M/s. Forbes & Co. (Tea Brokers), Nilgiris V. ACIT, Ooty

ITA 2273/CHNY/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6158 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAM IRS
• Assessee Lawyers: V S JAYAKUMAR
• Keywords: Assessment record
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , ! ' # $ %& , ' $(% $) BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENTAND SHRI VIKAS AWASTHY, JUDICIAL MEMBER $! ./ ITA NO. 2273/MDS/2013 ' * +* / ASSESSMENT YEAR : 2007-08 M/S FORBES & CO. (TEA BROKERS), POST BOX NO.19, LORD HOBART ROAD, COONOOR, THE NILGIRIS, TAMIL NADU 643101. PAN : AAAFF 6102 E V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I(1), OOTY. (&-/ APPELLANT) (/0&-/ RESPONDENT) &- 1 $ / APPELLANT BY : SHRI V.S. JAYAKUMAR, ADVOCATE /0&- 1 $ / RESPONDENT BY : SHRI GURU BHASHYAM, IRS, JCIT $ 2 1 34 / DATE OF HEARING : 22 ND MAY, 2014 56+ 1 34 / DATE OF PRONOUNCEMENT : 22 ND MAY, 2014 / O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEV ANT ASSESSMENT YEAR IS 2007-08. THE APPEAL IS DIRECTED AGAINST THE REVISION ORDER PASSED UNDER SECTION 263 OF THE INCO ME-TAX ACT, 1961, BY THE COMMISSIONER OF INCOME TAX-II AT COIMB ATORE. THE ASSESSMENT IN THIS CASE HAS BEEN COMPLETED UNDER SE CTION 143(3). 2 I.T.A. NO. 2273/MDS/13 2. THE ASSESSEE IN THIS CASE IS A PARTNERSHIP FIRM HAVING ITS OFFICE AT COONOOR, OOTY, NILGIRIS. THE ASSESSEE-FI RM HAS FILED ITS RETURN OF INCOME FOR A LOSS OF ` 21,72,514/-. ON PERUSAL OF THE ASSESSMENT RECORDS, THE COMMISSIONER OF INCOME TAX HELD THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTERESTS OF REVENUE AND REVISED THE ASSESSMENT ORDER UNDER SECT ION 263. THE COMMISSIONER OF INCOME TAX HAS SET ASIDE THE SU BJECT ASSESSMENT ORDER AND REMITTED BACK THE FILE TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER AFTER EXAM INING THE SPECIFIC OBSERVATION AND DIRECTION MADE BY THE COMM ISSIONER OF INCOME TAX IN HIS REVISION ORDER. IT IS AGAINST TH E SAID REVISION ORDER THAT THE ASSESSEE HAS COME IN APPEAL BEFORE US. 3. THERE IS A DELAY OF 567 DAYS IN FILING THIS APPE AL BEFORE US. AN AFFIDAVIT IS FILED BY THE ASSESSEE BEFORE US, SU PPORTING THE PETITION FILED FOR CONDONING THE DELAY CAUSED IN FI LING THE APPEAL. THE CONTENTS OF THE SAID AFFIDAVIT ARE REPRODUCED B ELOW:- 1. I, MR. PAULOSE JOSEPH, SON OF LATE MAJ. GEN. P.T. JOSEPH, AGED ABOUT 67 YEARS, HAVING MY OFFICE AT SEBROF HOUSE, WELLINGDON ISLAND, COCHIN- 682003, DO HEREBY SOLEMNLY AND SINCERELY AFFIRM AND STATE AS FOLLOWS:- 2. THE APPELLANT IS A PARTNERSHIP FIRM HAVING ITS OFFICE AT COONOOR LOOKED AFTER ONLY BY EXECUTIVE-IN - 3 I.T.A. NO. 2273/MDS/13 CHARGE MR. THOMAS MATHEWS AND I AM THE PARTNER AND DIRECTOR REPRESENTING M/S FORBES EWART & FIGGIS P LTD. HEREIN AND AS SUCH I AM FULLY ACQUAINTED WITH THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. I STATE THAT THE ABOVE APPEAL IS BEING FILED BELATEDLY AFTER A DELAY OF 567 DAYS FROM THE DATE O F SERVICE OF THE IMPUGNED ORDER OF THE CIT PASSED UNDER SEC.263 OF THE INCOME-TAX ACT, 1961. 4. THE APPELLANT FIRM FILED ITS RETURN OF INCOME ADMITTING NET LOSS OF ` 21,72,514/-. THE ASSESSING OFFICER ACCEPTED THE RETURN OF INCOME AND SENT AN INTIMATION UNDER SEC 143(1) OF THE ACT AND THE CASE WAS TAKEN UP FOR SCRUTINY ASSESSMENT AND AN ORDER UNDER SEC.143(3) WAS PASSED ON 02.12.2009. 5. THE CIT INVOKING JURISDICTION UNDER SEC 263 SOUGHT TO DISTURB THE ASSESSMENT ORDER DATED 02/12/2009 IN THE IMPUGNED PROCEEDINGS. THE CIT OBSERVED THAT THE SAID ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE AND SET ASIDE THE SAME WITH CERTAIN SPECIFIC OBSERVATIONS DIRECTING THE ASSESSI NG OFFICER TO PASS THE ORDER ACCORDINGLY. THE SAID OR DER OF THE CIT WAS SERVED ON THE APPELLANT ON 09.04.2012. THE APPEAL AGAINST THE SAID ORDER LIES BEFORE THE TRIBUNAL WITHIN 60 DAYS THEREON. THE APPEAL WAS ACTUALLY FILED AFTER A DELAY OF 567 DAYS AS PER THE DEFECT NOTICE ISSUED BY THE REGISTRY. 6. I SUBMIT THAT THE ORDER WAS RECEIVED IN OUR OFFICE BY OUR ACCOUNTANT MR. J. DEVARAJ, WHO IS IN- CHARGE OF RECEIVING TAPALS FROM VARIOUS GOVERNMENTAL DEPARTMENTS AND HE IS ALSO IN CHARGE OF INCOME TAX MATTERS AT OUR COONOOR OFFICE. SINCE HE HAD MISPLACED THE ORDER OF THE COMMISSIONER OF INCOME TAX PASSED U/S.263 AND THE SAME WAS IRRETRIEVABLY LOST, THE APPELLANT WAS NOT AWARE OF THE SAID ORDER TO TAKE THE ADVICE OF THE TAX ADVISORS. DURING LAST WEEK OF DEC.2013 WHEN THE OLD RECORDS WERE SOUGHT TO BE REARRANGED IN OUR OFFICE, THE IMPUGNED ORDER IN ORIGINAL WAS FOUND AMIDST OTHER 4 I.T.A. NO. 2273/MDS/13 RECORDS. IMMEDIATELY THE CHARTERED ACCOUNTANT AND ADVOCATE WERE CONTACTED AND THE APPEAL PAPERS WERE PREPARED AND FILED BEFORE THIS HONBLE TRIBUNA L. 7. I SUBMIT THAT THE DELAY IN FILING THE APPEAL HA S ARISEN DUE TO THE ABOVE CIRCUMSTANCES AND THE SAME IS NOT DELIBERATE OR WANTON. 8. IN THIS BACKGROUND OF FACTS THAT I HUMBLY PRAY THAT THIS HONBLE TRIBUNAL MAY BE PLEASED TO CONDONE THE DELAY OF 567 DAYS AND THE APPEAL BE ADMITTED AND ADJUDICATED ON MERITS. 4. WE HEARD SHRI V.S. JAYAKUMAR, THE LEARNED COUNSE L APPEARING FOR THE ASSESSEE AND SHRI GURU BHASHYAM, THE LEARNED JOINT COMMISSIONER OF INCOME TAX APPEARING FOR THE REVENUE, ON THE GROUND OF CONDONING THE DELAY. 5. THE REASON POINTED OUT BY THE ASSESSEE FOR THE D ELAY IS THAT THE REVISION ORDER OF THE COMMISSIONER OF INCOME TA X WAS RECEIVED BY THE ASSESSEES ACCOUNTANT AT COONOOR, WHO MISPLA CED THE SAID ORDER AND COULD NOT COMMUNICATE WITH ASSESSEE SO TH AT THEY COULD NOT FILE THE APPEAL IN TIME. IT IS THE CASE OF THE ASSESSEE THAT IT WAS NOT AWARE OF THE SAID REVISION ORDER AND COULD NOT TAKE ADVICE OF ITS TAX ADVISORS. IN THE LAST WEEK OF DECEMBER, 2013, WHEN THE OLD RECORDS WERE REARRANGED IN ASSESSEES OFFICE, THE S AID REVISION ORDER PASSED BY THE COMMISSIONER OF INCOME TAX WAS FOUND AMONG OTHER RECORDS. IT IS ONLY THEN, THE ASSESSEE CAME TO KNOW ABOUT THE REVISION ORDER AND THEREAFTER IMMEDIATELY FILED THE APPEAL. 5 I.T.A. NO. 2273/MDS/13 6. WE HAVE CAREFULLY GONE THROUGH THE REASONS EXPLA INED BY THE ASSESSEE FOR THE DELAY CAUSED IN FILING THIS AP PEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS STATED THAT ITS ACCOUNT ANT MR. J. DEVARAJ IS IN-CHARGE OF TAPALS AND USUALLY RECEIVES LETTERS FROM VARIOUS GOVERNMENT DEPARTMENTS. IT IS THE CASE OF THE ASSESSEE THAT THE SAID MR. J. DEVARAJ HAD MISPLACED THE REVI SION ORDER AND THEREFORE LOST IT AS IF IRRETRIEVABLY. BUT, THERE IS NOTHING ON RECORD TO SHOW THAT THE SAID MR. J. DEVARAJ HAS MISPLACED ANY OTHER COMMUNICATION RECEIVED FROM ANY OTHER GOVERNMENT DE PARTMENT DURING THE SAID LONG PERIOD OF MORE THAN 1-1/2 YEAR S. IT LOOKS AS IF THE IMPUGNED REVISION ORDER ALONE WAS MISPLACED BY THE SAID MR. J. DEVARAJ. IT IS ALSO THE CASE OF THE ASSESSEE THAT ITS DIRECTORS STAY IN COCHIN AWAY FROM THE COONOOR OFFICE AND THEREFORE, THEY COULD NOT KEEP IN FREQUENT TOUCH WITH COONOOR OFFICE SO THAT THE MATTER COULD HAVE COME TO THEIR NOTICE. IS IT A PLAUSIBLE EXPLA NATION THAT THE DIRECTORS OF THE ASSESSEE HAVE NOT VISITED THE COON OOR OFFICE FOR THE LONG PERIOD OF 1-1/2 YEARS AND THEY HAVE NOT DE ALT WITH ANY OTHER BUSINESS MATTERS OF THE ASSESSEE-COMPANY? IS THERE ANY CASE FOR THE ASSESSEE THAT OTHER THAN IMPUGNED REVISION ORDE R, NO OTHER LETTER WAS RECEIVED FROM THE INCOME-TAX DEPARTMENT? 6 I.T.A. NO. 2273/MDS/13 7. ALL THESE LEGITIMATE DOUBTS ARE STILL REMAINING OPEN AND NOT AT ALL CLARIFIED OR CLEARED BY THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL AFTER GET TING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN CONSEQUENCE OF THE REVISION ORDER. IT IS ONLY AFTER GETTING TH E REVISED ASSESSMENT ORDER THAT THE ASSESSEE SPRUNG INTO ACTION TO FILE THE BELATED APPEAL BEFORE THE TRIBUNAL. 8. ASSESSEE HAS STATED IN THE AFFIDAVIT THAT IT WAS IN THE LAST WEEK OF DECEMBER, 2013 THAT THE IMPUGNED REVISION O RDER WAS RECOVERED BY THE ASSESSEE. THE RECORDS SHOW THAT T HE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL ON 27.12. 2013. THE LAST WEEK OF DECEMBER, 2013 IS THE PERIOD FROM 25 TH TO 31 ST OF DECEMBER, 2013. 25 TH DECEMBER WAS CHRISTMAS DAY. ALL OFFICES REMAINED CLOSED. IT MEANS THE ASSESSEE OBTAINED TH E ORDER ON 26 TH OF DECEMBER AND WITHIN 24 HOURS, FILED THE APPEAL A T CHENNAI, BY HAND, ON 27 TH OF DECEMBER, 2013. THIS SUPERSONIC SPEED IN FILIN G THE APPEAL BEFORE THE TRIBUNAL IS INEXPLICABLE. 9. IT IS A SETTLED LAW THAT AN ASSESSEE USUALLY DOE S NOT DERIVE ANY ADVANTAGE BY NOT FILING AN APPEAL IN TIME AND T HE CASE OF CONDONING THE DELAY IN FILING AN APPEAL SHOULD ALWA YS BE CONSIDERED VERY SYMPATHETICALLY AND IN ALL FAIRNESS. BUT, IT IS ALSO EQUALLY 7 I.T.A. NO. 2273/MDS/13 IMPORTANT TO SEE THAT THE ASSESSEE WAS REASONABLY D ILIGENT IN MATTERS RELATING TO FILING OF APPEAL. THE DELAY MU ST BE REASONABLY EXPLAINED. IN THE PRESENT CASE, THE ASSESSEE HAS N OT EXPLAINED THE REASONS FOR DELAY IN A CONVINCING AND SATISFACTORY MANNER BEFORE THE TRIBUNAL. WHEN THE TRIBUNAL IS NOT AT ALL SATI SFIED ON THE REASONS SUBMITTED BY THE ASSESSEE FOR THE DELAY CAUSED IN F ILING THE APPEAL, IT IS NOT PERMISSIBLE IN LAW TO CONDONE THE DELAY O NLY ON THE GROUND OF FAIRNESS. 10. THEREFORE, WE ARE CONSTRAINED NOT TO CONDONE TH E DELAY OF 567 DAYS CAUSED IN FILING THIS APPEAL BEFORE US. T HE APPEAL IS NOT ADMITTED FOR HEARING AND IT IS DISMISSED IN LIMINE ON THE GROUND OF LIMITATION. 11. BEFORE PARTING AWAY WITH THIS CASE, WE MAKE IT CLEAR THAT THE DOORS OF REMEDY IS NOT CLOSED FOR THE ASSESSEE FORE VER. EVEN NOW, THE ASSESSEE IS WELL WITHIN ITS STATUTORY RIGHT TO FILE APPEAL BEFORE THE APPROPRIATE AUTHORITIES AGAINST THE REVISED ASSESSM ENT ORDER PASSED BY THE ASSESSING OFFICER IN PURSUANCE OF THE REVISION ORDER PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECT ION 263. 12. IN RESULT, THIS APPEAL FILED BY THE ASSESSEE IS DISMISSED IN LIMINE ON THE GROUND OF LIMITATION. 8 I.T.A. NO. 2273/MDS/13 ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 22 ND OF MAY, 2014 AT CHENNAI. SD/- SD/- ( # $ %& ) ( ... ) (VIKAS AWASTHY) (DR. O.K. NARAYANAN) ' $(% /JUDICIAL MEMBER /VICE-PRESIDENT /CHENNAI, I(! /DATED, THE 22 ND MAY, 2014. KRI. (J 1 /'3K# L#+3 /COPY TO: 1. &- /APPELLANT 2. /0&- /RESPONDENT 3. 2 M3 /CIT-II, COIMBATORE 4. # NO /'3' /DR 5. O* P /GF.