Roshanlal Classics, CHENNAI V. ITO, CHENNAI

ITA 1897/CHNY/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7785 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 04-07-2014
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: S SRIDHAR
• Keywords: Right to appeal; Condonation of delay

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I.T.A.NO S . 1897 & 1898/MDS/2014 ASSESSMENT YEAR :200 3 - 0 4 M/S. ROSHANLAL CLASSICS, B - 2, KHAZANA PLAZA, 36, CATHEDRAL ROAD, CHENNAI 600 0 06 . [PAN: A A EFR2527F ] VS. THE INCOME TAX OFFICER, BUSINESS WARD X V ( 2 ) CHENNAI 600 0 34 . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI A.B. KOLI , J CIT / DATE OF HEARING : 01 . 0 3 .201 6 / DATE OF P RONOUN CEMENT : 09 . 0 3 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BOTH THE APPEAL S FILED BY THE SAME ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDER S OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) XII , CHENNAI , BOTH DATED 29 . 1 0 .20 1 2 RELEV ANT TO THE ASSESSMENT YEAR 200 3 - 0 4 . 2. BOTH THE APPEALS OF THE ASSESSEE ARE FOUND TO HAVE BEEN FILED LATE BY 1284 DAYS IN FILING THE APPEALS. THE ASSESSEE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY OF 1248 DAYS , WHEREIN IT WAS SUBMITTED AS UNDER: I.T.A. NO S . 1897 & 1898 /M/ 14 2 I AM THE MANAGING PARTNER OF THE PETITIONER PARTNERSHIP FIRM AND I AM WELL ACQUAINTED WITH THE FACTS OF THE CASE, COMPETENT TO SWEAR TO THIS AFFIDAVIT. I STATE THAT CONSEQUENT TO THE SURVEY CONDUCTED BY THE INCOME TAX DEPARTMENT, ASSESSMENT WAS FRAMED A CCEPTING THE HIGHER RETURN OF INCOME WHICH ACT OF THE PETITIONER PARTNERSHIP FIRM WAS CONSIDERED FOR INITIATION AND LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT. I STATE THAT THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT WAS NOT SUSTAINABLE IN LAW IN VIEW OF THE DECISION OF THE APEX COURT REPORTED IN 352 ITR 480 IN AS MUCH AS I STATE THAT THE ADDITION PER SE WAS NOT SUSTAINABLE IN LAW ESPECIALLY IN VIEW OF THE PETITIONER'S AGREEMENT FOR ACCEPTING THE HIGHER STOCK IN THE STATEMENT RECORDED AT THE TIME OF SURVE Y. I STATE THAT LACK OF MATERIALS COULD VITIATE THE ADDITION IN THE COMPUTATION OF TAXABLE TOTAL INCOME WHICH ADDITION WAS OFFERED BASED ON THE SWORN IN STATEMENT GIVEN BY ME AT THE TIME OF SURVEY. I STATE THAT THE CONSEQUENTIAL PENALTY IMPOSED U/S 271 (1 )(C) OF THE ACT WAS NOT SUSTAINABLE IN LAW. I STATE THAT THE SAID PENALTY ORDER WAS APPEALED AGAINST AND IN THE SAID APPELLATE ORDER THE VALIDITY OF THE LEVY OF PENALTY EVEN THOUGH CANVASSED WAS NOT ADJUDICATED PROPERLY AS REFLECTED IN THE ORDER DATED 29.10.2010. I STATE THAT THE VALUATION OF STOCK AS AGAINST THE CONCEPT OF EXCESS STOCK WAS NOT UNDERSTOOD ON THE CONSIDERATION OF THE FACTS OF THE CASE AND IN THIS REGARD I STATE THAT THE SURVEY PERSONS HAS QUESTIONED THE VALUATION OF STOCK AND NOT QUES TION THE QUANTITY OF THE SAME IN COMPARISON WITH THE QUANTITY RECORDED IN THE BOOKS OF ACCOUNT. I STATE THAT EVEN THOUGH THE SAID ASPECTS WERE CANVASSED BEFORE THE FIRST APPELLATE AUTHORITY AND NOT ADJUDICATED IN THE APPELLATE ORDER UNDER CONSIDERATION W HICH CREATED MISUNDERSTANDING AMONG THE PARTNERS. I STATE THAT THE OTHER PARTNERS WERE NOT HAPPY AND COMFORTABLE ON READING OF THE APPELLATE ORDER IN AS MUCH AS OF THE NON CONSIDERATION OF THE CRUCIAL ISSUE WHICH I PROJECTED IN THE EARLIER PARA WAS DUE T O MY INADEQUATE BRIEFING TO MY AUTHORISED REPRESENTATIVE. I.T.A. NO S . 1897 & 1898 /M/ 14 3 I STATE THAT DUE THIS MISUNDERSTANDING THE DECISION TO FILE THE APPEAL AGAINST THE APPELLATE ORDER WAS NOT TAKEN AND I STATE THAT AFTER ISSUANCE OF THE SHOW CAUSE NOTICE FOR PROSECUTION DATED 06.03 .2014. I CONSULTED THE COUNSEL ON RECORD ALONG WITH MY PARTNERS SENSING THE SERIOUSNESS OF THE ISSUES. I STATE THAT THE DECISION TO FILE THE APPEAL WAS TAKEN IN THE LAST WEEK OF JUNE 2014 IN THE MEETING I HAD WITH THE COUNSEL ON MY RECORD ALONG WITH MY P ARTNERS. I STATE THAT BASED ON THE PROFESSIONAL ADVISE THE APPEAL WAS PREFERRED THROUGH THE COUNSEL ON RECORD ON 07.07.2014 IN THE REGISTRY OF APPELLATE TRIBUNAL AND ON CUMULATIVE REASON THE DELAY OF 1248 DAYS MAY BE CONDONED AND THE APPEAL BE ADMITTED F OR RENDERING DECISION ON MERITS OF THE GROUNDS OF APPEAL FORMING PART OF THE STATUTORY FORM NO.36 IN THE INTEREST OF JUSTICE. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE DELAY IS NEITHER WILFUL NOR WANTON AND BEYOND THE CONTROL OF THE AS SESSEE. THEREFORE, HE PRAYED THAT THE DELAY MAY BE CONDONED AND ADMITS THE APPEAL FOR HEARING. 4. ON THE OTHER HAND, THE LD. DR HAS STRONGLY OBJECTED TO THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE HEARD BOTH SIDES AND CAREFULLY GONE THRO UGH THE AFFIDAVIT S FILED BY THE ASSESSEE FOR CONDONATION OF DELAY IN FILING BOTH THE APPEAL S . IN THIS CASE, THERE IS A DELAY OF 1284 DAYS IN FILING BOTH THE APPEALS AND NO SUFFICIENT CAUSE IS EMANATING FROM THE AFFIDAVITS FILED BY THE ASSESSEE . IN THE AFFI DAVIT FILED FOR THE PURPOSE OF CONDONATION OF HUGE DELAY OF 1284 DAYS, THE ASSESSEE SHOULD HAVE EXPLAINED THE REASONS FOR ACTUAL DELAY IN FILING THE I.T.A. NO S . 1897 & 1898 /M/ 14 4 APPEALS BEFORE THE TRIBUNAL, WHEREAS, IN THE AFFIDAVIT FILED BY THE ASSESSEE, WITHOUT TAKING PROPER PLEA, I T WAS CONTENDED OVER THE LEVY OF PENALTY IN ASSESSEE S CASE, WHICH CANNOT BE HELD AS SUFFICIENT CAUSE FOR CONDONING THE DELAY . THOUGH THE ASSESSEE HAS STATED SOME REASONS IN THE NATURE OF ASSUMPTION/MISUNDERSTANDING IN THE AFFIDAVIT FOR PREFERRING APPEALS BEFORE THE TRIBUNAL, BUT THE REASONS MENTIONED IN THE AFFIDAVIT ARE VERY VAGUE AND NO T SUFFICIENT TO CONDONE THE HUGE DELAY OF MORE THAN THREE AND HALF YEARS I.E. 1284 DAYS . THE FIRST APPELLATE ORDER WAS PASSED ON 29.10.2010 CONFIRMING BOTH THE PENALTIES L EVIED BY THE ASSESSING OFFICER. T HE INCOME TAX ACT HAS PROVIDED SUFFICIENT TIME OF 60 DAYS FOR CONSULTATION, PREPARING APPEAL PAPERS, ETC. FOR FILING FURTHER APPEAL(S) BEFORE THE TRIBUNAL. BUT IN THIS CASE, IT WAS SHEER NEGLIGENCE ON THE PART OF ASSESSEE T O SIMPLY SLEPT ON THE ORDERS OF THE FIRST APPELLATE AUTHORITY FOR MORE THAN THREE AND HALF YEARS AND WHEN THE DEPARTMENT STARTED INITIATING FURTHER COURSE OF ACTION BY ISSUANCE OF SHOW CAUSE NOTICE FOR PROSECUTION DATED 06.03.2014 [AS STATED IN THE AFFIDAV IT] , THE ASSESSEE SUDDENLY WAKED - UP AND FILED APPEALS ON 07.07.2014 WITH THE HUGE DELAY OF 1284 DAYS TO EVADE PAYMENT OF PENALTY . TO CONDONE THE DELAY, THE ONUS LIES ON THE ASSESSEE TO SUBSTANTIATE SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEALS. SINCE TH E ASSESSEE HAS FAILED TO SUBSTANTIATE SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEALS BEYOND THE STIPULATED TIME, THE AFFIDAVIT S FILED FOR CONDONATION OF DELAY IS LIABLE TO BE DISMISSED. OUR VIEW FIND SUPPORT FROM THE DECISION OF THE HON BLE JURISDICTIONA L HIGH COURT IN THE I.T.A. NO S . 1897 & 1898 /M/ 14 5 CASE OF MADHU DADHA V. ACIT [2009] 317 ITR 458, WHEREIN THE HON BLE HIGH COURT DISMISSED THE APPEAL FILED BY THE ASSESSEE AND CONFIRMED THE ORDER OF THIS TRIBUNAL SINCE THE ASSESSEE HAD NOT TAKEN PROPER PLEA TO SHOW SUFFICIENT CAUSE FO R CONDONING THE DELAY IN FILING THE APPEAL . IN THE PRESENT CASE, THE NEGLIGENT ATTITUDE OF THE ASSESSEE CANNOT BE TAKEN CARE TO PRESERVE THE RIGHT OF APPEAL SINCE THE ASSESSEE HAS SLEPT OVER FOR 1284 DAYS AND NOT EXPLAINED SUFFICIENT CAUSE TO CONDONE THE DELAY IN FILING THE APPEAL S . THEREFORE, THE AFFIDAVIT S FILED FOR CONDONATION OF DELAY STAND DISMISSED AND NOT ADMITTED FOR HEARING OF THE APPEALS FOR FURTHER ADJUDICATION. ACCORDINGLY, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE DISMISSED AS NOT MAINTAINABLE. 6 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THE 9 TH MARCH , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, D ATED, THE 09 . 0 3 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.