Raj Telecommunications, Surat V. The Income tax Officer,Ward-3(4), Surat

ITA 216/AHD/2008

• Counselvise Citation: 21620514 RSA 2008
• Duration Of Justice: 3 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 17-01-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 216/ AHD/2008 (ASSESSMENT YEAR 2003-04) M/S. RAJ TELECOMMUNICATIONS, C/202, SUKAN APARTMENTS, NR. GANGESHWAR MAHADEV, ADAJAN, SURAT VS. ITO, WARD 3(4), SURAT PAN/GIR NO. : AADFR0709C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI M K PATEL, AR RESPONDENT BY: SHRI B.L. YADAV, DR DATE OF HEARING: 04.08.2011 DATE OF PRONOUNCEMENT: 26/08/2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) II, SURAT DATED 22.2.2007 FOR THE ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1) THAT THE LEARNED CIT(A)-II, SURAT HAS GRIEVOUSL Y ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT EN GAGED IN PROVIDING BASIC TELECOMMUNICATION SERVICES AND HENC E NOT ENTITLED TO DEDUCTION U/S.80LA(4) OF THE ACT. 2) THAT THE LEARNED CIT(A)-II, SURAT HAS GRIEVOUSL Y ERRED IN NOT FOLLOWING THE ORDER OF I TAT, MUMBAI BENCH REFERRED IN PARA 4 OF ORDER UNDER APPEAL. I.T.A.NO.216 /AHD/2008 2 3. THIS APPEAL WAS FILED LATE AND THE SAME WAS TIME BA RRED BY 261 DAYS. THE ASSESSEE HAS FURNISHED A PETITION FOR CO NDONATION OF DELAY WHICH IS ACCOMPANIED BY AN AFFIDAVIT OF SHRI BHARAT JERAMBHAI GOYANI, A PARTNER OF THE ASSESSEE FIRM AND ALSO ACCOMPANIED B Y AN AFFIDAVIT OF ONE MR. MOHD. SHAKIL ABDUL HAMID HALAWALA, INCOME TAX P RACTITIONER. IN THE PETITION OF THE ASSESSEE FOR CONDONATION OF DEL AY, IT WAS SUBMITTED THAT THE ORDER OF LD. CIT(A) WAS RECEIVED BY SHRI SHAH, CA PERSONALLY ON 02.03.2007. IT WAS ALSO SUBMITTED THAT THE SAME CA SHRI SHAH HAD APPEARED AND ARGUED THE MATER BEFORE THE LD. CIT(A) . IT IS FURTHER STATED IN THE PETITION THAT HE HANDED OVER THE ORDER OF LD . CIT(A) TO THE PARTNER OF THE ASSESSEE FIRM AND THEREAFTER, THERE HAD BEEN CHANGE OF PRACTITIONER AND THE ORDER OF CIT(A) WAS HANDED OVER TO MR. MOHD . SHAKIL ABDUL HAMID HALAWALA, INCOME TAX PRACTITIONER (ITP IN SHO RT) FOR FILING THE APPEAL BEFORE THE TRIBUNAL AND FOR FURTHER PROCEEDI NGS. IT IS ALSO STATED THAT THE CHALLAN OF TRIBUNAL FEE OF RS.10,000/- WAS ALSO PAID ON 27.06.2007 WHEREAS THE DUE DATE FOR FILING THE APPEAL BEFORE T HE TRIBUNAL WAS 02.05.2007 AND IT IS SUBMITTED THAT THE ASSESSEE AC CORDINGLY REMAINED UNDER BONA FIDE BELIEF THAT THE APPEAL MUST HAVE BE EN DULY FILED BY THE CONCERNED ITP. IN THE MONTH OF DECEMBER 2007, THE DEPARTMENT CHASED FOR PAYMENT OF OUTSTANDING DEMAND AND THEN ONLY, TH E ASSESSEE CONTACTED THE ITP MR. MOHD. SHAKIL ABDUL HAMID HALAWALA, ABOU T THE OUTCOME OF THE APPEAL AND THEREAFTER, THE ASSESSEE FIRM WAS IN FORMED BY MR. MOHD. SHAKIL ABDUL HAMID HALAWALA, INCOME TAX PRACTITIONE R THAT THROUGH BONA FIDE MISTAKE AND DUE TO PRESSURE OF PROFESSIONAL WO RK, THE APPEAL COULD NOT BE FILED BY HIM WITHIN TIME AND THEREAFTER, THE PAPERS WERE IMMEDIATELY SENT TO SHRI M K PATEL, ADVOCATE AT AHM EDABAD WHO DRAFTED THE APPEAL IMMEDIATELY AND FILED THE APPEAL ON 17.0 1.2008. I.T.A.NO.216 /AHD/2008 3 4. IN THE COURSE OF ARGUMENTS, LD. COUNSEL FOR THE ASS ESSEE SHRI M K PATEL, ADVOCATE APPEARED BEFORE US AND REITERATED T HE CONTENTION RAISED BY THE ASSESSEE IN THE PETITION FOR CONDONATION OF DELAY. IT WAS POINTED OUT BY THE BENCH THAT IT IS NOT BELIEVABLE THAT BEF ORE CIT(A), THE CA SHRI SAMIR SHAH APPEARED AND FOR FILING THE APPEAL BEFOR E THE TRIBUNAL, THE MATTER WAS HANDED OVER TO ITP MR. MOHD. SHAKIL ABDU L HAMID HALAWALA. THE BENCH WANTED TO KNOW AS TO WHETHER T HIS ITP MR. MOHD. SHAKIL ABDUL HAMID HALAWALA, IS APPEARING BEFORE TH E TRIBUNAL ON REGULAR BASIS AND IN REPLY, IT WAS SUBMITTED BY THE LD. A.R . THAT MR. MOHD. SHAKIL ABDUL HAMID HALAWALA, INCOME TAX PRACTITIONE R IS NOT REGULARLY APPEARING BEFORE THE TRIBUNAL BUT STILL THE DELAY I N FILING OF THE APPEAL WAS BECAUSE OF THE MISTAKE OF THE ITP FOR WHICH THE ASSESSEE SHOULD NOT BE PUNISHED. BENCH ALSO ENQUIRED AS TO WHETHER ANY ACTION WAS TAKEN BY THE ASSESSEE AGAINST MR. HALAWALA FOR HIS NEGLIGENC E IF IT IS CORRECT AND IN REPLY, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT NO ACTION HAS BEEN TAKEN BY THE ASSESSEE AGAINST MR. HALAWAL A. LD. D.R. OF THE REVENUE SUBMITTED THAT THERE IS NO JUSTIFIABLE REAS ON POINTED OUT BY THE ASSESSEE FOR CONDONATION OF DELAY OF 261 DAYS. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. WE FIND THAT THE APPEAL HAS BEEN FILED LATE BY 261 DAYS. IN THE PETITION OF THE ASSESSEE FOR CONDONATION OF DEL AY, THERE IS NO VALID REASON PROVIDED BY THE ASSESSEE JUSTIFYING OR EXPLA INING THE DELAY. IT IS UNBELIEVABLE THAT WHEN A CA WAS APPEARING BEFORE TH E CIT(A) ON BEHALF OF THE ASSESSEE, THE MATTER WAS HANDED OVER TO ITP FOR THE PURPOSE OF FILING APPEAL BEFORE THE TRIBUNAL AND PARTICULARLY WHEN HE IS NOT REGULARLY APPEARING BEFORE THE TRIBUNAL. THERE IS NO BASIS D ISCLOSED IN THE AFFIDAVIT I.T.A.NO.216 /AHD/2008 4 OF SHRI HALAWALA AS TO WHY THE APPEAL COULD NOT BE FILED IN TIME WHEN THE PAPERS WERE STATED TO BE HANDED OVER TO HIM ON 05.0 3.2007 FOR THE PURPOSE OF FILING THE APPEAL BEFORE THE TRIBUNAL. IT IS ALSO VERY SURPRISING THAT FOR THIS NEGLIGENCE OF ITP, NO ACTION HAS BEEN TAKEN BY THE ASSESSEE. THE ASSESSEE COULD HAVE INFORMED THE CONCERNED COMM ISSIONER OF THE DEPARTMENT FOR CANCELLATION OF THE CERTIFICATE OF T HE ITP BUT IT IS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT NO SUC H ACTION HAS BEEN TAKEN BY THE ASSESSEE AGAINST THE ITP. CONSIDERING THE FACTS OF THE PRESENT CASE IN ITS TOTALITY, WE FEEL THAT THIS IS A MAKE BELIEV E STORY CREATED BY THE ASSESSEE TO PUT THE BLAME REGARDING THE DELAY IN FI LING THE APPEAL ON AN ITP BUT THIS DOES NOT APPEAR TO BE A CORRECT FACT A ND HENCE, WE ARE NOT SATISFIED ABOUT THE EXPLANATION OF THE ASSESSEE FOR CONDONATION OF DELAY AND HENCE, WE DECLINE TO CONDONE THE DELAY. IN THE CONDONATION PETITION, THE ASSESSEE STATED THAT IT WAS INFORMED BY MR. HAL AWALA THAT THROUGH BONA FIDE MISTAKE AND DUE TO PRESSURE OF PROFESSION AL WORK, THE APPEAL WAS NOT FILED BY HIM WITHIN THE TIME. IN THE AFFID AVIT OF SHRI HALAWALA, THE REASON GIVEN BY HIM IS DIFFERENT. HE HAS SIMPL Y STATED THAT DUE TO BONA FIDE OMISSION, THE APPEAL COULD NOT BE FILED I N TIME. THERE IS NO MENTION OF ANY PRESSURE OF PROFESSIONAL WORK AND TH ERE IS NO REASON GIVEN REGARDING HIS; BONA FIDE OMISSION OF FILING THE APP EAL TO ESTABLISH THAT IT WAS A BONA FIDE OMISSION ON HIS PART. MERELY A SEL F SERVING AFFIDAVIT OF THE PARTNER OF THE ASSESSEE AND OF AN ITP AGAINST W HOM NO ACTION HAS BEEN TAKEN BY THE ASSESSEE AND NOTHING HAS BEEN SHOWN RE GARDING THE PRESSURE OF PROFESSIONAL WORK ETC, THE EXPLANATION DOES NOT INSPIRE CONFIDENCE AND RELIABILITY. WE, THEREFORE, DECLINE TO CONDONE THE DELAY. I.T.A.NO.216 /AHD/2008 5 6. SINCE THE APPEAL WAS FILED DELAYED AND THE SAME IS TIME BARRED BY 261 DAYS AND THE PETITION OF THE ASSESSEE FOR CONDO NATION OF DELAY HAS BEEN REJECTED, THE APPEAL OF THE ASSESSEE IS LIABLE TO BE REJECTED AS UNADMITTED BEING TIME BARRED. WE ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 AUG., 2011 . SD/- SD/- (BHAVNESH SAINI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 26/08/2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE /TRUE COPY/ 1. DATE OF DICTATION. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER.. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..