Bhagwanjibhai Bhovanbhai Patel, Kolhapur V. ITO, Kolhapur

ITA 237/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49939 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-07-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 17-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Reasonable cause; Condonation of delay
• Section: 54B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 237/PN/2009 : A.Y. 2002-03 BHAGWANJIBHAI B PATEL SHAHUPURI 556/E VYAPARI PETH, KOLHAPUR PAN ADDPP 4411A APPELLANT VS. I.T.O. WARD 2(2) KOLHAPUR RESPONDENT APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SMT. ANN KAPTHUAMA ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- KOLHAPUR DATED 20-1-2009 FOR A .Y. 2002-03 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED CIT(A) KOLHAPUR WAS NOT JUSTIFIED IN DISMISSING THE APPEAL AS NOT MAINTAINA BLE SINCE THE APPELLANT HAD SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE APPELLANT IS ENTITLED TO DEDUCTION U/S 54B IN RESPECT OF INVESTMENT MADE BY HIM IN AGRICULTURAL LANDS FROM THE ADVANCES RECEIVED AGAINST THE TRANSF ER OF AGRICULTURAL LANDS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ASSESSEE DENIES ITS LIABILITY TO PAY INTEREST U/S 234A/234B AND 234C OF THE ACT. 2 ITA NO. 237/PN/2009 BHAGWANJIBHAI PATEL A.Y. 2002-03 2. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S 54B OF THE ACT IN RESPECT OF INVESTME NT MADE BY THE ASSESSEE IN AGRICULTURAL LANDS. THE MATTER WAS CARRIED IN APPEAL BEFORE THE FIRST APPELLATE AUTHOR ITY WHO HAS DISMISSED THE APPEAL ON ACCOUNT OF DELAY. 3. THE STAND OF THE ASSESSEE IS THAT THE ASSESSEE W AS UNDER BONAFIDE IMPRESSION THAT NO PROSECUTION WAS LAUNCHED AND HENCE APPEAL WAS NOT PREFERRED. ACCOR DING TO THE LEARNED AR THE ASSESSEE WAS UNDER IMPRESSION THAT IN CASE PROSECUTION IS NOT LAUNCHED, APPEAL IS NOT REQUIRED TO BE FILED BEFORE THE CIT(A). HOWEVER, SUBSEQUENTL Y IT WAS FOUND BY THE ASSESSEE THAT THE PROSECUTION HAS BEEN LAUNCHED AND CONDONATION OF DELAY WAS TRIED TO BE CONVINCED ON THE GROUND THAT THE DELAY IN FILING TH E APPEAL BE CONDONED FOR THE ABOVE SAID REASON I.E. PROSECUT ION CONTRARY TO THE UNDERSTANDING OF THE ASSESSEE IS TH E BASIS FOR CONDONATION OF DELAY. HOWEVER, DURING THE COUR SE OF HEARING, IT WAS FOUND THAT PROSECUTION WAS LAUNCHED BUT IT WAS DROPPED SUBSEQUENTLY. SO, THE ASSESSEE TRIED T O CONVINCE THE DELAY IN FILING THE APPEAL SINCE PROSE CUTION WAS CONTRARY TO UNDERSTANDING OR OTHERWISE. WITHO UT PREJUDICE TO THE MERITS OF LAUNCHING OR OTHERWISE T O PROSECUTE, IT IS SETTLED POSITION THAT WHEN THE PRO SECUTION LAUNCHED HAS BEEN DROPPED, SO THE ASSESSEE HAS NO P RIMA 3 ITA NO. 237/PN/2009 BHAGWANJIBHAI PATEL A.Y. 2002-03 FACIE REASON IN EXISTENCE FOR CONDONATION OF DELAY. MOREOVER, THE ASSESSEE HAS ALREADY TAKEN A CONSCIOU S DECISION NOT TO FILE AN APPEAL IN CASE PROSECUTION IS NOT LAUNCHED. IN THIS SITUATION WE FIND THAT THERE IS NO REASONABLE CAUSE IN EXISTENCE FOR FILING THE BELATE D APPEAL BEFORE THE CIT(A) WHO WAS JUSTIFIED IN DISMISSING T HE APPEAL ON ACCOUNT OF DELAY CONDONATION, WHICH NEEDS NO INTERFERENCE FROM OUR SIDE. SINCE WE ARE DISMISSIN G THE APPEAL ON TECHNICAL GROUND, WE ARE REFRAINING TO CO MMENT ON MERITS OF THE ISSUE AT HAND. IN THE RESULT, THE APPEAL IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 15 TH JULY 2011 SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 15 TH JULY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)- II PUNE 4. THE CIT III PUNE 5. THE D.R, ITAT PUNE BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL