Shri Raghavbhai Karsanbhai Gabani, Dist.Bhavnagar V. The Income tax Officer,Ward-2(3), Bhavnagar

ITA 2684/AHD/2008

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1716 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 29-07-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NIMISH VAYAWALA
• Keywords: Period of limitation; Time period of passing order; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.2684/AHD/2008 A. Y.: 2004-05 RAGHAVBHAI KARSANBHAI GABANI, OPP. NARI KANYASHALA NAVAPURA, NARI, DIST BHAVNAGAR VS THE INCOME TAX OFFICER, WARD 2(3), AAYAKAR BHAVAN, NR. JASONATH CHOWK, NAKU BAUG, BHAVNAGAR PA NO. AHGPG 1132 N (APPELLANT) (RESPONDENT) APPELLANT BY SHRI NIMISH VAYAWALA, AR RESPONDENT BY SHRI MUDIT NAGPAL, SR. DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XX , AHMEDABAD DATED 03 RD JANUARY, 2008 FOR ASSESSMENT YEAR 2004-05. 2. ACCORDING TO PARA 9 OF FORM NO.36 THE DATE OF CO MMUNICATION OF THE ORDER APPEALED AGAINST IS MENTIONED AS 22-03-20 08. HOWEVER, THE APPEAL IS FILED IN THE OFFICE OF THE TRIBUNAL O N 29-7-2008. ACCORDING TO OFFICE, THE APPEAL IS TIME BARRED BY 6 9 DAYS. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY ALONG WITH APPEAL PAPERS STATING THEREIN THAT THE IMPUGNED ORDER WAS SERVED ON HIS FAMILY MEMBERS AND THE SAID ORDER WAS NOT RECEIVED BY HIM. HE WAS SICK DURING THE SAID PERIOD AND HENCE SAME WAS NOT ATTENDED. AS SOON AS THE ASSESSEE CAME TO KNOW REGARDING CIT(A) S ORDER IN ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 2 QUESTION, THE ASSESSEE MOVED THIS APPEAL. FURTHER, APPLICATION WAS FILED EXPLAINING THE DELAY OF 69 DAYS. IT WAS EXPLA INED THAT THE ASSESSEE WAS DOWN WITH DISEASE DURING RELEVANT TIME . RELEVANT CERTIFICATE AND AFFIDAVIT IS FILED. IT IS STATED TH AT THE ASSESSEE WAS NOT WELL VERSED WITH THE INTRICACIES OF LAW AND STAYING IN A SMALL PLACE, HE WAS UNABLE TO GET EXPERT ADVICE ON TIME. IT WAS PRA YED THAT DELAY MAY BE CONDONED. THE CERTIFICATE OF SHRADDHA CLINIC DATED 30-6-2008 IS FILED TO SHOW THAT THE ASSESSEE WAS DOWN WITH TY PHOID AND JAUNDICE FROM 15-05-2008 TO 30-6-2008. IN THE AFFID AVIT IT IS FURTHER EXPLAINED THAT EVEN AFTER RECOVERY THE ASSESSEE WAS ADVISED NOT TO TRAVEL AND THAT IN THE SECOND WEEK OF JULY, 2008 RE LEVANT PAPERS WERE GIVEN TO THE CHARTERED ACCOUNTANT FOR FILING THE AP PEAL IN THE MATTER. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE AVERMENTS CONTAINED IN THE APPLICATION FOR CONDONATION OF DEL AY AND RELIED UPON THE AFFIDAVIT OF THE ASSESSEE AND THE MEDICAL CERTI FICATE IN SUPPORT OF THE CONTENTION. HE HAS SUBMITTED THAT THE ASSESSEE WAS ILL DURING THE PERIOD FROM 15-5-2008 TO 30-6-2008 AND THE LIMITATI ON WAS TO EXPIRE ON 21-5-2008 FOR FILING OF THE APPEAL. HE HAS FURTH ER SUBMITTED THAT SINCE THE ASSESSEE LIVED IN REMOTE AREA, THEREFORE, HE CONTACTED THE CONCERNED CHARTERED ACCOUNTANT AT AHMEDABAD AND THE REAFTER APPEAL IS PREFERRED. HE HAS RELIED UPON THE DECISIO N OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF KUNWAR MADAN MO HAN SINGH VS CONTROLLER OF ESTATE DUTY 70 ITR 418 IN WHICH THE B OARD OF REVENUE REFUSED TO CONDONE THE DELAY IN PREFERRING THE APPE AL ON THE ASSUMPTION THAT THE APPELLANT HAD TO SHOW WHY HE DE LAYED THE MATTER TILL THE END OF THE PERIOD OF LIMITATION, IN OTHER WORDS, THAT THE APPELLANT ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 3 WAS BOUND TO EXPLAIN THE DELAY OF EVERY DAY FALLING IN THE PERIOD OF LIMITATION. IT WAS HELD THAT THE BOARD HAS PROCEEDE D ON A MISTAKEN VIEW OF LAW AND THE ORDER REFUSING TO ADMIT THE APP EAL WAS ERRONEOUS. THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, SU BMITTED THAT SINCE PRIOR TO EXPIRY OF LIMITATION PERIOD ON 21-5- 2008 THE ASSESSEE REMAINED UNDER MEDICAL TREATMENT FROM 15-5-2008 TO 30-6-2008, THEREFORE, THE REASON FOR NOT PREFERRING THE APPEAL PRIOR TO 15-5-2008 IS IRRELEVANT. SIMILARLY, HE HAS RELIED UPON THE DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF RAMLAL, MOTILAL AND CH HOTELAL VS REWA COALFIELDS LTD. AIR 1962 361. 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THERE IS CONTRADICTION IN THE APPLICATION FOR CONDONATION OF DELAY AND THE AFFIDAVIT FILED BY THE ASSESSEE. HE HAS SUBMITTED T HAT THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY FILED WITH THE APPEAL PAPERS ADMITTED THAT THE IMPUGNED ORDER WAS NOT RECEIVED B Y HIM AND HE WAS SICK DURING THE SAID PERIOD AND HENCE, SAME WAS NOT ATTENDED. HOWEVER, IN THE AFFIDAVIT OF THE ASSESSEE IT IS STA TED IN PARA 1 THAT THE ASSESSEE HAS RECEIVED THE IMPUGNED ORDER ON 22-3-20 08 AND THE SAID DATE IS ALSO MENTIONED IN COLUMN NO.9 OF THE A PPEAL PAPERS. THE LEARNED DR, THEREFORE, SUBMITTED THAT SINCE THERE I S CONTRADICTION IN THE AVERMENTS CONTAINED IN THE APPLICATION FOR COND ONATION OF DELAY AND THE AFFIDAVIT, THEREFORE, THE DELAY MAY NOT BE CONDONED IN THE MATTER. THE LEARNED DR FURTHER SUBMITTED THAT THE A SSESSEE HAS NOT EXPLAINED WHY THE APPEAL WAS NOT PREFERRED DURING T HE MONTH OF APRIL, 2008 UP TO 15-5-2008. THE LEARNED DR FURTHER SUBMIT TED THAT DESPITE THE ASSESSEE RECOVERED FROM THE ALLEGED ILLNESS ON 30-6-2008, THE ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 4 ASSESSEE DID NOT PREFER THE APPEAL TILL 29-7-200 8 AND NO EXPLANATION IS GIVEN WHY THE ASSESSEE DID NOT PREFE R ANY APPEAL FROM 1-7-2008 TO 29-7-2008. THE LEARNED DR, THEREFORE, S UBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN ANY SUFFICIENT AND G OOD REASON FOR NOT PREFERRING THE APPEAL WITHIN THE PERIOD OF LIMITATI ON. THE LEARNED DR, THEREFORE, SUBMITTED THAT THE DELAY IN FILING THE A PPEAL MAY NOT BE CONDONED AND THE APPEAL OF THE ASSESSEE MAY BE DISM ISSED BEING BARRED BY LIMITATION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD. THE LEARNED DR RIGHTLY CONTENDED THAT THERE IS CONTRADICTION IN THE APPLICATION FILED BY THE ASSESSEE FOR CONDONATI ON OF DELAY AND THE AFFIDAVIT FILED BY THE ASSESSEE. IN THE APPLICATION FILED FOR CONDONATION OF DELAY ALONG WITH THE APPEAL PAPERS THE ASSESSEE STATED THEREIN THAT THE IMPUGNED ORDER WAS NOT RECEIVED BY HIM AND DURING THE SAID PERIOD HE WAS SICK AND HENCE, SAME WAS NOT ATTENDED . AS SOON AS THE ASSESSEE CAME TO KNOW REGARDING THE ORDER OF TH E LEARNED CIT(A), HE HAS MOVED THE PRESENT APPEAL. THIS APPLI CATION WAS FILED ALONG WITH THE APPEAL PAPERS ON 29-7-2008 AND NO ME DICAL CERTIFICATE OR AFFIDAVIT OF THE ASSESSEE WAS FILED ALONG WITH T HE SAID APPLICATION. LATER ON, THE ASSESSEE PREFERRED ANOTHER APPLICATIO N IN WHICH IT WAS EXPLAINED THAT THE ASSESSEE WAS DOWN WITH DISEASE D URING THE RELEVANT TIME AND RELEVANT CERTIFICATE AND AFFIDAVI T IS FILED. PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 30-6-2008 IS FILED ALONG WITH APPLICATION WHICH DOES NOT CONTAIN THE SIGNATURE OF THE ASSESSEE ON THE SAID MEDICAL CERTIFICATE. ACCORDING TO THE SAI D MEDICAL CERTIFICATE THE ASSESSEE WAS DOWN WITH TYPHOID AND JAUNDICE FRO M 15-5-2008 TO ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 5 30-6-2008 BUT NO MEDICAL CERTIFICATE WAS OBTAINED A DVISING ANY REST ON THE DATE WHEN THE ASSESSEE WAS STATED TO BE ILL ON 15-5-2008. THE CERTIFICATE IS ISSUED ONLY AFTER COMPLETION OF TREA TMENT ON 30-6-2008. THERE IS NO SERIAL NUMBER PROVIDED ON THE SAID CERT IFICATE OF THE CONCERNED DOCTOR. IT WOULD, THEREFORE, SHOW THAT TH E SAID MEDICAL CERTIFICATE DATED 30-6-2008 WAS OBTAINED LATER ON B Y THE ASSESSEE. SINCE THERE IS NO SIGNATURE OF THE ASSESSEE ON THE SAID MEDICAL CERTIFICATE BEING THE PATIENT UNDER TREATMENT, WOUL D CAST DOUBT IN GENUINENESS OF THE MEDICAL CERTIFICATE PRODUCED BY THE ASSESSEE. FURTHER, IN THE AFFIDAVIT OF THE ASSESSEE IT IS STA TED THAT THE ASSESSEE HAS RECEIVED THE IMPUGNED ORDER ON 22-3-3008. THERE FORE, SUCH STATEMENT IS CONTRADICTORY TO THE FACT CONTAINED IN THE APPLICATION FOR CONDONATION OF DELAY FILED WITH THE APPEAL PAPERS. NO MEDICAL CERTIFICATE IS FILED TO SHOW THAT THE ASSESSEE WAS ADVISED NOT TO TRAVEL BEYOND 30-6-2008. NO EXPLANATION IS GIVEN AS TO WHY THE APPEAL WAS NOT PREFERRED DURING THE PERIOD FROM 1-7-2008 TO 28 -7-2008. THE ABOVE FACTS WOULD SHOW THAT THE ASSESSEE HAS CLEARL Y MANIPULATED THE REASONS FOR SEEKING CONDONATION OF DELAY IN THE MATTER. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRO NOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CASE O F HIND DEVELOPMENT CORPN., VS. ITO (1979) 118 ITR 873, THE CALCUTTA HI GH COURT HELD THAT A TRIBUNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE C ASE OF VEDABHAI ALIAS VIJAYANATABAI BABURAO PATIL VS. SHANTARAM BAB URAO PATIL (2002) 253 ITR 798 (SC), WHERE IT WAS HELD THAT WHI LE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT, 1 963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING THE APPEAL WITHIN THE PERIOD ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 6 PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROAC H. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INOR DINATE AND A CASE WHERE DELAY IS OF A FEW DAYS. THE COURT OBSERV ED THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTH ER SIDE WILL BE RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPRO ACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CAS E DESERVES A LIBERAL APPROACH. NOW IN THE PRESENT CASE DELAY IS NOT OF A FEW DAYS BUT OF MORE THAN 2 (TWO) MONTHS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLANATION/REASON FOR THE DELAY. IN THE CASE OF CI T V. RAM MOHAN KABRA (2002) 257 ITR 773, THE HONBLE PUNJAB & HARY ANA HIGH COURT HAS HELD AND OBSERVED THAT WHERE THE LEGISLATURE SP ELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SP ECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EF FECTIVE CONSEQUENCES. IN THIS CASE DELAY FOR FILING THE APP EAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF ASSTT. CI T V. TAGGAS INDUSTRIES DEVELOPMENT LTD. (2002) 80 ITD 21 (CAL), TRIBUNAL, CALCUTTA BENCH, CALCUTTA, DID NOT CONDONE THE DELAY FOR FILING THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DU E TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, WE HOL D THAT THE ASSESSEE FAILED TO EXPLAIN THE DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. THEREFORE, THE APPEAL OF THE ASSE SSEE SHALL HAVE TO BE DISMISSED CONSIDERING IT TO BE TIME BARRED. ITA NO.2684/AHD/2008 RAGHAVBHAI KARSANBHAI GABANI VS ITO, WARD 2(3), BHA VNAGAR 7 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED BEING TIME BARRED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 18-03-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD