Shri Piyushbhai Dhirajlal Shah, Bharuch V. The Asstt. Commissioner of Income Tax, Circle-1, Bharuch

ITA 2285/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2095 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 06-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J K CHANDNANI
• Keywords: Notional interest; Condonation of delay
• Section: 143(3)

Judgement Text

SHRI PIYUSHBHAI DHIRAJLAL SHAH/ ITA NO.2285/AHD/2016/SRT /A.YS.:2012-13 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T. A NO.2285/AHD/2016/SRT / A.YS.:2012-13 SHRI PIYUSHBHAI DHIRAJLAL SHAH, PROP. OF M/S.SONAL ASSOCIATES, 7, SHRI MANGLAM COMPLEX, KASAK CIRCLE, BHARUCH 392 001. PAN: AHXPS 2648Q V S . ASST. COMMISSIONER OF INCOME TAX , CIRCLE-1, BHARUCH. APPELLANT /RESPONDENT /ASSESSEE BY WRITTEN SUBMISSION FILED ON 18.04.2018 /REVENUE BY SHRI J.K.CHANDNANI , SR.DR / DATE OF HEARING: 25 .04 .2018 /PRONOUNCEMENT ON 25 .04.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-3, VADODARA DATED 06.06.2016 FOR THE ASSESSMENT YEAR 2012-13 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. GROUND NO. 1 RELATES TO NOT CONDONING DELAY IN FILING OF APPEAL BY CIT (A). 3. VIDE WRITTEN SUBMISSIONS, IT WAS SUBMITTED THAT THERE WAS DELAY IN FILING OF APPEAL BEFORE CIT (A) BY 22 DAYS. THE REASON FOR THE DELAY IN FILING OF APPEAL BEEN EXPLAINED BY THE ASSESSEE THAT THE APPELLANT WAS TRAVELLING OUTSIDE BHARUCH AND THE APPELLANT RETURNED BACK ON 31.03.2015. THEREAFTER, THE APPELLANT SHRI PIYUSHBHAI DHIRAJLAL SHAH/ ITA NO.2285/AHD/2016/SRT /A.YS.:2012-13 PAGE 2 OF 5 APPROACHED HIS CHARTERED ACCOUNTANT WHO PREPARED THE APPEAL AND DEPOSITED FEES ON 31.03.2015 AND FILED APPEAL BEFORE THE CIT (A) ON 06.04.2015 AT BARODA. THEREFORE, IT WAS CLAIMED THAT DELAY IN FILING OF APPEAL WAS BONA FIDE AND NOTHING WAS GAINED BY DELAYED FILING OF APPEAL. HOWEVER, THE CIT (A) WAS OF THE VIEW THAT REASON GIVEN ARE OF GENERAL IN NATURE AND WITHOUT SUPPORTING ANY EVIDENCES. THERE IS NOTHING ON RECORD TO SHOW THAT THE APPELLANT WAS OUT OF BHARUCH. THEREFORE, IT WAS URGED UPON US TO CONDONE THE DELAY IN FILING OF APPEAL AND APPEAL BE ADMITTED ON MERIT. THE RELIANCE WAS ALSO PLACED ON THE DECISION IN THE CASE OF N. BALAKRISHNAN V. KRISHNAMURTHY (1998) 7 SC 124 (SC) WHEREIN IT WAS OBSERVED THAT CONDONATION OF DELAY IS MATTER OF DISCRETION OF THE COURT. AND COLLECTOR, LAND ACQUISITION, V. MST. KATIJI & OF RS.[1987] 167 ITR 471 (SC)/ [1987] 2SCC 107 FOR HIS SUPPORT. THIS DELAY IS SUPPORTED BY NOTARIZED APPLICATION FILED FOR CONDONATION OF DELAY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. AS FAR AS THE ISSUE OF CONDONATION OF DELAY IS CONCERNED, IT IS SETTLED LAW THAT THE COURT QUASI- JUDICIAL BODIES ARE EMPOWERED TO CONDONE THE DELAY IF THE LITIGANT SATISFIES THE COURT THAT THERE WERE SUFFICIENT REASONS FOR THE AVAILING THE REMEDY AFTER THE EXPIRY OF THE LIMITATION. SUCH A REASONING SHOULD BE TO THE SATISFACTION OF THE COURT. THE EXPRESSION SUFFICIENT CAUSE OR REASON AS PROVIDED IN SUBSECTION (5) OF SECTION 253, SUBSECTION (3) OF SECTION 249 OF THE INCOME TAX ACT 1961 IS USED IN IDENTICAL TERMS IN THE LIMITATION ACT AND THE CPC. SUCH EXPRESSION HAS ALSO BEEN USED IN UNDER SECTION 4 OF THE INCOME TAX ACT 1961 SUCH AS SECTIONS 274, 273, ETC. THE EXPRESSION SUFFICIENT CAUSE WITHIN THE MEANING OF SECTION 5 OF SHRI PIYUSHBHAI DHIRAJLAL SHAH/ ITA NO.2285/AHD/2016/SRT /A.YS.:2012-13 PAGE 3 OF 5 LIMITATION ACT AS WELL AS A SIMILAR OTHER PROVISIONS AND THE AMBIT OF EXERCISE OF POWERS THEREUNDER HAVE BEEN SUBJECT MATTER OF CONSIDERATION BEFORE THE HONOURABLE APEX COURT ON VARIOUS OCCASIONS. IN THE CASE OF THE STATE OF WEST BENGAL VS. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR [1972] SC 749, THE ON THE SUPREME COURT, WHILE CONSIDERING THE SCOPE OF THE EXPRESSION SUFFICIENT CAUSE FOR CONDONATION OF DELAY, HAS HELD THAT THE SAID EXPRESSION SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDE IS IMPUTABLE TO THE PARTY. IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY AIR 1998SC3222, THERE WAS A DELAY OF 883 DAYS IN FILING OF APPLICATION IN SETTING ASIDE THE EX-PARTE DECREE FOR WHICH APPLICATION FOR CONDONATION OF DELAY WAS FILED. THE TRIAL COURT HAVING FOUND THAT SUFFICIENT CAUSE WAS MADE OUT FOR CONDONATION OF DELAY CONDONED THE DELAY. THE HON`BLE SUPREME COURT WHILE RESTORING THE ORDER OF 9. IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A MATTER OF DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATION ACT DOES NOT SAY THAT SUCH A DISCRETION CAN BE EXERCISED ONLY IF THE DELAY IS WITHIN A CERTAIN LIMIT. LENGTH OF DELAY IS NO MATTER, AND ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERION. SOMETIMES DELAY OF THE SHORTEST THE RANGE MAY BE UN-CONDONABLE DUE TO WANT OF ACCEPTABLE EXPLANATION, WHEREAS IN CERTAIN OTHER CASES, DELAY OF VERY LONG-RANGE CAN BE CONDONED AS THE EXPLANATION THEREOF IS SATISFACTORY. ONCE THE COURT ACCEPTS THE EXPLANATION AS SUFFICIENT, IT IS THE RESULT OF POSITIVE EXERCISE OF DISCRETION AND NORMALLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING, MUCH LESS IN REVISIONAL JURISDICTION , UNLESS THE EXERCISE OF DISCRETION WAS WHOLLY ON UNTENABLE GROUNDS OR ARBITRARY OR PERVERSE. BUT IT IS A DIFFERENT MATTER WHEN THE FIRST COURT REFUSES TO CONDONE THE DELAY. IN SUCH CASES, THE SUPERIOR COURT WOULD BE SHRI PIYUSHBHAI DHIRAJLAL SHAH/ ITA NO.2285/AHD/2016/SRT /A.YS.:2012-13 PAGE 4 OF 5 FREE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRESH AND IN ITS OWN FINDING EVEN UNTRAMMELED BY THE CONCLUSION OF THE LOWER COURT. EVERYDAY DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE, WHY NOT EVERY HOURS DELAY, EVERY SECONDS DELAY. THE DOCTRINE MUST APPLIED AN RATIONALE COMMON SENSE PRAGMATIC MANNER. IN THE LIGHT OF ABOVE CITED JUDGEMENTS, IF WE EXAMINED THE FACTS OF THE PRESENT CASE , IT IS APPARENT THAT THE ASSESSEE HAS NOT BEEN VIGILANT IN ITS APPROACH AND HAS NOT FILED ANY EVIDENCE BEFORE CIT (A) OR BEFORE US TO SHOW THAT HE WAS OUT OF BHARUCH ON THE EXPIRY DATE OF FILING OF APPEAL. THE ASSESSEE ALSO CHOSE NOT TO APPEAR THROUGH HIS COUNSEL OR REPRESENTATIVE AND FILED WRITTEN SUBMISSIONS IN TAPAL. THIS APPROACH OF THE ASSESSEE DOES NOT SUPPORT HIS CONDUCT. THUS, THE ASSESSEE WAS NEGLECTED THE INCOME TAX PROCEEDINGS. THE HON`BLE SUPREME COURT IN THE CASE OF N. BALAKRISHNAN (SUPRA) HAS OBSERVED THAT THE LENGTH OF THE DELAY IS IMMATERIAL. THE ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERIA FOR CONDONING THE DELAY. IN A GIVEN CASE AND, DELAY OF THE SHORTEST PERIOD OF TIME MAY BE UN-CONDONABLE DUE TO UNACCEPTABLE EXPLANATION, WHEREAS IN CERTAIN OTHER CASES, DELAY OF A LONG PERIOD CAN BE CONDONED, IF THE EXPLANATION IS SATISFACTORY. IN EVERY CASE OF DELAY, THERE MIGHT BE SOME OMISSIONS OF NEGLIGENCE ON THE PART OF THE ASSESSEE MAXTOR MIND SUCH OMISSIONS/NEGLIGENCE HAS TO BE WEIGHED IN THE LIGHT OF EXIST CIRCUMSTANCES OF EACH CASE. IT WOULD THE NEGLIGENCE OF COMMISSION IS A BY PRODUCT OF A DELIBERATE ATTEMPT WITH MALA-FIDE INTENTION FOR DELAY THE PROCESS OF THE LITIGATION WHICH COULD GIVE SOME BENEFIT TO THE LITIGANT, THEN PROBABLY PROCESS OF LITIGATION WHICH WOULD VIEW SOME BENEFIT WITH THE LITIGANT THEN PROBABLY THAT DELAY WOULD NOT DESERVED TO BE CONDONED. HOWEVER, IF NO MALA-FIDE CAN BE ATTRIBUTED TO THE DELAY, THAT SHRI PIYUSHBHAI DHIRAJLAL SHAH/ ITA NO.2285/AHD/2016/SRT /A.YS.:2012-13 PAGE 5 OF 5 DELAY WILL BE CONDONABLE. THEREFORE, ON THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE CIT (A) WAS RIGHT IN NOT CONDONING THE DELAY AS NO EVIDENCE IN SUPPORT OF HIS EXPLANATION OR CLAIM HAS BEEN ADDUCED BEFORE HIM NOR NEITHER BEFORE US. THUS, THE ASSESSEE HAS NOT BEEN ABLE TO DEMONSTRATE SUFFICIENT REASONS IN THE SHAPE OF CLAIM THAT HE WAS NOT IN BHARUCH ON THE DATE OF LIMITATION OF FILING OF APPEAL BEFORE CIT(A). THEREFORE, WE DO NOT INTERFERE IN THE FINDINGS OF CIT(A), HENCE, THIS GROUNDS OF APPEAL IS DISMISSED. 5. GROUND NO.2 RELATES TO DISALLOWANCE OF RS.1,65,789/- BY COMPUTING NOTIONAL INTEREST. 6. SINCE WE HAVE NOT ALLOWED THE CONDONATION OF DELAY, THIS GROUND BECOMES INFRUCTUOUS AND HENCE BEING NOT DECIDED ON MERIT, ACCORDINGLY TREATED AS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-04-2018. SD/- SSD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED: 25 TH APRIL , 2018 S.GANGADHARA RAO COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT