, QUTABPUR, REWARI, HARYANA, AGED 68 YEARS DO HEREBY SOLEMNLY DECLARE AND AFFIRM AS UNDER:- 1. THAT AM PARTNER IN MJS MEWAT GRIT UDYOG, ADDRESS BEHIND PNB BUILDING, QUTABPUR, REWARI, HARYANA. 2. THAT SHRI V.K.SHARMA ADVOCATE AT REWARI USED TO BE OUR TAX CONSULTANT AND ADVOCATE SINCE 35 YEAR S. 3. THAT UNFORTUNATELY SHRI V.K.SHARMA ADVOCATE EXPIRED ON 23-05-2009 AND HIS PROFESSION WAS 7 SUCCEEDED BY HIS SON SHRI NAMAN SHARMA, ADVOCATE, AGED 30 YEARS. 4. THAT CLUE TO THE DEATH OF SHRI V.K.SHARMA ADVOCATE, ASSESSMENT OF THE ABOVE MENTIONED FIRM FO R AY. 2010-11 WAS ATTENDED BY ME PERSONALLY BEFORE DCIT, FARIDABAD AND ASSESSMENT ORDER WAS PASSED U/S 143(3) ON 25-10-2012. 5. THAT THE ABOVE SAID ASSESSMENT WAS FOUND ERRONEOUS BY CIT, GURGAON U/S 263 VIDE ORDER DATE 24-03-2015. 6. THAT DURING THE REVISION PROCEEDING, I ACCOMPANIED WITH SHRI NAMAN SHARMA ADVOCATE BUT AFTER THE ORDER WAS PASSED, I WAS NOT ADVISED BY HI M THAT ANY REMEDY LIES AGAINST SUCH ORDER PASSED BEFO RE INCOME TAX APPELLATE TRIBUNAL. ALL THAT WAS ADVISED BY HIM WAS THAT ONCE ASSESSMENT ORDER WOULD BE PASSED PURSUANT TO SUCH ORDER U/S 263, WE WOULD HAVE REMEDY BY WAY OF APPEAL BEFORE CIT(A). 7. THAT I BEING NON TECHNICAL PERSON BELIEVED HIM I N GOOD FAITH AND WHEN AFTER THE ASSESSMENT ORDER WAS AGAIN PASSED PURSUANT TO THE DIRECTION GIVEN IN THE ORDER U/S 263, I APPROACHED DR. RAKESH GUPTA, 8 ADVOCATE IN DELHI TO FILE APPEAL AGAINST THE ASSESSMENT ORDER SO PASSED. 8. THAT I WAS TOLD BY DR. RAKESH GUPTA, ADVOCATE OF DELHI THAT APPEAL OUGHT TO HAVE BEEN FILED AGAIN ST THE REVISION ORDER U/S 263 AS THE REMEDY AGAINST SU CH ORDER LIES BEFORE INCOME TAX APPELLATE TRIBUNAL. 9. ACCORDINGLY I FILED THE APPEAL AGAINST THE ORDER U/S 263 BEFORE TRIBUNAL ON 06-04-2016 AN AGAINST TH E ASSESSMENT ORDER THUS PASSED BEFORE C!T(A), ROHTAK ON 08-04-2016. 10. THAT I WAS NOT AWARE ABOUT THE ABOVE SAID REMEDY AVAILABLE BEFORE TRIBUNAL NOR WAS MADE AWARE BY MY ADVOCATE MR. NAMAN SHARMA WHO WAS RELATIVELY NEW TO THE PROFESSION. 11. THAT DUE TO ABOVE MENTIONED REASON OF MY IGNORANCE AND ABSENCE OF PROPER LEGAL ADVICE, COULD NOT FILE APPEAL AGAINST THE ORDER PASSED U/S 263 IN TIME AND THE DELAY OF 312 DAY RESULTED IN FILING AP PEAL TO HON'BLE TRIBUNAL. 12. THAT THE ORDER U/S 263 WAS PASSED ON 24-03- 2015 AND THE APPEAL THERE AGAINST WAS FILED 06-04-2016. 9 13. IN VIEW OF ABOVE SUBMISSIONS, DELAY MAY PLEASE BE CONDONED. SD/- DEPONENT VERIFICATION I,N.K. GUTPA, THE ABOVE NAMED DEPONENT ALSO DECLARE ON OATH THAT WHATEVER STATED BY ME HEREIN ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. PLACE: REWARI DATE: 26-07-20L6 SD/- DEPONENT 7. AFTER GOING THROUGH THE CONTENTIONS RAISED BY TH E ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY OF 312 DAYS AS WELL AS AVERMENTS MADE IN THE AFFIDAVIT OF THE PARTNER OF THE ASSESSE E FIRM. WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS NOT GIVEN ANY PLAUSIBLE REASONS FOR CONDONING THE HUGE DELAY OF 312 DAYS IN THE SA ID APPLICATION AND AFFIDAVIT. ASSESSE HAS ALSO NOT FILED ANY EVIDENCE AS PER THE AVERMENTS MADE BY THE ASSESSEE IN THE APPLICATION FOR CONDONA TION OF DELAY. WE FIND CONSIDERABLE COGENCY IN THE CONTENTIONS RAISE D BY THE LD. 10 CIT(DR) THAT BEFORE THE AO AS WELL AS LD. CIT(A), T HE ASSESSEE WAS REPRESENTED BY A QUALIFIED/COMPETENT ADVOCATE, HENC E, THE QUESTION OF IGNORANCE OF LAW AND BONAFIDE BELIEF DOES NOT AR ISE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE UNABLE TO CONDONE THE HUGE DELAY OF 312 DAYS IN FILING THE PR ESENT APPEAL. HENCE, THE APPEAL FILED BY THE ASSESSEE IS DISMISS ED BEING TIME BARRED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2017 . SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 11/04/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES