Sri S.M. Ashik Hussian, Salem V. ITO, Salem

ITA 1918/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77209 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB ADDITIONAL
• Assessee Lawyers: T S LAKSHMIVENKATARAMAN
• Keywords: Reasonable cause
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , , !' # , $ % BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1918/MDS./2013 ( / ASSESSMENT YEAR :2009-10) SRI S.M.ASHIK HUSSIAN , NO.11A,SUBBURAYA MUDALIAR LAYOUT,HASTHAMPATTY, SALEM 636 007. VS. INCOME TAX OFFICER, WARD -1(4), SALEM. PAN AEZPA 3498 M ( &' / APPELLANT ) ( #(&' / RESPONDENT ) / APPELLANT BY : SHRI T.S.LAKSHMI VENKATARAMAN, C.A. / RESPONDENT BY : SHRI SHAJI P JACOB, ADDITIONAL CIT D.R. / DATE OF HEARING : 11.03.2014 ! /DATE OF PRONOUNCEMENT : 10.04.2014 ) / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LD. CIT (A) DATED 30.09.2013 IN ITA NO.7/2012-1 3 PASSED U/S. 143(3) READ WITH SECTION 250 OF THE ACT. ITA NO.1918/MDS/13 2 2. THE ASSESSEE HAS RAISED SIX GROUNDS IN ITS APPE AL, HOWEVER, THE CRUX OF THE ISSUE ARE THAT: (I) THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LD. CIT (A) FOR NOT CONDONING THE DELAY IN FILING THE APPEAL AN D ADJUDICATE THE CASE ON MERITS. (II) THE LD. ASSESSING OFFICER IS NOT JUSTIFIED I N DISALLOWING THE SUM OF ` 9,50,000/- BEING CABLE NETWORK CHARGES PAID BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. (III) THE LD. ASSESSING OFFICER IS NOT JUSTIFIED I N DISALLOWING A PORTION OF BUSINESS DEVELOPMENT EXPENSES AMOUNTING TO ` 47,000/- WITHOUT PINPOINTING ANY SPECIFIC DEFECTS I N ACCOUNTS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF CABLE TV OPE RATOR, FILED HIS RETURN OF INCOME ON 29.09.2009 FOR THE ASSESSMENT Y EAR 2009-10, ITA NO.1918/MDS/13 3 ADMITTING AN INCOME OF ` 6,21,740/-. THE RETURN WAS TAKEN FOR SCRUTINY AND ASSESSMENT U/S.143(3) OF THE ACT WAS C OMPLETED ON 15.12.2011 WHEREIN THE LD. ASSESSING OFFICER MADE A DDITIONS OF ` 9,50,000/- FOR NOT DEDUCING TAX AT SOURCE U/S. 194 OF THE ACT FOR THE PAYMENT MADE TO CABLE METRO CHARGES BY INVOKING SEC .40(A)(IA) OF THE ACT. THE LD. ASSESSING OFFICER ALSO MADE AN AD DITION OF ` 47,000/- SINCE THE ASSESSEE HAD NOT PRODUCED THE VO UCHERS FOR THE EXPENSES INCURRED FOR ` 4,69,500/- IN THE COURSE OF HIS BUSINESS. 4. WHEN THE MATTER REACHED THE LD. CIT (A), THE AP PEAL OF THE ASSESSEE WAS REJECTED BECAUSE THERE WAS A DELAY OF 223 DAYS IN FILING THE APPEAL AND THE ASSESSEE HAD NOT FURNISHE D ANY COGENT REASONS FOR THE DELAY IN FILING THE APPEAL. IN DO ING SO, THE LD. CIT (A) OBSERVED AS UNDER:- 7. I HAVE PERUSED THE ABOVE PETITION AND THE SUBM ISSION OF THE APPELLANT. THE APPELLANT HAS NOT GIVEN THE MATTER T HE IMPORTANCE IT DESERVES. IF HE HAD REALIZED THE IMPORTANCE, THEN HE WOULD HAVE FILED THE APPEAL IN TIME OR PAID THE DEMAND. HE HAS DONE NEITHER BUT HAS LET THE MATTER LIE AND HAS ACTED ONLY WHEN THE DEMAND W AS ENFORCED. IF THE DEMAND HAD NOT BEEN ENFORCED, THEN HE WOULD HAV E NOT FILED THE ITA NO.1918/MDS/13 4 APPEAL EVEN NOW. THE HONBLE ITAT IS ITS DECISION I N ITA 330/2010 IN ITS ORDER DATED 22//12/2010 HAS DEALT WITH SIMILAR REAS ONS AND HAS NOT CONDONES THE DELAY. 8. IN VIEW OF THE ABOVE, I AM OF THE OPINION THAT THE DELAY IS NOT ON ACCOUNT OF ANY REASONABLE CAUSE OR BONA FIDE REASON S. THE DELAY IS NOT CONDONED AND THE APPEAL IS NOT ADMITTED. 5. BEFORE US, THE LD. A.R. ARGUED BY STATING THAT THE ASSESSEE HAD FILED AN AFFIDAVIT BEFORE THE LD. CIT (A); HOWEVER THOUGH THE LD. CIT (A) HAD CONSIDERED THE AFFIDAVIT, REJECTED THE SAME BECAUSE THE ASSESSEE HAD ACTED UPON THE ASSESSMENT ORDER ONLY W HEN THE DEMAND WAS ENFORCED AND THAT WOULD NOT AMOUNT TO AN Y REASONABLE CAUSE FOR CONDONING THE DELAY OF 223 DAYS IN FILING THE APPEAL. LD. A.R. FURTHER SUBMITTED THAT THE ASSESSEE IS ENG AGED IN THE BUSINESS OF TV CABLE OPERATOR AND DID NOT UNDERSTAN D THE INTRICACIES OF TAX LAWS AND WAS NOT GUIDED BY THE LD.COUNSEL OF THE ASSESSEE PROPERLY. THE LD. A.R. ALSO SUBMITTED THAT THE ASS ESSEE HAS A FAVORABLE CASE ON MERITS AND THEREFORE, AN OPPORTUN ITY MAY BE PROVIDED BY CONDONING THE DELAY IN ORDER TO DECIDE THE CASE ON MERITS. LD. D.R VEHEMENTLY OPPOSED THE SUBMISSIONS OF THE LD. A.R ITA NO.1918/MDS/13 5 AND ARGUED BY STATING THAT THERE WAS AN INORDINATE DELAY IN FILING THE APPEAL AND THE REASONS CITED BY THE ASSESSEE DOES N OT HAVE ANY MERIT AND IT WAS MERELY AN EXCUSE. IT WAS THEREFOR E REQUESTED THAT THE ORDERS OF THE REVENUE MAY BE CONFIRMED. 6 WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE MATERIALS AVAILABLE ON RECORD. AS POINTED OUT BY T HE LD. CIT (A) THE ASSESSEE OUGHT TO HAVE FILED THE APPEAL ON OR BEFOR E 27.01.2012, NEVERTHELESS THE ASSESSEE HAD FILED THE APPEAL ONLY ON 07.09.12 RESULTING IN DELAY OF 223 DAYS. HOWEVER ON PERUSIN G THE FACTS OF THE CASE, IT APPEARS THAT THE ASSESSEE HAS AN ARGUABLE CASE. CONSIDERING THE NATURE OF BUSINESS THE ASSESSEE HAS ENGAGED IN, AND THE LACK OF PROFESSIONAL DILIGENCE SHOWN BY REP RESENTATIVE OF THE ASSESSEE FOR NOT ADVISING THE ASSESSEE IN FILING TH E APPEAL WITHIN THE PRESCRIBED PERIOD, WE ARE OF THE CONSIDERED VIEW TH AT IN THE INTEREST OF JUSTICE, AN OPPORTUNITY SHOULD BE PROVIDED TO THE A SSESSEE TO PURSUE HIS APPEAL. THEREFORE, WE HEREBY CONDONE THE DELAY OF 223 DAYS IN FILING THE APPEAL AND HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) WITH DIRECTION TO HEAR THE APPEAL ON MERITS AND PASS ITA NO.1918/MDS/13 6 APPROPRIATE ORDER AS PER LAW AFTER AFFORDING SUFFIC IENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 10 TH APRIL, 2014 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASA D ) (A.MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 10 TH APRIL, 2014. K S SUNDARAM. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE