Umakant Leasing & Finance Pvt.Ltd., Gandhinagar V. The Dy.CIT.,Cent.Circle-2(1), Ahmedabad

ITA 1954/AHD/2009

• Counselvise Citation: 195420514 RSA 2009
• Duration Of Justice: 2 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-10-2011
• Assessment Year: 1993-1994
• Appeal Filed On: 15-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Condonation of delay
• Section: 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. L. GEHL OT, AM) ITA NO.1954/AHD/2009 A. Y.: 1993-94 UMAKANT LEASING & FINANCE PVT. LTD., SHREE I-JEE KRUPA, PLOT NO.234/I, SECTOR -20, GANDHINAGAR VS THE D. C. I. T, CENT. CIR-2(1), AHMEDABAD PA NO. AAACU 1988 J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SAKAR SHARMA, AR RESPONDENT BY SHRI S. K. MEENA, SR. DR DATE OF HEARING: 11-10-2011 DATE OF PRONOUNCEMENT: 14-10-2011 O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-II I, AHMEDABAD DATED 09-01-2002, FOR ASSESSMENT YEAR 1993-94, ON THE FOL LOWING GROUNDS: 1. LD. CIT (A) ERRED ON FACTS AND IN LAW IN CONFIR MING ADDITION OF RS.1,48,00,000/- ON ACCOUNT OF UNEXPLAI NED SHARE APPLICATION MONEY. 2. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN CON FIRMING ADDITION OF RS.43,300/- ON ACCOUNT OF PREMIUM/COMMISSION EARNED ON SHARES. 2. THE ASSESSEE IN THE APPEAL PAPERS STATED 15-01-2 002 AS THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST . HOWEVER, THE ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 2 APPEAL IS FILED IN THE OFFICE OF THE TRIBUNAL ON 15 -06-2009. THE OFFICE, THEREFORE, NOTED THAT THE APPEAL IS TIME BARRED BY 2648 DAYS. 3. THE ASSESSEE IN ORDER TO EXPLAIN THE DELAY IN F ILING THE APPEAL FILED AFFIDAVIT OF SHRI UMAKANT RATHOUR, DIRECTOR O F THE ASSESSEE COMPANY. IT IS STATED THAT IN THE AFFIDAVIT THAT TH E ASSESSEE PREFERRED APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A) IN I TA NO.581/AHD/2002 BUT ON ACCOUNT OF HAVING GOT RELIEF SUBSEQUENTLY BY SEPARATE ORDER U/S 154 OF THE IT ACT, THE ASSESSEE WITHDREW THE APPEAL BEFORE THE TRIBUNAL ASSUMING THAT THERE WOUL D NOT BE ANY FURTHER APPEAL AGAINST THE ORDER OF THE LEARNED CIT (A) U/S 154 OF THE IT ACT. THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN VIDE ORDER DATED 10-03-2004. LATER ON, APPEAL OF THE DEP ARTMENT AGAINST THE ORDER PASSED BY THE LEARNED CIT(A) U/S 154 OF T HE IT ACT CAME UP FOR HEARING BEFORE THE TRIBUNAL IN ITA NO.2078/AHD/ 2003 AND THE DEPARTMENTAL APPEAL IS ALLOWED. THE ASSESSEE FILED MISC. APPLICATION NO.43/AHD/2008 IN ITA NO.581/AHD/2002 BUT THE SAME WAS ALSO DISMISSED VIDE ORDER DATED 15-05-2009. IT IS, THERE FORE, STATED THAT THE ASSESSEE HAS NO OPTION BUT TO MAKE FRESH APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A). IT IS, THEREFORE, STAT ED THAT ORIGINALLY THE ORDER OF THE LEARNED CIT(A) WAS RECEIVED ON 15-01-2 002 AND NOW THE APPEAL IS FILED ON 15-06-2009. THEREFORE, THERE IS A DELAY OF 7 YEARS AND 3 MONTHS IN FILING THE APPEAL. THE ASSESSEE, TH EREFORE, SOUGHT FOR CONDONATION FOR THIS BONA FIDE REASONS MENTIONED AB OVE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE AVERMENTS CONTAINED IN THE AFFIDAVIT FOR CONDONATION OF DELAY AND SUBMITTED THAT ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 3 DUE TO THE ABOVE REASON THE ASSESSEE WITHDREW THE O RIGINAL APPEAL AGAINST THE IMPUGNED ORDER AND SUBMITTED THAT THE A SSESSEE WAS AWARE OF THE DEPARTMENTAL APPEAL IN ITA NO.2078/AHD /2003 PENDING BEFORE THE TRIBUNAL ON THE DAY OF WITHDRAWING THE O RIGINAL APPEAL. HE HAS, HOWEVER, SUBMITTED THAT THE DELAY MAY BE CONDO NED AND THE APPEAL OF THE ASSESSEE MAY BE CONSIDERED ON MERIT. 5. ON THE OTHER HAND, THE LEARNED DR SUBMITTED TH AT THE ASSESSEE PREFERRED APPEAL AGAINST THE IMPUGNED ORDE R DATED 09-01-2002 BEFORE THE TRIBUNAL IN ITA NO.581/AHD/20 02 WHICH WAS WITHDRAWN BY THE ASSESSEE BEFORE THE TRIBUNAL AND T HE APPEAL WAS DISMISSED VIDE ORDER DATED 10-03-2004, THEREFORE, N O FRESH APPEAL COULD BE FILED AGAINST THE SAME IMPUGNED ORDER BEFO RE THE TRIBUNAL. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE M ATERIAL AVAILABLE ON RECORD POINTED OUT BY THE PARTIES. THE RECORD REVEALS THAT THE ASSESSEE PREFERRED APPEAL AGAINST THE IMPUGNED ORDER DATED 09-01-2002 BEFORE THE TRIBUNAL ON 15-06-2009. THUS, THE APPEAL WAS TIME BARRED BY 2648 DAYS FROM THE DATE OF COMMUNICA TION OF THE ORDER APPEALED. THE RECORD FURTHER REVEALS THAT THE IMPUGNED ORDER DATED 09-01-2002 WAS CHALLENGED BEFORE THE TRIBUNAL IN ITA NO.581/AHD/2002 (PB-150). THE ASSESSEE MOVED APPLIC ATION DATED 15-12-2003 (PB-151) BEFORE THE TRIBUNAL STATING TO WITHDRAW THE APPEAL. THE APPEAL OF THE ASSESSEE FILED AGAINST TH E IMPUGNED ORDER WAS THUS DISMISSED AS WITHDRAWN ON THE REQUEST OF T HE ASSESSEE VIDE ORDER DATED 10-03-2004. THE ASSESSEE STATED THAT SI NCE THE ASSESSEE GOT RELIEF FROM THE LEARNED CIT(A) IN THE PROCEEDINGS U/S ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 4 154 OF THE IT ACT VIDE ORDER DATED 17-03-2003 (PB-9 0), THEREFORE, APPEAL WAS WITHDRAWN IN ITA NO.581/AHD/2002. LATER ON, THE ORDER OF THE LEARNED CIT(A) U/S 154 OF THE IT ACT DATED 17-0 3-2003 WAS SET ASIDE BY THE TRIBUNAL AND THE DEPARTMENTAL APPEAL WAS ALLOWED IN ITA NO.2078/AHD/2003 VIDE ORDER DATED 31-03-2008. THE A SSESSEE ALSO PREFERRED MISC. APPLICATION NO.43/AHD/2008 IN ITA N O.581/AHD/2002 SEEKING RECALL OF THE EARLIER ORDER DATED 10-03-200 4 BY WHICH THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN. THE MISC. APPLICATION OF THE ASSESSEE WAS ALSO DISMISSED BY T HE TRIBUNAL VIDE ORDER DATED 15-05-2009 (PB-155). IN THE BACKGROUND OF THESE FACTS NOW WE CONSIDER WHETHER THE ASSESSEE HAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATI ON. AT THE OUTSET, WE MAY NOTE THAT IT IS ADMITTED FACT THAT THE ASSESSEE PREFERRED APPEAL AGAINST THE IMPUGNED ORDER DATED 09-01-2002 AND APP EAL WAS DISMISSED AS WITHDRAWN ON THE REQUEST OF THE ASSESS EE VIDE ORDER DATED 10-03-2004. THE ASSESSEE LATER ON MOVED MISC. APPLICATION NO.43/AHD/2008 AGAINST THE ORDER DATED 10-03-2004 I N ITA NO.581/AHD/2002 AND THE SAID MISC. APPLICATION WAS ALSO DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 15-05-2009. THUS, THE ORDER OF THE TRIBUNAL DISMISSING THE APPEAL OF THE ASSESSEE DATE D 10-03-2004 BECAME FINAL BETWEEN THE PARTIES BECAUSE IT WAS NO MORE CHALLENGED IN FURTHER APPEAL. ON DISPOSAL OF THE APPEAL IN ITA NO.581/AHD/2002, THE IMPUGNED ORDER DATED 09-01-2002 ALSO BECAME FIN AL AND IN LAW THE IMPUGNED ORDER VIRTUALLY CONFIRMED BECAUSE THE ASSESSEE DID NOT AGITATE REMEDY AGAINST THE SAME BEFORE THE TRIBUNAL . THUS, THE IMPUGNED ORDER DATED 09-01-2002 BECAME FINAL AND AS SUCH NO FURTHER APPEAL COULD BE FILED BEFORE THE TRIBUNAL O N THE SAME CAUSE OF ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 5 ACTION IN SUCCESSIVE SECOND APPEAL. THE APPEAL OF T HE ASSESSEE THUS WOULD NOT BE MAINTAINABLE IN THE PRESENT FORM. FURT HER, THE REASONS GIVEN BY THE ASSESSEE FOR WITHDRAWING THE APPEAL AN D FILING THE PRESENT APPEAL ON THE SAME CAUSE OF ACTION HAD BEEN THAT THE ORDER OF THE LEARNED CIT(A) U/S 154 OF THE IT ACT DATED 1 7-03-2003 WAS SET ASIDE BY THE TRIBUNAL IN DEPARTMENTAL APPEAL IN ITA NO.2078/AHD/2003. THE DEPARTMENTAL APPEAL IN ITA NO.2078/AHD/2003 WAS DECIDED IN FAVOUR OF THE REVEN UE DEPARTMENT THROUGH WHICH THE ORDER OF THE LEARNED CIT(A) U/S 1 54 OF THE IT ACT WAS REVERSED BY THE TRIBUNAL VIDE ORDER DATED 31-03 -2008. SINCE, THE DEPARTMENTAL APPEAL PERTAINED TO THE YEAR 2003, THE REFORE, IT IS CLEAR THAT THE DEPARTMENTAL APPEAL WAS PREFERRED IN THE Y EAR 2003 AND ON THE DATE OF FILING OF THE DEPARTMENTAL APPEAL, THE APPEAL OF THE ASSESSEE IN ITA NO.581/AHD/2002 WAS ALSO PENDING. T HE LEARNED COUNSEL FOR THE ASSESSEE ADMITTED DURING THE COURSE OF ARGUMENT THAT THE ASSESSEE WAS AWARE OF THE DEPARTMENTAL APP EAL PENDING AGAINST THE ORDER U/S 154 OF THE IT ACT. SINCE THE DEPARTMENTAL APPEAL WAS PENDING WHEN THE ASSESSEE MOVED APPLICATION FOR WITHDRAWAL OF ITS APPEAL, THEREFORE, THERE WAS NO REASON FOR THE ASSESSEE TO MAKE REQUEST FOR WITHDRAWAL OF ITS APPEAL IN ITA NO.581/ AHD/2002. IT WOULD, THEREFORE, SHOW THAT THE ASSESSEE DESPITE KNOWING T HAT DEPARTMENTAL APPEAL IS PENDING AGAINST THE ORDER U/S 154 OF THE IT ACT, THE ASSESSEE DELIBERATELY AND CONSCIOUSLY MOVED APPLICA TION FOR WITHDRAWAL OF ITS APPEAL IN ITA NO.581/AHD/2001 FIL ED AGAINST THE IMPUGNED ORDER. SUFFICIENT CAUSE WOULD MEAN A CAUS E BEYOND THE CONTROL OF THE ASSESSEE. SUFFICIENT CAUSE MEANS WHI CH PREVENTS A REASONABLE MAN OF ORDINARY PRUDENCE ACTING UNDER NO RMAL ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 6 CIRCUMSTANCES WITHOUT NEGLIGENCE OR INACTION OR WAN T OF BONA FIDE. SINCE THE ASSESSEE, KNOWING FULLY AND CONSCIOUSLY WITHDREW THE APPEAL AGAINST THE IMPUGNED ORDER ON THE DAY WHEN T HE DEPARTMENTAL APPEAL AGAINST THE ORDER U/S 154 OF THE IT ACT WAS PENDING BEFORE THE TRIBUNAL, IT CANNOT BE SAID THAT THE ASSESSEE ACTED BONA FIDE AND WITHOUT ANY NEGLIGENCE. THE ASSESSEE IN THE APPLICA TION FOR WITHDRAWAL SUBMITTED THAT THEY HAVE ACCEPTED THE OR DER OF THE LEARNED CIT(A) U/S 154 OF THE IT ACT DATED 17-03-20 03. THE ACCEPTANCE OF THE ORDER BY THE ASSESSEE IS NOT A BO NA FIDE ACT BECAUSE REVENUE DEPARTMENT HAS EVERY RIGHT TO PREFE R APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LEARNED CIT(A ). ON THE DAY WHEN APPLICATION DATED 15-12-2003 WAS FILED BEFORE THE T RIBUNAL, SUFFICIENT TIME OF ABOUT 9 MONTHS HAS ELAPSED AND DURING THIS PERIOD THE DEPARTMENTAL APPEAL WAS FILED IN THE YEAR 2003 WHIC H WAS WITHIN THE KNOWLEDGE OF THE ASSESSEE. THEREFORE, CONDUCT OF TH E ASSESSEE SHOWS THAT THE ASSESSEE ACTED NEGLIGENTLY AND MADE A REQUEST FOR WITHDRAWAL OF THE APPEAL AGAINST THE IMPUGNED ORDER . THE EXPLANATION OF THE ASSESSEE THUS CANNOT BE ACCEPTED FOR CONDONATION OF DELAY IN THE MATTER. FURTHER, THE ORDER OF THE T RIBUNAL IN DEPARTMENTAL APPEAL AGAINST THE ORDER OF THE LEARNE D CIT(A) U/S 154 OF THE IT ACT IN ITA NO.2078/AHD/2003 IS DATED 31-0 3-2008. THUS, ON THE DATE OF THE ORDER OF THE TRIBUNAL DATED 31-03-2 008, THE ASSESSEE WAS AWARE OF THE FACT THAT ITS EARLIER APPEAL AGAIN ST THE IMPUGNED ORDER WAS DISMISSED AS WITHDRAWN AND THE ORDER OF T HE LEARNED CIT(A) U/S 154 OF THE IT ACT IS REVERSED BY THE TRI BUNAL. NOTHING IS EXPLAINED IN THE AFFIDAVIT AS TO WHY THE ASSESSEE K EPT ON WAITING FOR FILING THE PRESENT APPEAL TILL 15-06-2009. FROM 31- 03-2008 TILL ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 7 15-06-2009, THE ASSESSEE HAS NOT OFFERED ANY EXPLAN ATION AS TO WHAT PREVENTED THE ASSESSEE FROM FILING THE APPEAL ON TH E SAME CAUSE OF ACTION BEFORE THE TRIBUNAL EVEN THOUGH IT WAS NOT M AINTAINABLE IN LAW. CONSIDERING THE ABOVE DISCUSSIONS AND THE MATERIAL ON RECORD, WE ARE OF THE VIEW ONCE THE APPEAL OF THE ASSESSEE AGA INST THE IMPUGNED ORDER HAS REACHED FINALITY ON DISMISSAL OF THE APPEAL IN ITA NO. 581/AHD/2002, THE SECOND APPEAL ON THE SAME CAU SE OF ACTION WOULD NOT BE MAINTAINABLE BEFORE THE TRIBUNAL. EVEN FOR THE SAKE OF ARGUMENT IT MAYBE ASSUMED THAT THE ASSESSEE COULD P REFER SECOND APPEAL ON THE SAME CAUSE OF ACTION BEFORE THE TRIBU NAL, THE ASSESSEE IS NOT ABLE TO EXPLAIN THE DELAY IN FILING THE APPEAL BELATEDLY DUE TO SUFFICIENT CAUSE. IN VIEW OF THE FACTS AND C IRCUMSTANCES NOTED ABOVE, THE REQUEST OF THE ASSESSEE FOR CONDONATION OF DELAY CANNOT BE ACCEPTED. WE, THEREFORE, HOLD THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE IN THE PRESENT FORM AND THE ASSESS EE ALSO FAILED TO EXPLAIN THE DELAY IN FILING THE PRESENT APPEAL. WE, THEREFORE, DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE. 8. IN VIEW OF THE ABOVE FINDING, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 14/10/2011 SD/- SD/- (A. L. GEHLOT) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT/- ITA NO.1954/AHD/2009 UMAKANT LEASING & FINANCE PVT. LTD. VS DCIT, CENT. CIR-2(1), AHMEDABAD 8 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD