P.K.P.N.Spinning Mills (P) LTd., Pallipalayam V. ACIT, Salem

ITA 2404/CHNY/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9146 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2014
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR ERODE SHRI
• Keywords: Reasonable cause; Right to appeal; Condonation of delay
• Section: 263; 63

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 2404/MDS/2014 / ASSESSMENT YEAR :200 9 - 1 0 M/S. P.K.P.N. SPINNING MILLS (P) LTD., 6, BY - PASS ROAD, PALLIPALAYAM 638 006. [PAN: A ABCP5919K ] VS. THE COMMISSIONER OF INCOME TAX , SALEM . ( / AP PELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SRIDHAR , ADVOCATE [ERODE] / RESPONDENT BY : SHRI SUNDAR RAO , CIT / DATE OF HEARING : 1 7 . 0 3 .201 6 / DATE OF P RON OUNCEMENT : 10 . 0 6 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX, SALEM , DATED 2 5 . 0 3 .20 13 RELEVANT TO THE ASSESSMENT YEAR 200 9 - 1 0 PA SSED UNDER SECTION 2 63 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . 2. THE APPEAL OF THE ASSESSEE IS FOUND TO HAVE BEEN FILED LATE BY 11 5 DAYS IN FILING OF APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY IN FILING ITS APPEAL , WHEREI N, IT HAS BEEN STATED AS UNDER: I.T.A. NO . 2404 /M/ 14 2 I AM ONE OF THE DIRECTORS OF THE ABOVE NAMED APPELLANT COMPANY. THE ACCOUNTS OF THE APPELLANT COMPANY AND THE TAX MATTERS HAVE BEEN LOOKED INTO BY SRI R. SHANMUGAM, ACCOUNTS & FINANCE MANAGER, WHO HAS BEEN ASSOCIATED WITH T HE APPELLANT COMPANY FOR THE LAST 15 YEARS. THE PERUSAL OF THE ASSESSMENT ORDER DATED 19.12.2011 SUBSTANTIATES THAT HE ONLY REPRESENTING OUR CASE BEFORE THE ASSESSING OFFICER. REPRESENTATIONS BEFORE THE LEARNED CIT, SALEM IN THE COURSE OF PROCEEDINGS U/S. 263 WERE ALSO MADE BY HIM AND BY MYSELF, AS EVIDENT FROM THE ORDER U/S. 263 DATED 30.03.2014. I REITERATE THAT SRI R. SHANMUGAM HAS BEEN LOOKING AFTER THE ACCOUNTS AND OTHER RELATED MATTERS OF THE APPELLANT COMPANY FOR SEVERAL YEARS. SRI R. SHANMUGAM SUD DENLY, RESIGNED FROM THE APPELLANT COMPANY IN THE MONTH OF MAY, 2014, FOR REASONS KNOWN TO HIM. ON THE RECEIPT OF THE NOTICE DATED 01.09.2014, ON 05.09.2014 COPY ENCLOSED, IT CAME TO LIGHT THAT NO FURTHER ACTION AGAINST THE ORDER OF THE CIT, SALEM DATE D 30.03.2014 WAS TAKEN. ON REALIZING THE ABOVE AND ON THE ADVICE OF THE TAX CONSULTANT, APPEAL AGAINST THE ORDER OF CIT, SALEM DATED 30.03.2014, SERVED ON 02.04.2014, OUGHT TO HAVE BEEN FILED ON OR BEFORE 02.06.2014, IS NOW FILED WITH A DELAY OF 115 DAYS . AS THE DELAY IN NOT FILING THE APPEAL IN TIME IS DUE TO REASONS STATED ABOVE, WHICH REASONS ARE BEYOND OUR CONTROL AND AS THE DELAY IS NOT INTENTIONAL OR WILFUL, IT IS SUBMITTED WITH RESPECT THAT THE DELAY BE CONDONED, APPEAL BE ADMITTED AND JUSTICE BE RENDERED. 3. BY REFERRING TO THE REASONS CONTAINED IN THE AFFIDAVIT, THE LD. COUNSEL FOR THE ASSESSEE HAS PLEADED TO CONDONE THE DELAY AND TO ADMIT THE APPEAL FOR HEARING. 4. ON THE OTHER HAND, THE LD. DR HAS STRONGLY OBJECTED TO CONDONE THE DELAY, SINCE THERE IS NO SUFFICIENT CAUSE TO CONDONE THE DELAY AS NARRATED IN THE AFFIDAVIT. 5. WE HAVE HEARD BOTH SIDES, PERUSED THE AFFIDAVIT FILED BY THE ASSESSEE. ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY SHRI P.K. JAYAGOPAL HAS FILED I.T.A. NO . 2404 /M/ 14 3 THE AFFIDAVIT FOR CONDONING THE DELAY OF 115 DAYS IN FILING THE APPEAL. IT IS A FACT THAT SHRI JAYAGOPAL, DIRECTOR HAS APPEARED BEFORE THE LD. CIT ALONG WITH SRI R. SHANMUGAM, G.M. ACCOUNTS DURING 263 PROCEEDINGS. THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND MUST BE HAVIN G ITS OWN TEAM OF LEGAL ADVISORS /CHARTERED ACCOUNTANTS TO DEAL WITH ACCOUNTS OF THE ASSESSEE . WITHOUT FILING THE APPEAL IN TIME AND SIMPLY STATING THAT SRI SHANMUGAM, ACCOUNTS & FINANCE MANAGER RESIGNED FROM THE ASSESSEE COMPANY, THE ASSESSEE COULD NOT FIL E THE APPEAL CANNOT BE A REASONABLE CAUSE FOR FILING THE BELATED APPEAL. WITH THE LAME EXCUSE , THE ASSESSEE HAS FILED THE BELATED APPEAL IS NOT SUFFICIENT CAUSE TO CONDONE THE DELAY OF 115 DAYS. AS STATED IN THE AFFIDAVIT, SRI JAYAGOPAL, DIRECTOR HAS ACCOM PANIED ITS ACCOUNTS MANAGER DURING 263 PROCEEDINGS BEFORE THE LD. CIT ON 30.03.2014, THE 263 ORDER PASSED BY THE LD. CIT DATED 30.03.2014 WAS SERVED ON THE ASSESSEE ON 02.04.2014 AND THE ACCOUNTS MANAGER WAS ALSO VERY MUCH AVAILABLE, WHEREIN, THE SAID ACCO UNTS MANAGER IS STATED TO HAVE BEEN RESIGNED FROM ASSESSEE COMPANY ONLY IN THE MONTH OF MAY, 2014. JUST BECAUSE THE ACCOUNTS MANAGER RESIGNED FROM ASSESSEE COMPANY, IT CANNOT BE SAID THAT THE ACTIVITIES OF THE ASSESSEE COMPANY BECOME INOPERATIVE. T HE ASSES SEE HAS NOT FILED THE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE INCOME TAX ACT . THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE DICTUM: VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT . IN T HE AFFIDAVIT FILED BY THE ASSESSEE , THE ASSESSEE HAS I.T.A. NO . 2404 /M/ 14 4 MADE BALD STATEMENT. ON GOING THROUGH THE REASONS STATED IN THE AFFIDAVIT , WE FIND THAT THERE EXISTS NO SUFFICIENT CAUSE TO CONDONE THE DELAY. OUR VIEW FIND SUPPORT FROM THE DECISION OF THE HON BLE JURI SDICTIONAL HIGH COURT IN THE CASE OF MADHU DADHA V. ACIT [2009] 317 ITR 458, WHEREIN THE HON BLE HIGH COURT DISMISSED THE APPEAL FILED BY THE ASSESSEE AND CONFIRMED THE ORDER OF THIS TRIBUNAL SINCE THE ASSESSEE HAD NOT TAKEN PROPER PLEA TO SHOW SUFFICIENT CAUSE FOR CONDONING THE DELAY IN FILING THE APPEAL . IN THE PRESENT CASE, THE NEGLIGENT ATTITUDE OF THE ASSESSEE CANNOT BE TAKEN CARE TO PRESERVE THE RIGHT OF APPEAL SINCE THE ASSESSEE HAS SLEPT OVER FOR 115 DAYS AND NOT EXPLAINED SUFFICIENT CAUSE TO CONDONE THE DELAY IN FILING THE APPEAL. SINCE THE AFFIDAVIT FILED BY THE ASSESSEE IS NOT ACCEPTED, THE BELATED APPEAL FILED BY THE ASSESSEE IS NOT ADMITTED FOR HEARING AND FOR FURTHER ADJUDICATION. ACCORDINGLY, T HE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS NOT MAINTAINABLE. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THE 10 TH JUNE , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDI CIAL MEMBER CHENNAI, DATED, THE 10 . 0 6 .201 6 VM/ - I.T.A. NO . 2404 /M/ 14 5 / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.