R.Munusamy, Kalpakkam V. ITO Non Corporate Circle 5(5), CHENNAI

ITA 2438/CHNY/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5065 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 05-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN IRS
• Assessee Lawyers: P RANGA RAMANUJAM; K R GANESH C AS
• Keywords: Principle of natural justice; Period of limitation; Time period of passing order; Condonation of delay
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C (SMC) BENCH : CHENNAI . , ! ' [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMB ER ] ./I.T.A. NO. 2438/MDS/2017 / ASSESSMENT YEAR : 2008-2009. SHRI. R. MUNUSAMY, NO.834A, METTU STREET, AYAPAKKAM VILLAGE (POST) KALPAKKAM 603 102. [ PAN AVPPM 5917N ] VS. THE INCOME TAX OFFICER, NON CORPORATE CIRCLE 5(5) CHENNAI 600 006. ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : SHRI. P. RANGA RAMANUJAM AND K.R. GANESH, C.AS /RESPONDENT BY : SHRI. B. SAGADEVAN, IRS, JCIT. /DATE OF HEARING : 03-1-2018 ! /DATE OF PRONOUNCEMENT : 05-1-2018 ' / O R D E R ASSESSEE IN THIS APPEAL ASSAILS AN ORDER DATED 24. 08.2017 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-8, CHENNAI . 2. AMONG THE FIVE GROUNDS RAISED BY THE ASSESSEE, GROU ND NO.2 ASSAILS NON CONDONATION OF NINE DAYS DELAY BY LD. C OMMISSIONER OF ITA NO. 2438/MDS/2017 :- 2 -: INCOME TAX (APPEALS) IN FILING THE APPEAL. THIS G ROUND IS REPRODUCED HEREUNDER:- 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS GROSSLY ERRED IN NOT GRANTING THE CONDONATION F OR SHORT DELAY OF 9 DAYS OCCURRED IN FILING THE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), BY DISMISSING THE APPLICATION AS BARRED BY LIMITATION. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS THEREB Y FAILED TO FOLLOW THE PRINCIPLES OF NATURAL JUSTICE IN DECIDING THE APPEAL. LD. COMMISSIONER OF INCOME TAX (APPEALS) WHILE DISP OSING OF THE APPEAL OF THE ASSESSEE, AFTER REPRODUCING THE WRIT TEN SUBMISSION FILED BY THE ASSESSEE, HELD AS UNDER:- 6 DELAY IN FILING THE APPEAL NOT CONDONED: 6.1 THE ASSESSING OFFICER PASSED THE ORDER U/S 143(3) OF THE IT ACT, 1961 ON 30/3/2016. AS PER FORM NO 35, THE APPELLANT RECEIVED THE ORDER U/ S 143 (3) ON 01.04.2016 THE APPEA I SHOULD HAVE BEEN FILED ON 30/4/2016. THE ASSESSEE FILED THE APPEAL ON 9/5/2016 WITH A DELAY OF 9 DAYS, A LONG WITH PETITION FOR CONDONATION OF DELAY . 6.2.1 IN THE PETITION FOR CONDONATION OF DELAY FILE D ALONG WITH FORM 35 HE APPELLANT STATED ONLY ONE REASON FOR THE DELAY -' THAT THE DELAY OF 9 DAYS HAS BEEN CAUSED D UE TO THE TIME TAKEN FOR APPOINTING OUR REPRESENTATIVES, M/S. PADMANABHAN RAMANI & RAMANAJUM. CHARTERED ACCOUNTANTS AND THEREFORE APPEAL COULD NOT BE FILED WELL WITHIN THE STIPULATED TIME.' 6.2.2 DURING THE COURSE OF THE APPEAL PROCEEDINGS ON 26/7/2017 THE A.R OF THE ASSESSEE FILED AFFIDAVIT REQUESTING FOR CONDONING THE DELAY IN FILING THE AP PEAL IN ITA NO. 2438/MDS/2017 :- 3 -: WHICH HE STATED - 'AFTER A REFERENCE THROUGH A FRIE ND I REQUESTED THE PRESENT AUDITORS, MESSRS. PADMANABHAN RAMANI & RAMANAJUM, CHARTERED ACCOUNTANTS TO FILE T HE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). AS THEY WERE ALSO BUSY AND WAS OUT OF STATION FOR- THE INDIAN BANK STATUTORY AUDIT ASSIGNMENTS DURING THE MONTH OF APRIL, THE APPEAL P APERS COULD BE DRAFTED AND FILED AFTER- A WHILE ON 9 TH MAY, 2016. 6 2.2 THE HON BLE SUPREMC COURT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD . AIR 1962 SC 361 HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITAT ION PROVISION. 6.2.3 IN THE PRESENT CASE, THE FIRST TWO REASONS AD VANCED FOR THE DELAY (1. TIME TAKEN FOR APPOINTING THE CHARTERED ACCOUNT ANTS AND 2. THE CHARTERED ACCOUNTANTS WERE BUSY AND OUT OF STATION FOR THE INDIAN BANK STATUTORY AUDIT ASSIGNM ENTS) ARE NOTHING BUT NEGLIGENCE WHICH COULD HAVE BEEN VERY W ELL AVOIDED BY THE EXERCISE OF DUE CARE AND ATTENTION. RESPECTFULLY FOLLOWING THE ABOVE STATED CASE-LAW, T HERE EXISTS NO SUFFICIENT OR GOOD REASON FOR CONDONING INORDINATE DELAY OF 9 DAYS. HENCE THE DELAY IN FILI NG THE APPEAL IS NOT CONDONED AND THIS APPEAL IS DISMISSED AS BARRED BY LIMITATION. 6.3.1 IN THIS CONTEXT IT IS PERTINENT TO REFER TO R ANKAK & ORS. VS. REWA COALFIELDS LTD. AIR 1962 SC 361 AND JCIT V S. TRACTORS & FARM EQUIPMENTS LTD. (!TAT, CHENNAI-TM) 104 ITO 149 - PARTY HAS TO SHOW REASON FOR DELAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EACH DA Y THEREAFTER 6.3.2 IN [2015] 54 TAXMANN.COM 329 (JAIP UR - TRIB.) K.G.N.M.M.W. EDUCATIONAL RESEARCH & ANALYSIS SOCIETY VS INCOME-TAX OFFICER, JHALAWAR, THE ITAT J AIPUR BENCH HELD - WHERE CHARTERED ACCOUNTANT REPRESENTIN G A SSESSEE-SOCIETY FILED APPEAL BEFORE TRIBUNAL WITH A DELAY OF 347 DAYS TAKING A PLEA THAT HE HAD GONE FOR AUDIT OF A BANK AND IN MEANTIME HIS STAFF FILED PAPERS BELONQ INQ TO ITA NO. 2438/MDS/2017 :- 4 -: ASSESSEE IN RECORD, SINCE DELAY WAS NOT EXPLAINED ON DAY TO DAY BASIS, APPEAL W2.S TO BE DISMISSED BEING BARRED BY LIMITATION. 6.3.2 THE APPEAL SHOULD HAVE BEEN FILED ON 30.04.20 16. HENCE AS PER THE ABOVE SATED CASE- LAWS, THE ASSESS EE HAS TO SHOW REASON FOR DELAY ON 30.04.2016 ( THE LAST DAY OF LIMITATION PERIOD) AND FOR ACH AY THEREAFTER. HOWEVER AS PER THE PETITION FOR CONDONATION OF DELAY THE ASSESSEE DID NOT EXPLAIN THE REASON FOR THE DELAY FROM 30.04.2016 TO 09.05.2016. AS THE ASSESSEE FAILED TO SHOW THE REASON FOR THE DELAY ON THE LAST DAY OF LIMITATION PERIOD AND FOR EACH DAY THEREAFTER, RESPECTFULLY FOLLOWING THE ABOVE STATED CASE- LAW, THE DELAY IN FILING THE APPEAL IS NOT CONDONED AND THIS APPEAL IS DISMISSED AS BARRED BY LIMITATION. WHAT I CAN DISCERN FROM THE ABOVE IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD REFUSED TO CONDONE THE DEL AY OF NINE DAYS AND DISMISSED THE APPEAL OF THE ASSESSEE. BEFORE T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE HAD F ILED AN AFFIDAVIT SEEKING CONDONATION OF DELAY. THE SAID AFFIDAVIT W HICH FORMS A PART OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) CLEARLY SAY THAT ASSESSEES EARLIER CHARTERED ACCOUNTANT HAD WITHDRAWN AND THEREFORE THEY WERE CONSTRAINED TO FIND A NEW AUD ITOR TO REPRESENT THEM RESULTING IN THE DELAY. I FIND THE DELAY NOT TO BE SO HUGE THAT IT COULD NOT BE CONDONED. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, FORMER HAS TO PREVAIL ITA NO. 2438/MDS/2017 :- 5 -: UNLESS THERE ARE COMPELLING REASONS TO SHOW THAT TH E ASSESSEE WAS NEGLIGENT OR HAD WILLFULLY EMPLOYED DELAYING TACT ICS. I THEREFORE DIRECT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONDONE THE DELAY AND ADMIT THE APPEAL OF THE ASSESSEE. LD. C OMMISSIONER OF INCOME TAX (APPEALS) HAS TO DECIDE THE APPEAL ON M ERITS. ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS SE T ASIDE. APPEAL IS REMITTED BACK TO THE FILE OF THE LD. COMMISSIONER O F INCOME TAX (APPEALS) FOR CONSIDERATION AFRESH ON MERITS. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 5TH DAY OF JANUAR Y, 2018, AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER '# / CHENNAI $% / DATED: 5TH JANUARY, 2018 KV %& '()( / COPY TO: 1 . / APPELLANT 3. *+, / CIT(A) 5. (-. / / DR 2. / RESPONDENT 4. * / CIT 6. .01 / GF