The Executive officer, Etawah V. A.C.I.T. (TDS), Agra

ITA 227/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0500 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 11 month(s) 30 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2012

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 227, 228 & 229/AGRA/2012 ASSTT. YEAR : 2007-08, 2008-09 & 2009-10 THE EXECUTIVE OFFICER, VS. A.C.I.T. (TDS), NAGAR PALIKA PARISHAD, AGRA. ETAWAH (U.P.) (TAN : AGRN 10356 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVIN GARGH, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 07.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 11.01.2013 ORDER PER BHAVNESH SAINI, J.M.: ALL THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST THE COMMON ORDER OF LD. CIT(A)-II, AGRA DATED 19.07.2011 FOR THE ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10 (F.Y. 2006-07, 2007-08 AND 2008-09) U/S. 20 6C READ WITH SECTION 201(1)/201(1A) OF THE IT ACT. 2. THE ASSESSEE IN COLUMN NO. 9 OF THE APPEAL PAPER S STATED 01.09.2011 AS THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST . HOWEVER, ALL THE APPEALS ARE FILED IN THE OFFICE OF THE TRIBUNAL ON 17.05.2012. THEREFORE, ALL THE APPEALS ARE STATED TO BE TIME BARRED BY 198 DAYS. ITA NO. 227, 228 & 229/AGRA/2012 2 3. THE COMMON APPLICATION DATED 02.01.2013 IS FILED IN ALL THE APPEALS FOR CONDONATION OF DELAY BY SHRI VIVEK SWAROOP AGARWAL. IT IS STATED IN THE APPLICATION FOR CONDONATION OF DELAY THAT SHRI VIVE K SWAROOP AGARWAL, ADVOCATE OF THE ASSESSEE GAVE THE OPINION TO THE EXECUTIVE O FFICER, NAGAR PALIKA PARISHAD, ETAWAH FOR NOT FILING THE SECOND APPEAL BEFORE THE TRIBUNAL AS NO POSSIBILITY OF RELIEF IN TAX IS APPEARING. SUBSEQUENTLY, PENALTY W AS ALSO IMPOSED UPON THE ASSESSEE U/S. 271CA OF THE IT ACT. SHRI VIVEK SWARO OP AGARWAL, ADVOCATE MET SHRI NAVIN GARGH, ADVOCATE OF AGRA ON 14.05.2012 IN CONNECTION WITH THE DISCUSSION IN APPEAL FIXED BEFORE THE TRIBUNAL ON 1 6.05.2012 IN THE MATTER OF ANOTHER ASSESSEE, MAHESH CHAND CONTRACTOR, ETAWAH. ON 14.05.2012, SHRI NAVIN GARGH, ADVOCATE OF AGRA, WHILE DISCUSSING THE PENAL TY IMPOSED U/S. 271CA OF THE ABOVE YEARS OF NAGAR PALIKA PARISHAD, ETAWAH AFTER GOING THROUGH THE RECORD, ADVISED SHRI VIVEK SWAROOP AGARWAL OF STRONG POSSIB ILITY OF FURTHER RELIEF IN THE MATTER IN ISSUE OF THE ASSESSEE ON THE BASIS OF SOM E ORDER OF ITAT, NAGPUR BENCH. ACCORDINGLY, PRESENT APPEALS WERE PREPARED AND WERE FILED BY THE ASSESSEE. THE OPINION OF SHRI VIVEK SWAROOP AGARWAL, ADVOCATE AND HIS AFFIDAVIT ARE FILED IN SUPPORT OF APPLICATION FILED BY SHRI VIVEK SWAROOP AGARWAL, ADVOCATE. 4. THE LD. COUNSEL FOR THE ASSESSEE RELYING UPON TH E AVERMENTS OF ABOVE APPLICATION FOR CONDONATION OF DELAY SUBMITTED THAT THERE IS DELAY IN FILING THE ITA NO. 227, 228 & 229/AGRA/2012 3 ABOVE APPEALS DUE TO WRONG ADVICE GIVEN BY SHRI VIV EK SWAROOP AGARWAL, ADVOCATE. THEREFORE, THERE IS NO NEGLIGENCE ON THE PART OF THE ASSESSEE AND PRAGMATIC VIEW MAY BE TAKEN FOR CONDONATION OF DELA Y. HE HAS RELIED UPON THE FOLLOWING DECISIONS : (I). AVERA T & D INDIA LTD. VS. JCIT, 287 ITR 555 (MAD) (II). ITA NO. 519/AGR./2008 (ITAT, AGRA), AWASTHI TRADERS VS. CIT (III). ITO VS. PRABHULAL SAHU, 99 TTJ 177 (ITAT JO DHPUR) (IV). TRADE TAX REVISION NO. 816 OF 2006 (ALLAHABAD HIGH COURT) M/S. P.I. INDUSTRIES LTD. VS. CTT. 5. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN ANY REASONABLE CAUSE FOR NOT PRESENTING THE APPEALS WITHIN THE PERIOD OF LIMITATION AND RELIED UPON THE ORDER OF ITAT, CHENN AI BENCH IN THE CASE OF JCIT VS. TRACTORS AND FARMS EQUIPMENTS LTD., 10 ITD 149, IN WHICH IT WAS HELD THAT THE DELAY WAS DUE TO NEGLIGENCE AND INACTION ON THE PAR T OF THE ASSESSEE. THEREFORE, THE DELAY WAS NOT CONDONED. HE HAS ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT REPORTED IN AIR 1962 (SC) 361. 6. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES ON THE QUESTION OF CONDONATION OF DELAY IN FILING THE APPEALS BEYOND T HE PERIOD OF LIMITATION. THE DATE OF SERVICE OF THE IMPUGNED ORDER AND THE DATE OF FI LING OF APPEAL BEFORE THE TRIBUNAL AND DELAY IN FILING THE APPEALS BY 198 DAY S HAVE NOT BEEN DISPUTED BEFORE US. THE APPLICATION FOR CONDONATION OF DELAY IS NOT FILED BY THE ASSESSEE/APPELLANT. ITA NO. 227, 228 & 229/AGRA/2012 4 THE APPLICATION FOR CONDONATION OF DELAY IS FILED B Y SHRI VIVEK SWAROOP AGARWAL, ADVOCATE. IT WOULD, THEREFORE, SHOW THAT THE ASSESS EE HAS ACCEPTED THE ADVICE GIVEN BY HIS COUNSEL THAT THE ASSESSEE HAS NO CASE FOR FI LING THE APPEALS BEFORE THE TRIBUNAL. NOTHING IS EXPLAINED THROUGH ANY EVIDENCE OR MATERIAL HOW THE ASSESSEE WAS LATER ON SATISFIED THAT HE HAS A GOOD CASE FOR FILING THE APPEAL BEFORE THE TRIBUNAL. THE PRESENT APPLICATION IS FILED BY SHRI VIVEK SWAROOP AGARWAL, ADVOCATE FOR CONDONATION OF DELAY AND IT IS ALSO NO T EXPLAINED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD WHETHER SUCH APPLICA TION IS FILED WITH THE AUTHORITY OF ASSESSEE / APPELLANT, I.E., EXECUTIVE OFFICER OF NAGAR PALIKA PARISHAD, ETAWAH. THUS, THE APPLICATION ITSELF COULD NOT BE TAKEN INT O CONSIDERATION WITHOUT HAVING AUTHORITY FROM THE SIDE OF ASSESSEE / APPELLANT. EV EN OTHERWISE, THE AVERMENTS OF PRESENT APPLICATION FOR CONDONATION OF DELAY WOULD NOT DISCLOSE ANY SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEALS WITHIN THE PER IOD OF LIMITATION. IT IS CLEAR FROM THE CONTENTS OF THE APPLICATION FOR CONDONATION OF DELAY THAT THE ASSESSEE WAS SATISFIED WITH THE ADVICE OF SHRI VIVEK SWAROOP AGA RWAL, ADVOCATE THAT THERE IS NO POSSIBILITY OF ANY RELIEF ON THE ISSUE FROM THE TRI BUNAL. THEREFORE, THE ASSESSEE DID NOT PREFER TO FILE ANY APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE NEVER OBTAINED ANY SECOND OPINION AGAINST ADVICE OF SHRI VIVEK SWAROOP AGARWAL, ADVOCATE. SHRI VIVEK SWAROOP AGARWAL, ADVOCATE OF HIS OWN MET SHRI NAVIN GARGH, ADVOCATE AT AGRA IN CONNECTION WITH THE CASE OF OTHER ASSESSEE SHRI MAHESH CHAND CONTRACTOR OR ON THE PENALTY MATTER U/S. 271CA OF NAGAR PALIKA PARISHAD, ETAWAH. THE ITA NO. 227, 228 & 229/AGRA/2012 5 ASSESSEE NEVER GAVE ANY AUTHORITY TO SHRI VIVEK SWA ROOP AGARWAL, ADVOCATE TO MEET ANY ADVOCATE AT AGRA IN CONNECTION WITH THE MA TTER IN ISSUE PENDING IN APPEAL BEFORE US. SHRI VIVEK SWAROOP AGARWAL, ADVOCATE, TH US EXCEEDED HIS BRIEF AND OF HIS OWN DISCUSSED THE MATTER WITH SHRI NAVIN GARGH, ADVOCATE AT AGRA WHO HAS ADVISED HIM THAT THERE WAS STRONG POSSIBILITY OF FU RTHER RELIEF IN THE CASE OF ASSESSEE INVOLVED IN THE PRESENT APPEALS. SHRI VIVEK SWAROOP AGARWAL, ADVOCATE HIMSELF GAVE OPINION TO THE ASSESSEE NOT TO PREFER ANY APPE AL BEFORE THE TRIBUNAL AND SHRI VIVEK SWAROOP AGARWAL AND THE ASSESSEE KEPT ON SLEE PING OVER THE MATTER SINCE OCTOBER, 2011 WHEN SUCH ADVICE WAS GIVEN. THEREFORE , THERE WAS NO REASON FOR SHRI VIVEK SWAROOP AGARWAL, ADVOCATE TO DISCUSS THE SAME MATTER WITH SHRI NAVIN GARGH, ADVOCATE ON BEHALF OF THE ASSESSEE. TH US, THE ASSESSEE HAS NEVER SHOWN ANY ACTION TO TAKE UP THE MATTER IN ISSUE IN APPEAL BEFORE THE TRIBUNAL. THE CONDUCT OF SHRI VIVEK SWAROOP AGARWAL, ADVOCATE IN DISCUSSING THE MATTER WITH SHRI NAVIN GARGH, ADVOCATE OF HIS OWN IS HIGHLY SUS PECTED AND WITHOUT REASONS AND WITHOUT HAVING ANY AUTHORITY GIVEN BY THE ASSES SEE IN THIS REGARD. THE COUNSEL CANNOT DISCUSS ANY BRIEF OF THE LITIGANT WITH OTHER ADVOCATE WITHOUT HAVING ANY AUTHORITY FROM HIS CLIENT / LITIGANT. THE ASSESSEE THUS NEVER FILED ANY APPLICATION FOR CONDONATION OF DELAY IN THE MATTER PERSONALLY AND N O MATERIAL EVIDENCE IS PRODUCED BEFORE US BY THE ASSESSEE HIMSELF TO SUPPORT THE CO NTENTION OF SHRI VIVEK SWAROOP AGARWAL, ADVOCATE. IT, THEREFORE, APPEARS THAT IT I S ONLY WHEN SHRI NAVIN GARGH CITED THE DECISION OF ITAT, NAGPUR BENCH, PRESENT A PPEALS HAVE BEEN FILED. IT ITA NO. 227, 228 & 229/AGRA/2012 6 WOULD, THEREFORE, PROVE THAT THE ASSESSEE (EXECUTIV E OFFICER OF NAGAR PALIKA PARISHAD, ETAWAH) NEVER WANTED TO FILE ANY APPEAL B EFORE THE TRIBUNAL ON THE MATTER IN ISSUE AND IT IS FILED ONLY WHEN FURTHER A DVICE HAS BEEN GIVEN BY SHRI NAVIN GARGH, ADVOCATE WHO WAS ALSO NOT HAVING ANY A UTHORITY ON BEHALF OF THE ASSESSEE TO DEAL WITH THE MATER AT THAT TIME ON THE MATTER IN ISSUE. THE CONDUCT OF THE ASSESSEE IN NOT TAKING UP THE MATTER IN APPEAL BEFORE THE TRIBUNAL AT THE INITIAL STAGE WOULD SHOW THAT THE ASSESSEE ACCEPTED THE ORD ER OF LD. CIT(A) IN TOTO AND NEVER WANTED TO PREFER ANY FURTHER APPEAL. THEREFOR E, PRESENT APPLICATION WOULD NOT DISCLOSE ANY SUFFICIENT CAUSE FOR NOT FILING THE AP PEALS WITHIN THE PERIOD OF LIMITATION. MERELY THAT SOME COUNSEL REFERRED TO SO ME ORDER OF THE TRIBUNAL IN FUTURE WOULD NOT GIVE RISE TO OCCASION TO PROVE THA T THE REASON WAS SUFFICIENT FOR CONDONATION OF DELAY IN THE MATTER BECAUSE THE LAW IS CHANGING DAY BY DAY, AS AT DIFFERENT LEVELS, THE PROPOSITION OF LAW IS CONSIDE RED IN THE LIGHT OF THE FACTS OF THE CASE. NOTHING IS EXPLAINED THAT ON THE FACTS AND CI RCUMSTANCES OF THE CASE, THE DECISION OF NAGPUR BENCH WOULD HAVE BEEN APPLICABLE . MERELY BECAUSE THE COUNSEL FOR ASSESSEE WAS ADVISED SUBSEQUENTLY BY AN OTHER COUNSEL THAT THE ASSESSEE WOULD HAVE GOOD CASE, WOULD NOT DISCLOSE SUFFICIENT CAUSE TO EXPLAIN THE DELAY IN NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITAT ION. IT WOULD ALSO SHOW THAT THE ASSESSEE NEVER MADE ANY ATTEMPT TO GET ANY SECOND O PINION ON THE MATTER IN ISSUE ARISING OUT OF THE ORDER OF THE LD. CIT(A) AND THE ASSESSEE NEVER CONTACTED SHRI NAVIN GARGH, ADVOCATE TO GIVE ANY SECOND OPINION IN THE MATTER. FROM THE ITA NO. 227, 228 & 229/AGRA/2012 7 EXPLANATION OF SHRI VIVEK SWAROOP AGARWAL, ADVOCATE , IT APPEARS THAT HE HIMSELF WAS TAKING INTEREST ON THE MATTER OF HIS OWN WITHOU T ANY AUTHORITY FROM THE SIDE OF THE ASSESSEE TO DEAL FURTHER WITH THE MATTER BECAUS E ONCE HE HAS ADVISED THE ASSESSEE NOT TO PREFER ANY APPEAL BEFORE THE TRIBUN AL, HE WOULD BE CEASED TO BE ADVOCATE OF THE ASSESSEE IN RESPECT OF THE MATTER I N ISSUE ARISING OUT OF THE ORDER OF THE LD. CIT(A). THUS, IT APPEARS FROM THE ABOVE DIS CUSSION THAT EVERYTHING IS COOKED UP LATER ON ON THE BASIS OF SOME ORDER OF NA GPUR BENCH OF ITAT, WHICH MAY OR MAY NOT APPLY TO THE FACTS OF THE CASE. THER EFORE, IT IS AN AFTERTHOUGHT STORY MADE UP BY SHRI VIVEK SWAROOP AGARWAL, ADVOCATE FOR FILING THE APPEALS BEFORE THE TRIBUNAL, OTHERWISE THE ASSESSEE WAS NOT INTERE STED IN FILING THE APPEALS BEFORE THE TRIBUNAL. HONBLE SUPREME COURT RECENTLY IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL AND OTHERS VS. LIVING MEDIA IND IA LTD. AND ANOTHER, 348 ITR 7 (SC) HELD AS UNDER : HELD, DISMISSING THE APPLICATIONS, THE DEPARTMENT HAD ITS ELF MENTIONED IN ITS AFFIDAVIT AND WAS AWARE OF THE DAT E OF THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT AS SEPTEMBER 1 1, 2009. EVEN, ACCORDING TO THE DEPONENT, ITS COUNSEL HAD APPLIED FOR THE CERTIFIED COPY OF THE JUDGMENT ONLY ON JANUARY 8, 2010, AND T HE COPY WAS RECEIVED BY THE DEPARTMENT ON THE VERY SAME DAY. TH ERE WAS NO EXPLANATION FOR NOT APPLYING FOR CERTIFIED COPY OF THE JUDGMENT ON SEPTEMBER 11, 2009, OR AT LEAST WITHIN A REASONABLE TIME. THE FACT REMAINS THAT THE CERTIFIED COPY WAS APPLIED FOR ONL Y ON JANUARY 8, 2010, I.E., AFTER A PERIOD OF NEARLY FOUR MONTHS. N EITHER THE DEPARTMENT NOR THE PERSON IN-CHARGE HAD FILED AN EX PLANATION FOR NOT APPLYING FOR THE CERTIFIED COPY WITHIN THE PRESCRIB ED PERIOD. THE OTHER DATES MENTIONED IN THE AFFIDAVIT CLEARLY SHOWED THA T THERE WAS DELAY AT EVERY STAGE AND THERE WAS NO EXPLANATION AS TO WHY SUCH DELAY HAD ITA NO. 227, 228 & 229/AGRA/2012 8 OCCASIONED. THE DEPARTMENT OR THE PERSON CONCERNED HAD NOT EVINCED DILIGENCE IN PROSECUTING THE MATTER TO THE COURT BY TAKING APPROPRIATE STEPS. THE PERSONS CONCERNED WERE WELL AWARE OR CON VERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETI TION IN THE SUPREME COURT. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE E XPLANATION, THE DELAY COULD NOT BE CONDONED MECHANICALLY MERELY BEC AUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT WAS A PARTY BEFORE THE COURT. THOUGH IN A MATTER OF CONDONATION OF DELAY W HEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA FIDE, A LIBERAL CONCESSION HAD TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, IN THE FACTS AND CIRCUMSTANCES, THE CLAIM ON ACCOUNT OF IM PERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES COULD NOT BE ACCEPTED IN VIEW OF THE MODERN T ECHNOLOGIES BEING USED AND AVAILABLE. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, THE DEPARTMENT HAD FAI LED TO GIVE ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. BY THE COURT : UNLESS GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES HAVE REASONABLE AND ACCEPTABL E EXPLANATION FOR THE DELAY AND THERE WAS BONA FIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FO R SEVERAL MONTHS OR YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED- TAPE IN THE PROCESS. GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENC E AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERY-ONE UNDER THE SAME LIGHT AND SHOULD BE SWIRLE D FOR THE BENEFIT OF A FEW. THE LAW OF LIMITATION BINDS EVERYBODY INC LUDING THE GOVERNMENT. THE ASSESSEE IS EXECUTIVE OFFICER OF NAGAR PALIKA P ARISHAD, ETAWAH AND IS BOUND BY LEGAL NORMS AND SUCH INACTION OR NEGLIGENCE IN N OT FILING THE APPEALS BEFORE THE TRIBUNAL SHALL HAVE TO BE CONSIDERED IN THE LIGHT O F PARAMETERS LAID DOWN BY HONBLE SUPREME COURT IN THE ABOVE CASE. THE DECISI ONS CITED BY THE LD. COUNSEL ITA NO. 227, 228 & 229/AGRA/2012 9 FOR THE ASSESSEE WOULD NOT SUPPORT THE CASE OF THE ASSESSEE IN VIEW OF THE FACTS AND CIRCUMSTANCES MENTIONED ABOVE. 7. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY SUFFICIENT CAUSE DISCLOSED FOR CONDONATION OF DELAY IN FILING THE AP PEALS BEFORE THE TRIBUNAL. THUS, THE APPEALS OF THE ASSESSEE ARE TREATED TIME BARRED AND ARE, ACCORDINGLY, DISMISSED IN LIMINE. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED BEING TIME BARRED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY