A.Kumithini, By Son and Legal Representative A.Balasubramanian, Virudhunagar V. AO, Virudhunagar

ITA 1895/CHNY/2008

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4577 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-08-2013
• Assessment Year: misc
• Appeal Filed On: 18-09-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Reasonable cause; Difference of opinion; Right to appeal; Condonation of delay
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBE R ITA NOS.1894 & 1895/MDS/2008 (ASSESSMENT YEAR : 1985-86) MR. A.BALASUBRAMANIAN, SON & LEGAL REPRESENTATIVE OF 1. S.P.ARUNACHALAM (DECEASED) (PAN: AMUPA6497P) 2. A.KUMUTHINI (DECEASED) (PAN: BCEPK8627G) 2/2, A.S.S.S.S. ROAD, VIRUDHUNAGAR-626 001 VS. THE INCOME TAX OFFICER, WARD-I(4), VIRUDHUNAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. S.SRIDHAR, ADVOCATE RESPONDENT BY : MR. N.MADHAVAN, JCIT DATE OF HEARING : 21 ST AUGUST, 2013 DATE OF PRONOUNCEMENT : 27 TH AUGUST, 2013 O R D E R PER BENCH: IN THESE TWO APPEALS THE ASSESSEES GRIEVANCE IS T HAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFIC ER UNDER SECTION 69 OF THE ACT. THESE APPEALS CAME UP FOR HE ARING EARLIER AND NONE APPEARED BEFORE THE TRIBUNAL ON BE HALF OF THE ASSESSEES AND SINCE THE ASSESSEES DID NOT FILE CONDONATION PETITIONS FOR SUBSTANTIAL DELAY IN FILI NG OF THE ITA NO.1894 & 1895/MDS/2008 2 APPEALS, THESE TWO APPEALS WERE DISMISSED BY THIS T RIBUNAL BY SEPARATE ORDERS DATED 27.11.2009. LATER, THE ASS ESSEES FILED MISCELLANEOUS PETITIONS REQUESTING TO RECALL THE EX-PARTE ORDERS AND THE CO-ORDINATE BENCH OF THIS TRIBUNAL R ECALLED THESE TWO EX-PARTE ORDERS AND RESTORED THE APPEALS BY SEPARATE ORDERS DATED 9.3.2012, AS THE EARLIER ORDE RS PASSED WERE EX-PARTE ORDERS. 2. THE COUNSEL FOR THE ASSESSEES REFERRING TO GROUN DS OF APPEAL NO.4 IN THE CASE OF LATE S.P.ARUNACHALAM SUB MITS THAT THE ASSESSEE WAS ILL AND CONFINED TO BED FOR A LONG TIME AND FINALLY DIED ON 11.01.2008, SIMILARLY IN THE CASE O F LATE A.KUMUTHINI, SHE WAS ILL AND CONFINED TO BED FOR A LONG TIME AND FINALLY DIED ON 9.10.2006. AFTER THE DEMISE OF THE ASSESSEES, THERE WAS DIFFERENCE OF OPINION AMONG TH E FOUR SONS OF THE DECEASED AND THUS THERE WAS SUBSTANTIAL DELAY IN FILING OF THE APPEALS AND THEREFORE, HE REQUESTS TO CONDONE THE DELAY. ON MERITS, THE COUNSEL SUBMITS THAT TH E MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICE R AS THE ASSESSEES COULD NOT FURNISH CERTAIN INFORMATION CAL LED FOR IN ITA NO.1894 & 1895/MDS/2008 3 THE COURSE OF ASSESSMENT PROCEEDINGS IN RESPECT OF THESE ADDITIONS. 3. THE DEPARTMENTAL REPRESENTATIVE RELIED ON THE OR DERS OF THE COMMISSIONER OF INCOME TAX (APPEALS). 4. WE HAVE GONE THROUGH THE SEPARATE ORDERS OF THIS TRIBUNAL IN BOTH THESE CASES (ITA NOS.1894 & 1895/MDS/2008) DATED 27.11.2009 AND FIND THAT THI S TRIBUNAL DISMISSED THE APPEALS EARLIER AS THE ASSESSEES COUL D NOT FURNISH PETITION FOR CONDONATION OF DELAY FOR 1417 AND 1255 DAYS RESPECTIVELY. THIS TRIBUNAL HAD ALSO COME TO THE CONCLUSION THAT THE ASSESSEES COULD NOT EXPLAIN TH E SUBSTANTIAL DELAY AND REASONABLE CAUSE FOR THE DELA Y AND DISMISSED THE APPEALS FOLLOWING THE JURISDICTIONAL HIGH COURT IN THE CASE OF MADHU DADHA VS. ACIT (317 ITR 458). WHILE DISMISSING THESE APPEALS, THE TRIBUNAL HAD CONSIDER ED THE SUBMISSIONS AND CASE LAWS AS UNDER:- 4. I HAVE HEARD THE LD. DR AND CONSIDERED THE MATERIAL ON RECORD AND FIND THAT AS PER COL.9 OF FO RM NO.36, THE ORDER APPEALED AGAINST WAS RECEIVED BY T HE ASSESSEE ON 06.07.2004, WHEREAS APPEAL HAS BEEN FIL ED ITA NO.1894 & 1895/MDS/2008 4 BEFORE THE TRIBUNAL ON 18.09.2008 I.E. AFTER A TIME GAP OF 1477 DAYS AND AFTER EXCLUDING 60 DAYS, DELAY COMES TO 1417 DAYS AND THE ASSESSEE HAS NOT FILED ANY CONDONATION PETITION TO GIVE ANY SUFFICIENT AND REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN D UE TIME. 4.1 IT IS A SETTLED POSITION OF LAW THAT RIGHT OF APPEAL IS NEITHER AN ABSOLUTE NOR AN INGREDIENT OF NATURAL JU STICE, THE PRINCIPLE OF WHICH MUST BE FOLLOWED IN JUDICIAL AND QUASI-JUDICIAL ADJUDICATION. THE RIGHT TO APPEAL IS A STATUTORY RIGHT AND IT CAN BE CIRCUMSCRIBED BY THE CONDITION IN THE GRANT. IF A STATUTE GIVES RIGHT TO APPEAL UPON CERTAIN CONDITIONS IT IS UPON FULFILLMENT OF T HOSE CONDITIONS THAT THE RIGHT BECOMES VESTED IN AND EXERCISABLE BY THE APPELLANT. (AS HELD BY HONBLE SUPREME COURT IN THE CASE OF VIJAY PRAKASH D.MEHTA AND ANOTHER VS. COLLECTOR OF CUSTOMS -175 ITR 140). AS PER 253(3) APPEAL IS REQUIRED TO BE FILED BY THE ASSESS EE OR THE DEPARTMENT WITHIN SIXTY DAYS FROM THE DATE OF COMMUNICATION OF THE ORDER TO BE APPEALED AGAINST O N THE ASSESSEE OR THE COMMISSIONER, AS THE CASE MAY B E, AND UNDER SECTION 253(5) TRIBUNAL MAY ADMIT AN APPE AL AFTER EXPIRY OF RELEVANT PERIOD REFERRED TO IN SECT ION 253(3) IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THAT PERIOD. NO D OUBT IT IS SPECIFICALLY PROVIDED THAT APPEAL CAN BE ADMITTE D AFTER THE PRESCRIBED PERIOD IF THE ASSESSEE SATISFIED THE TRIBUNAL THAT HE/SHE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL WITHIN PERIOD AS PRESCRIBED I N THIS BEHALF. WHERE THE TIME FOR PREFERRING AN APPEAL HAS EXPIRED, A VALUABLE RIGHT IS SECURED TO THE RESPOND ENT OR THE OPPOSITE PARTY AND SUCH RIGHT OUGHT NOT TO BE L IGHTLY DISTURBED AS HELD BY THE HONBLE SUPREME COURT IN T HE CASE OF RAMALAL VS. REWA COADFIELDS LTD. AIR 1962 SUPREME COURT 361. THE APPEAL PREFERRED OR MADE AF TER THE EXPIRY OF THE PRESCRIBED PERIOD CAN BE ADMITTED ONLY IF THE ASSESSEE SATISFIED THE TRIBUNAL THAT THERE W AS SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL WITH IN SUCH PERIOD. THE TRIBUNAL HAS POWER TO CONDONE THE DELAY ONLY WHEN SUFFICIENT CAUSE IS SHOWN WITH A VIEW TO ITA NO.1894 & 1895/MDS/2008 5 ADVANCE SUBSTANTIAL JUSTICE AND EVEN AFTER SUFFICIE NT CAUSE HAS BEEN SHOWN THE PARTY IS NOT ENTITLED TO CONDONATION OF DELAY, AS A MATTER OF RIGHT. IF SUF FICIENT CAUSE IS SHOWN THEN TRIBUNAL HAS TO ENQUIRE, WHETHE R IN ITS DISCRETION, IT SHOULD CONDONE THE DELAY, CONSID ERATION OF BONA FIDES OR DUE DILIGENCE ARE ALWAYS MATERIAL. SINCE ALL OTHER CIRCUMSTANCES ARE ALSO TO BE TAKEN INTO A CCOUNT, BEFORE APPLYING PROVISION OF LAW IN THIS REGARD. 5. NOW ADVERTING TO THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONAT ION OF DELAY GIVING ANY REASONS FOR SUCH AN INORDINATE DEL AY AND THE HONBLE JURISDICTIONAL HIGH COURT IN THE CA SE OF MADHU DADHA V. ACIT (SUPRA) HAS HELD THAT IN THE ABSENCE OF REASONABLE CAUSE FOR THE DELAY, THE APPE AL IS LIABLE TO BE DISMISSED AND HEAD-NOTES READS AS UNDE R: APPEAL TO APPELLATE TRIBUNAL - LIMITATION - APPEAL FILED AFTER DELAY OF 558 DAYS - ASSESSEE FAILING TO SHOW REASONABLE CAUSE FOR DELAY - DELAY CANNOT BE CONDONED - APPEAL TO BE DISMISSED - INCOME-TAX ACT, 1961, 253, 260A. IN VIEW OF THE FACTS, CIRCUMSTANCES, MATERIAL ON RE CORD, THE APPEAL OF THE ASSESSEE IS NOT ENTERTAINED AND A S SUCH IS DISMISSED IN LIMINE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S DISMISSED. 5. THIS TRIBUNAL RECALLED THE EX-PARTE ORDERS VID E ORDER DATED 9 TH MARCH, 2012 AND EVEN AFTER RECALLING THE ORDERS, T HE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEES BEFO RE US COULD NOT FURNISH ANY PETITION FOR CONDONATION OF D ELAY EXPLAINING THE REASONABLE CAUSE FOR THE SUBSTANTIAL DELAY IN FILING OF BOTH THESE APPEALS. SINCE THERE ARE NO C HANGE IN THE ITA NO.1894 & 1895/MDS/2008 6 CIRCUMSTANCES AND IN VIEW OF THE DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MADHU DADH A VS. ACIT (SUPRA) AND THE REASONING OF THIS TRIBUNAL ME NTIONED ABOVE, BOTH THE APPEALS OF THE ASSESSEES ARE NOT EN TERTAINED AND AS SUCH THEY ARE DISMISSED IN LIMINE. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASS ESSEES ARE DISMISSED IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY , THE 27 TH DAY OF AUGUST, 2013 AT CHENNAI. SD/- SD/- ( N.S.SAINI ) (C HALLA NAGENDRA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 27 TH AUGUST, 2013. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.