MAHESH PANDURNG NAIK, Thane V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, Thane

ITA 253/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4795 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 10-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: PRAYAG JHA AR S
• Keywords: Recovery proceedings; Additional evidence; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI PAWAN SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 253/MUM/2018 ASSESSMENT YEAR: 2011 - 12 MAHESH PANDURANG NAIK FLAT NO. 301, B - WING, 3 RD FLOOR, FESTIVAL COMPLEX, AC HOLE ROAD, NALLASOPARA (E) THANE. VS. ACIT, CIRCLE - 4, THANE 6 TH , FLOOR, ASHAR I.T. PARK, ROAD 16Z WAGLE INDL. ESTATE, THANE - 400604. PAN NO. ADQPN4963L APPELLANT RESPONDENT ASSESSEE BY : MR. PRATEEK JHA & MR. PRAYAG JHA , AR S REVENUE BY : MR. RAJESH KUMAR YADAV, DR DATE OF HEARING : 25 /07/2018 DATE OF PRONOUNCEMENT : 18/10/2018 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE . THE RELEVANT ASSESSMENT YEAR IS 2011 - 12 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 [IN SHORT CIT(A) ], THANE AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT 1961, (THE ACT). 2 . THERE HAS BEEN A DELAY OF 614 DAYS ON THE PART OF THE ASSESSEE IN FILING APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 06.01.2018 STATING : MAHESH PANDURNAG ITA NO. 253/MUM/2018 2 I MAHESH PANDURANG NAIK S/O PANDURANG SHIVRAM NAIK AGED 51 YEARS, RESIDING AT 306 - B WING, ASHISH APARTMENTS, NEAR SHANKAR MANDIR, BHAYANDAR (W), THANE - 401 101 HAVING PAN ADQPN4963L, DO HEREBY STATE AND DECLARE ON SOLEMN AFFIRMATION AS FOLLOWS: - THAT THE APPELLATE ORDER OF THE AY 2011 - 12 AGAINST WHICH I HAVE PREFERRED AN APPEAL TO HON. ITAT WAS PASSED ON 02/03/2016, AND WAS DISPATCHED BY POST TO MY ADDRESS WHICH WAS UNFORTUNATELY RECEIVED BY MY FRIENDS SON AND WAS NEVER GIVEN TO ME BY HIM AS HE INADVERTENTLY FAILED TO REMEMBER TO FORWARD THAT TO ME. I SAY THAT IN JULY 2017 I SUBMITTED A REQUEST TO STAY OF RECOVERY PROCEEDINGS OF DISPUTE DEMAND FOR THE AY 2011 - 12 TO THE ASSESSING OFFICER, ACIT - 4 TAKING THE STAND THAT MY APPEAL IS PENDING BEFORE HON. CIT(A) - 3 FOR THE SAID AY. I SAY THAT ONLY IN DECEMBE R, 2017 I WAS INFORMED BY THE ASSESSING OFFICER WHEN MY BANK ACCOUNTS WAS ATTACHED BY HIM THAT THE APPEAL FOR THE AY 2011 - 12 WAS DISMISSED BY THE HON CIT(A) - 3, BEFORE THAT I WAS NOT AWARE ABOUT THE DISMISSAL OF APPEAL. I SAY THAT AFTER I WAS INFORMED ABOU T THE DISMISSAL OF APPEAL I APPLIED TO THE CIT(A) - 3 TO PROVIDE THE CERTIFIED COPY OF THE APPELLATE ORDER FOR FILING OF APPEAL BEFORE THE HON. ITAT. UNDER THE CIRCUMSTANCES THE DELAY IN FILING OF APPEAL BEFORE THE ITAT WAS NOT DUE TO ANY CARELESSNESS AND WA S BEYOND THE CONTROL OF THE DEPONENT AS THE DEPONENT WAS UNDER PERCEPTION THAT THE APPEAL BEFORE CIT(A) - 3 IS STILL PENDING. THE AFFIDAVIT IS REQUIRED TO BE SUBMITTED TO THE HON. ITAT TO BRING FORTH THE FACTS OF THE CASE AND TO EXPLAIN THE DELAY IN FILING O F APPEAL BEFORE THE ITAT. SOLEMNLY AFFIRMED AT MUMBAI THIS 6 TH DAY OF JANUARY, 2018. MAHESH PANDURNAG ITA NO. 253/MUM/2018 3 THE ASSESSEE VIDE LETTER DATED 05.01.2018 FURTHER SUBMITS THAT UNDER THE CIRCUMSTANCES, THE DELAY IN FILING OF APPEAL BEFORE THE TRIBUNAL WAS NOT DUE TO ANY CARELESSNESS AND IT WAS BEYOND THE CONTROL OF THE ASSESSEE AS HE WAS UNDER BELIEF THAT THE APPEAL BEFORE THE LD. CIT(A) IS STILL PENDING. IT IS STATED THAT THE REASON FOR DELAY WAS NOT CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALAFIDES ON THE PART OF THE ASSES SEE NOR ANY DILATORY TACTICS NOR DELIBERATE INACTION. THE ASSESSEE, THEREFORE, SUBMITS THAT THE DELAY IN FILING APPEAL BEFORE THE TRIBUNAL BE CONDONED SO THAT JUSTICE CAN BE DONE TO THE FACTS OF THE CASE. 3. IN SUPPORT OF HIS CONTENTIONS THAT THE DELAY IN FILING APPEAL BEFORE THE TRIBUNAL BE CONDONED, THE LD. COUNSEL OF THE ASSESSEE RELIES ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN COLLECTOR (L. A.) V . MST KATIJI & ORS [1987] 2 SCC 107 AND THE ORDER OF THE TRIBUNAL DATED 18.03.2016 IN M/S LAHOTI OVERSEAS LTD. V. DCIT (ITA NO. 3786/MUM/2012 FOR AY 2002 - 03). THE LD. COUNSEL FILES A COPY OF THE ABOVE DECISIONS. ON THE OTHER HAND, THE LD. DR RELIES ON THE ORDER OF THE TRIBUNAL ON KUNAL SURANA V. ITO (2013) 36 TAXMANN.COM 319 (MUMBAI - TRIB) . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN BELOW. AN EXAMINATION OF THE AFFIDAVIT FILED BY THE ASSESSEE AND EXTRACTED AT PARA 2 HEREINBEFORE INDICATES THAT THE NATURE AND S OURCE OF KNOWLEDGE HAS NOT BEEN DISCLOSED WITH SUFFICIENT PARTICULARITY BY THE DEPONENT (THE ASSESSEE). HE COULD HAVE MENTIONED THE NAME OF HIS FRIENDS SON. HE COULD HAVE MENTIONED THE DATE IN THE MONTH OF JULY AND MAHESH PANDURNAG ITA NO. 253/MUM/2018 4 DECEMBER 2017 REFERRED BY HIM. THE DEPON ENT (ASSESSEE) HAS NOT DONE SO. IN THE CASE OF SUCKWINDER PAL BIPAN KUMAR V. STATE OF PUNJAB, AIR 1982 SC 65, THE HONBLE SUPREME COURT HAS EMPHASIZED REGARDING DISCLOSURE OF SOURCE OF INFORMATION OF AFFIDAVIT THAT THE NATURE AND SOURCE OF KNOWLEDGE IS TO BE DISCLOSED WITH SUFFICIENT PARTICULARITIES. AFFIDAVITS WILL NOT BE ONE AS REQUIRED BY LA W IF THE ABOVE THINGS ARE NOT THERE. IN THE INSTANT CASE THE ASSESSEE HAS NOT DISCLOSED WITH SUFFICIENT PARTICULARITY THE NATURE AND SOURCE OF KNOWLEDGE. THEREBY , THE OTHER SIDE IS PRECLUDED TO VERIFY IT AND MAKE AN EFFECTIVE ANSWER. 4.1 LET US NOW DISCUSS THE CASE - LAWS RELIED ON BY BOTH SIDES. IN THE CASE OF M/S LAHOTI OVERSEAS LTD . (SUPRA), RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE, THERE WAS A DELAY OF 219 1 DAYS IN FILING APPEAL BEFORE THE TRIBUNAL. THE PLEA OF THE ASSESSEE WAS THAT THE CONCERNED EMPLOYEE, WHO WAS HANDLING THE TAX MATTER LEFT THE ASSESSEE COMPANY AND DUE TO INADVERTENT MISTAKE, THE PAPERS AND DOCUMENTS, RELATED TO APPEAL REMAINED TO BE HAND ED OVER, WHICH CAUSED THE DELAY. THE TRIBUNAL, RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN MST KATIJI & ORS (SUPRA), N. BALAKRISHNAN V. M. KRISHNAMURTHY (1998) 7 SCC 123 (SC) CONDONED THE ABOVE DELAY OF 2191 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN MST KATIJI & ORS (SUPRA), THE PRINCIPLES OF VALUATION WAS DISMISSED AS TIME BARRED BEING 4 DAYS BEYOND TIME BY REJECTING AN APPLICATION FOR CONDONATION OF DELAY. THE HONBLE SUPREME COURT, MAHESH PANDURNAG ITA NO. 253/MUM/2018 5 SETTING ASIDE THE ORDER OF THE HIGH COURT DISMISSING THE APPEAL BEFORE IT AS TIME BARRED, HELD : 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CON DONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTAN TIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. 5. THERE IS NO PR ESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. IN THE CASE OF KUNAL SURANA (SUPRA), RELIED ON BY THE LD. DR, THE TRIBUNAL HAS HELD THAT ENTERTAIN ING APPLICATION OF ADDITIONAL EVIDENCE PENDING ADJUDICATION ON APPLICATION FOR CONDONATION OF DELAY, DOES NOT GIVE ANY AUTOMATIC RIGHT OF CONDONATION OF DELAY TO ASSESSEE; RATHER SAID ORDER CAN BE SAID T O BE WITHOUT JURISDICTION AND IS REQUIRED TO BE TREAT ED AS NON - EST. MAHESH PANDURNAG ITA NO. 253/MUM/2018 6 4.2 AT THIS JUNCTURE, WE REFER TO THE JUDGMENT OF THE HONBLE SUPREME COURT IN ORIENTAL AROMA CHEMICAL INDUSTRIES LTD. V. GUJARAT INDUSTRIAL DEVELOPMENT CORPN. [2010] 5 SCC 459, WHEREIN THE LEGAL POSITION RELATING TO CONDONATION OF DELAY H AS BEEN EXAMINED, THE DECISION IN KATIJI (SUPRA) HAS BEEN DISCUSSED AND BROAD PRINCIPLES FOR ADJUDICATING THE ISSUE OF CONDONATION OF DELAY HAS BEEN LAID DOWN IN PARAS 14 & 15 AS UNDER: '14. WE HAVE CONSIDERED THE RESPECTIVE SUBMISSIONS. THE LAW OF LIMITATION IS FOUNDED ON PUBLIC POLICY. THE LEGISLATURE DOES NOT PRESCRIBE LIMITATION WITH THE OBJECT OF DESTROYING THE RIGHTS OF THE PARTIES BUT TO ENSURE THAT THEY DO NOT RESORT TO DILATORY TACTICS AND SEEK REMEDY WITHOUT DELAY. THE IDEA IS THAT EVERY LE GAL REMEDY MUST BE KEPT ALIVE FOR A PERIOD FIXED BY THE LEGISLATURE. TO PUT IT DIFFERENTLY, THE LAW OF LIMITATION PRESCRIBES A PERIOD WITHIN WHICH LEGAL REMEDY CAN BE AVAILED FOR REDRESS OF THE LEGAL INJURY. AT THE SAME TIME, THE COURTS ARE BESTOWED WITH T HE POWER TO CONDONE THE DELAY, IF SUFFICIENT CAUSE IS SHOWN FOR NOT AVAILING THE REMEDY WITHIN THE STIPULATED TIME. 15. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED IN SECTION 5 OF THE INDIAN LIMITATION ACT, 1963 AND SIMILAR OTHER STATUTES IS ELASTIC ENOUGH TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE. ALTHOUGH, NO HARD AND FAST RULE CAN BE LAID DOWN IN DEALING WITH THE APPLICATIONS FOR CONDONATION OF DELAY, THIS COURT HAS JUSTIFIABLY ADVOCATED ADOPTION OF A LIBERAL APPROACH IN CONDONING THE DELAY OF SHORT DURATION AND A STRICTER APPROACH WHERE THE DELAY IS INORDINATE - COLLECTOR (L.A.) V. KATIJI N. [1987] 2 SCC 107, N. BALAKRISHNAN V. M. KRISHNAMURTHY [1998] 7 SCC 123 AND VEDABAI V. SHANTARAM BABURAO PATIL [20 01] 9 SCC 106. 4.3 FURTHER IN H. DOHIL CONSTRUCTIONS COMPANY PRIVATE LIMITED V. NAHAR EXPORTS LIMITED , REPORTED IN 2015 1 SCC 680, THE HON'BLE MAHESH PANDURNAG ITA NO. 253/MUM/2018 7 SUPREME COURT, AFTER CONSIDERING ITS DECISION IN ESHA B HATTACHARJEE V. RAGHUNATHPUR NAFAR ACADEMY , REPORTED IN (2013) 12 SCC 649 AT PARAGRAPH NO.23, HELD AS FOLLOWS: 23. WE MAY ALSO USEFULLY REFER TO THE RECENT DECISION OF THIS COURT IN ESHA BHATTACHARJE E [ESHA BHATTACHARJEE V. RAGHUNATHPUR NAFAR ACADEMY , REPORTED IN [2013] 12 SCC 649, WHERE SEVERAL PRINCIPLES WERE CULLED OUT TO BE KEPT IN MIND WHILE DEALING WITH SUCH APPLICATIONS FOR CONDONATION OF DELAY. PRINCIPLES (IV), (V), (VIII), (IX) AND (X) OF PARA 21 CAN BE USEFULLY REFERRED TO, WHICH READ AS UND ER: (SCC PAGES 658 - 59): 21.4(IV) NO PRESUMPTION CAN BE ATTACHED TO DELIBERATE CAUSATION OF DELAY BUT, GROSS NEGLIGENCE ON THE PART OF THE COUNSEL OR LITIGANT IS TO BE TAKEN NOTE OF. 21.5. (V) LACK OF BONA FIDES IMPUTABLE TO A PARTY SEEKING CONDONATION OF DELAY IS A SIGNIFICANT AND RELEVANT FACT. 21.8. (VIII) THERE IS A DISTINCTION BETWEEN INORDINATE DELAY AND A DELAY OF SHORT DURATION OR FEW DAYS, TO THE FORMER DOCTRINE OF PREJUDICE IS ATTRACTED WHEREAS TO THE LATTER IT MAY NOT BE ATTRACTED. THAT APART, TH E FIRST ONE WARRANTS STRICT APPROACH WHEREAS THE SECOND CALLS FOR A LIBERAL DELINEATION. 21.9 (IX) THE CONDUCT, BEHAVIOUR AND ATTITUDE OF A PARTY RELATING TO ITS INACTION OR NEGLIGENCE ARE RELEVANT FACTORS TO BE TAKEN INTO CONSIDERATION. IT IS SO AS THE FU NDAMENTAL PRINCIPLE IS THAT THE COURTS ARE REQUIRED TO WEIGHT THE SCALE OF BALANCE OF JUSTICE IN RESPECT OF BOTH PARTIES AND THE SAID PRINCIPLE CANNOT BE GIVEN A TOTAL GO - BY IN THE NAME OF LIBERAL APPROACH. 21.10. (X) IF THE EXPLANATION OFFERED IS CONCOCTE D OR THE GROUNDS URGED IN THE APPLICATION ARE FANCIFUL, THE COURTS SHOULD BE VIGILANT NOT TO EXPOSE THE OTHER SIDE UNNECESSARILY TO FACE SUCH A LITIGATION. MAHESH PANDURNAG ITA NO. 253/MUM/2018 8 4.4 UNDER SECTION 253 OF THE ACT, APPEALS HAVE TO BE FILED BEFORE THE TRIBUNAL, WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF A COPY OF THE ORDER OF THE COMMISSIONER (APPEALS). FOR CONDONING THE DELAY IN FILING THE APPEAL, IT MUST BE PROVED BEYOND DOUBT THAT THE ASSESSEE WAS DILIGENT AND NOT GUILTY OF NEGLIGENCE WHATSOEVER. DUE DILIGENCE AND CAUTION ARE TH E ESSENTIAL REQUIREMENTS. AN EXAMINATION OF THE AFFIDAVIT AT PARA 4 AGAINST THE BACKDROP OF THE RATIO LAID DOWN IN THE DECISIONS RENDERED BY THE HONBLE SUPREME COURT EXTRACTED AT PARA 4. 2 AND 4. 3 HEREINBEFORE, LEAD US TO THE CONCLUSION THAT THE DELAY IN F ILING THE APPEAL TO THE APPELLATE TRIBUNAL COULD NOT BE CONDONED. 5. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/10/2018. SD/ - SD/ - (PAWAN SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 18/10/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI