AVO Carbon Holding LLC, CHENNAI V. DCIT, CHENNAI

ITA 1912/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7922 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 30-01-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 24-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: GIRISH S.SUNDAR
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , ! ' ! # . $ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.1912/MDS./2016 / ASSESSMENT YEAR : 2012-13 M/S.AVO CARBON HOLDING LLC, 25/A2, DAIRY PLANT ROAD, SIDCO INDUSTRIAL ESTATE, AMBATTUR,CHENNAI 600 098. VS. THE DCIT, INTERNATIONAL TAXATION-1(2), 121, MAHATMA GANDHI ROAD, CHENNAI-34. [PAN AAJCA 5998 D ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : MR.GIRISH S.SUNDAR,C.A /RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT D.R / DATE OF HEARING : 30 - 01 - 201 7 / DATE OF PRONOUNCEMENT : 08 - 02 - 2017 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE ARE DIRECTED AGAINST THE DRAFT ASSESSMENT ORDER DATED 28.01.2016 FOR A.Y 2012-13, CONSEQUENT TO THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL-2 (D RP), BANGALORE, DATED 30.03.2015 U/S. 143(3) R.W.S.144C(1) OF THE ACT. ITA NO.1912/MDS./16 :- 2 -: 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR OUR ADJUDICATION. I) TREATMENT OF MANAGEMENT FEE OF INR 18,377,40 3 AS FEE FOR INCLUDED SERVICES. II) WITHOUT PREJUDICE TO THE ABOVE GROUND, THE L D. ASSESSING OFFICER ERRED IN CONCLUDING THAT MANAGEMENT SERVICES ARE TA XABLE DISREGARDING THE LANGUAGE IN INDIA-US DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA). 3. AT THE TIME OF HEARING, THE COUNSEL FOR THE ASS ESSEE FILED A PETITION FOR ADJOURNMENT STATING THAT THAT THE ASSE SSEE IS IN THE PROCESS OF PREPARING WRITTEN SUBMISSION AND TO POST THE CASE ON REGULAR DATE. AS IT IS SEEN FROM THE RECORD, THIS C ASE HAS BEEN POSED FOR HEARING ON 04.08.2016, 18.10.2016, 08.12.2016, 25.01.2017 AND LASTLY THE CASE WAS POSTED ON 30.01.2017. ON ALL OC CASIONS CITED ABOVE, THE ASSESSEES COUNSEL SOUGHT ADJOURNMENT FO R ONE OR OTHER REASONS. THE BENCH WAS VERY CONSIDERATE AND GIVEN A DJOURNMENT. IN OUR OPINION, THE REASONS GIVEN BY THE ASSESSEE ON T ODAY FOR SEEKING ADJOURNMENT WAS SAME AS GIVEN IN ON 18.10.2016, 08. 12.2016 AND 25.01.2017. IN OUR OPINION, THE ASSESSEE IS NOT SER IOUS IN PROSECUTING THIS APPEAL. HENCE, THE ADJOURNMENT IS REJECTED. ITA NO.1912/MDS./16 :- 3 -: 4. FURTHER, THERE WAS A DELAY OF 87 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. THE ASSESSEE FILED A CONDONED PETITION STATING THAT THE FINANCE MANAGER, WHO WAS HANDLING THE TAX MATTERS, HAD RESIGNED FROM THE OFFICE DURING THE MONTH OF FEBRUA RY,2016. IN THIS REGARD, THE ERSTWHILE FINANCE MANAGER DID NOT HAND OVER THE RELEVANT ASSESSMENT ORDER AND OTHER DOCUMENTS TO THE SUCCESS OR WHILE RELIEVING FROM THE OFFICE OF THE PETITIONER. ACCORD ING TO HIM, DUE TO THIS REASON, THE ASSESSEE FAILED TO FILE THE APPEAL IN T IME BEFORE US AND CAUSED DELAY OF 87 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. AS SEEN FROM THE PETITION, FILED BY THE ASSESSEE, THE ASSESSEE HAS NOT MENTIONED THE NAME OF FINANCE MANAGER, WHO HAS RECE IVED THE IMPUGNED THE ASSESSMENT ORDER, AGAINST WHICH THE A SSESSEE IS IN APPEAL BEFORE US. IT IS ALSO NOT MENTIONED THE DATE ON WHICH THE FINANCE MANAGER WAS RELIEVED FROM THE DUTY AND THE REASON ON WHICH HE WAS NOT HANDED OVER THE APPEAL DOCUMENTS TO THE ASSESSEE FOR FURTHER ACTION. THE REASONS ADVANCED BY THE ASSESS EE IN ITS CONDONATION PETITION ARE VERY VAGUE AND IT WAS TOO GENERAL. THE REASONS ADVANCED BY THE ASSESSEE CANNOT BE CONSIDER ED AS A REASONABLE ONE SO AS TO CONDONE THE DELAY OF 87 DAY S. THE APPROACH OF THE ASSESSEE HEREIN IS VERY CASUAL AND REQUIRES NO SYMPATHY FROM OUR END, SINCE HE HAS NOT SHOWN GOOD AND SUFFICIENT REASONS TO CONDONE THE DELAY. ACCORDINGLY, WE PLACE RELIANCE ON THE ORDER OF ITA NO.1912/MDS./16 :- 4 -: THIRD MEMBER OF THE CO-ORDINATE BENCH OF TRIBUNAL I N THE CASE OF JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. REPORTED IN [2 007] 104 ITD 149 (ITAT[CHEN]) WHEREIN HELD THAT:- THE LAW ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE DIC TUM: VIGILANTIBUS NON DOEMIENTIBUS JURA SUBVENIUNT. THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE APPELLANTS CASEIS HARD AND CALL S FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELI EF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CA USE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND ATTENTION, COULD HAVE BEEN AVOIDED, CANNOT BE A SUF FICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHE RE NO NEGLIGENCE OR INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MA DE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUS T COME WITH CLEAN HANDS. ACCORDINGLY, WE ARE INCLINED TO DISMISS THE APPEAL OF THE ASSESSEE AS UNADMITTED. ITA NO.1912/MDS./16 :- 5 -: ACCORDINGLY, WE ARE INCLINED TO DISMISS THE APPEAL OF ASSESSEE AS UNADMITTED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON 08 TH FEBRUARY, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 08 TH FEBRUARY, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF