M/s. Limak Constructions Industry and Trade Inc., Hyderabad V. Asst. Director of I T ( International Taxation)-I, Hyderabad

ITA 1979/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66190 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Right to appeal; Condonation of delay
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA N0S. 1979 & 1980/HYD/2011 ASSESSMENT YEARS: 2003-04 & 2004-05 M/S LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC. HYDERABAD. .... APPELLANT PAN:AAACL 7536 M VS. ASST. DIRECTOR OF INCOME-TAX, HYDERABAD. RESPONDENT APPELLANT BY : SHRI V. RAGHAVENDRA RAO RESPONDENT BY : SMT. NIVEDITA BISWAS DATE OF HEARING : 02-07-2012 DATE OF PRONOUNCEMENT : 31-08-2012 ORDER PER SAKTIJIT DEY, J.M.: THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST SEPARATE ORDERS OF CIT (A)-V, HYDERABAD BOT H DATED 16-9-2011 AND THEY PERTAIN TO THE ASSESSMENT YEARS 2003-04 AND 2004-05. SINCE COMMON ISSUES ARE INVOLVED IN T HESE TWO APPEALS, THESE ARE CLUBBED TOGETHER AND DISPOSE D OF BY THIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS AGAIN ST THE ORDER PASSED BY THE CIT (A) DISMISSING THE APPEAL F ILED BY THE 2 ITA NOS. 1979 AND 1980 OF 2011 LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC.HYD.. ASSESSEE ON THE GROUND OF LIMITATION BY REJECTING APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL. 3. SINCE THE FACTS OF BOTH THESE CASES ARE IDENTIC AL, FOR THE SAKE OF BREVITY, WE DEAL WITH FACTS AS MENTIONED IN ITA NO. 1979/HYD/2011 PERTAINING TO ASSESSMENT YEAR 2003-04 .BRIEFLY THE FACTS ARE THE ASSESSEE IS A COMPANY ENGAGED IN CIVIL CONSTRUCTION WORK. FOR THE ASSESSMENT YEAR UNDER D ISPUTE, THE ADIT (INTL. TAXATION) PASSED AN ORDER U/S 201(1) AN D 201(1A) ON 30-5-2008 BY TREATING THE ASSESSEE AS AN ASSESSEE I N DEFAULT AND RAISED A DEMAND OF RS.14,52,393/- ALONG WITH INTERE ST U/S 201(1A) OF RS.11,40,128. THE ASSESSEE BEING AGGRIEV ED OF THE AFORESAID ORDER FILED AN APPEAL BEFORE THE CIT (A). THE APPEAL WAS FILED BELATEDLY WITH 176 DAYS DELAY. EVEN THOU GH THE ASSESSEE FILED AN APPLICATION PRAYING FOR CONDONAT ION OF THE DELAY, THE CIT (A) REJECTED THE APPLICATION AND DIS MISSED THE APPEAL ON THE GROUND OF LIMITATION BY OBSERVING IN THE FOLLOWING MANNER:- I HAVE CONSIDERED CAREFULLY THE FACTS AND ARGUMENTS . IT IS A SETTLED LAW THAT EACH AND EVERY DAY OF DELAY H AS TO BE SATISFACTORILY EXPLAINED BY THE APPELLANT. IN THIS CASE, THE DELAY IS 176 DAYS. FIRST OF ALL, THE APPELLANT HAS NOT EVEN MENTIONED THE DATE ON WHICH THE IMPUGNED ORDER AND THE RELEVANT RECORD PERTAINING TO TDS WERE HANDED OVER TO THE CA, M/S C. VENKAT KRISHNA & CO. SECONDLY, IT IS CLE ARLY MENTIONED IN THE AFFIDAVIT THAT THE CHARTERED ACCOU NTANTS DID NOT PREPARE THE APPEAL PAPERS AS THE ASSESSMENT ORDER AND THE RECORD GOT MIXED UP IN THEIR PAPERS. GOING BY THE AFOREMENTIONED FACTS, I FIND THAT THIS IS NOT THE C ASE WHERE THE DELAY IN FILING OF APPEAL WAS THERE BECAUSE OF ANY EXTRAORDINARY OR UNFORESEEN CIRCUMSTANCES. FIRSTLY , AS ALREADY POINTED OUT EACH AND EVERY DAY OF DELAY HAS NOT 3 ITA NOS. 1979 AND 1980 OF 2011 LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC.HYD.. BEEN EXPLAINED. SECONDLY THERE WAS CLEAR CUT CAREL ESSNESS AND NEGLIGENCE ON THE PART OF THE APPELLANT COMPANY AS WELL AS THE LEARNED ARS IN NOT KEEPING SUCH IMPORTA NT RECORDS PROPERLY. SUCH CARELESSNESS ON THE PART OF A PROFESSIONAL COMPANY AND MORE IMPORTANTLY ON THE PA RT OF CHARTERED ACCOUNTANTS CANNOT BE CONDONED. THEREFOR E, THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL IS REJECTED. THE LEARNED AR SUBMITTED BEFORE US THAT THE CIT (A) EVEN THOUGH HEARD THE APPEAL ON A NUMBER OF OCCASIONS AND EVEN CALLED FOR REMAND REPORT HE NEVER RAISED THE ISSUE OF DELAYED FILING OF APPEAL AND ASKED THE ASSESSEE TO EXPLAIN THE CAUSE OF DELAY. THE LEARNED AR THEREFORE CONTENDED THAT THE CIT (A) WAS TOTALLY UNJUSTIFIED IN DISMISSING THE APPEAL ON THE GROUND OF DELAY. 4. THE LEARNED DR, ON THE OTHER HAND, STRONGLY SUPP ORTED THE ORDER PASSED BY THE CIT (A). 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE ORDER OF THE CIT (A) THAT THE APPEAL WAS HEARD ON FIVE OCCASIONS. WHEN THE CIT ( A) PROCEEDED FOR HEARING THE APPEAL ON MERIT, THE ASSESSEE WAS U NDER A BELIEF THAT THE DELAY HAS BEEN CONDONED AND THE APPEAL HAS BEEN ADMITTED FOR HEARING ON MERIT. UNDER THESE CIRCUMS TANCES, THE CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPLICAT ION FOR CONDONATION OF DELAY AND DISMISSING THE APPEAL IN L IMINE WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE C AUSE OF DELAY. THE HONBLE SUPREME COURT AS WELL AS HONBLE HIGH C OURTS IN NUMBER OF DECISIONS HELD THAT THE RIGHT TO APPEAL I S A SPECIOUS RIGHT GIVEN UNDER THE STATUTE AND THE EXPRESSION S UFFICIENT CAUSE FOR CONDONATION OF DELAY SHOULD BE CONSTRUED IN A L IBERAL MANNER SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIG ENCE OR 4 ITA NOS. 1979 AND 1980 OF 2011 LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC.HYD.. INACTION OR WANT OF BONAFIDE IS IMPUTABLE TO A PAR TY BECAUSE THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUND BUT BECAUSE IT IS CAP ABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. A LIT IGANT DOES NOT GET BENEFIT BY RESORTING TO DELAY. THEREFORE, EFF ORTS SHOULD ALWAYS BE MADE NOT TO DISMISS THE APPEAL AT THE THR ESHOLD BUT HEAR IT ON MERIT. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTH ERS (167 ITR 471) (SC) HAS OBSERVED THAT WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OT HER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FO R THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BE ING DONE BECAUSE OF A NON-DELIBERATE DELAY. THE HONBLE SUP REME COURT HAS FURTHER HELD THAT THE MAXIM THAT EVERY DAYS DE LAY IS TO BE EXPLAINED IS TOO PEDANTIC A APPROACH. IN VIEW OF THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT AND CONSIDER ING THE FACT THAT THE CIT (A) HAS NOT GIVEN A FAIR OPPORTUNITY T O THE ASSESSEE TO EXPLAIN THE CAUSE OF DELAY IN FILING THE APPEAL, WE DEEM IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF TH E CIT (A) WHO SHALL AFFORD A REASONABLE OPPORTUNITY TO THE ASSESS EE TO EXPLAIN THE DELAY AND THEREAFTER TAKE A DECISION IN THE MAT TER. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 31- 8-2012. SD/- SD /- (CHANDRA POOJARI) ACCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 31 ST AUGUST, 2012. 5 ITA NOS. 1979 AND 1980 OF 2011 LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC.HYD.. COPY TO:- 1) M/S. LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC. 8-2- 823/5/1/1, AVENUE-4, BANJARA HILLS, HYDERABAD. 2) ASST. DIRECTOR OF INCOME-TAX (INTAERNATIONAL TAX ATION)=- I, HYDERABAD. 3) THE CIT (A)-V, HYDERABAD 4) THE CIT CONCERNED, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABA D. JMR* 6 ITA NOS. 1979 AND 1980 OF 2011 LIMAK CONSTRUCTIONS INDUSTRY AND TRADE INC.HYD..