DCIT, Gwalior V. M/s Kaushlak Packagings Pvt. Ltd, Gwalior

ITA 269/AGR/2002

• Counselvise Citation: 26920314 RSA 2002
• Duration Of Justice: 9 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-03-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 19-07-2002
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K SEHGAL
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 269/AGRA/2002 ASST. YEAR : 1997-98 D.C.I.T., RANGE-II, VS. M/S. KAUSHLAK PACKAGINGS PVT. LTD., GWALIOR. A.B. ROAD, PURANI CHHAVANI, GWALIOR (GIR NO. K-1) (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI WASEEM ARSHAD, SR. D.R. FOR ASSESSEE : SHRI P.K. SEHGAL, ADVOCATE DATE OF HEARING : 05.03.2012 DATE OF PRONOUNCEMENT : 07.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 28.03.2002 FOR THE ASSESSMENT YEAR 19 97-98. 2. ACCORDING TO THE REGISTRY, THE APPEAL IS TIME BA RRED BY 12 DAYS. THE REVENUE DEPARTMENT FILED APPLICATION FOR CONDONATIO N OF DELAY, IN WHICH IT WAS STATED THAT THE APPELLATE ORDER WAS RECEIVED IN THE OFFICE OF DCIT-II, GWALIOR ON 07.05.2002 AND DUE TO ADDITIONAL CHARGE OF THE OFFI CE OF CIT, GWALIOR AND OTHER INADVERTENT REASONS, THE APPEAL COULD NOT BE FILED IN TIME. IT IS, THEREFORE, PRAYED THAT THE DELAY MAY BE CONDONED. ITA NO. 269/AGRA/2002 2 3. THE LD. DR STRONGLY RELIED UPON THE APPLICATION FOR CONDONATION OF DELAY. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THERE IS NO MATERIAL FOR EXPLAINING THE REASONS FOR DELAY. THEREFORE, TH E DELAY IN FILING THE DEPARTMENTAL APPEAL MAY NOT BE CONDONED. 4. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE APPLICATION FOR CONDONATION OF DELAY. EXCEPT FILING OF THE APPLICATION FOR CONDONATION OF DELAY, NO EVIDENCE OR MATERIAL IS FI LED IN SUPPORT OF THE APPLICATION. IN THE APPLICATION FOR CONDONATION OF DELAY, IT IS MERELY STATED THAT DUE TO ADDITIONAL CHARGE OF OFFICE OF CIT, GWALIOR AND OTHER INADVERT ENT REASONS, THE APPEAL COULD NOT BE FILED IN THE OFFICE OF THE TRIBUNAL IN TIME. NOTHING IS EXPLAINED AS TO WHAT WAS THE SIGNIFICANCE OF HAVING ADDITIONAL CHARGE OF THE OFFICE OF CIT, GWALIOR. NOTHING WAS ALSO EXPLAINED AS TO WHAT WERE THE OTHE R INADVERTENT REASONS DUE TO WHICH THE APPEAL COULD NOT BE PREFERRED WITHIN THE PERIOD OF LIMITATION. ON THE LAST DATE OF HEARING ON 13.02.2012, THE LD. DR SOUGHT TI ME TO EXPLAIN THE REASONS FOR DELAY IN FILING THE DEPARTMENTAL APPEAL. DESPITE TA KING SUFFICIENT TIME, NOTHING IS EXPLAINED AS TO WHAT WAS THE REASON FOR DELAY IN FI LING THE APPEAL. NO EVIDENCE OR MATERIAL IS REFERRED. THUS, THE REVENUE DEPARTMENT IS NOT ABLE TO EXPLAIN ANY REASON AS TO WHY THE APPEAL COULD NOT BE PREFERRED WITHIN THE PERIOD OF LIMITATION. ITA NO. 269/AGRA/2002 3 ACCORDING TO SECTION 253(5), THE DELAY COULD HAVE B EEN CONDONED IF THE TRIBUNAL IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT P RESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATION. SINCE NO SUFFICIENT CAUSE IS DISCLOSED IN THE APPLICATION FOR DONATION OF DELAY AND DESPITE GIVING TIME, NO REASO NS HAVE BEEN EXPLAINED AND FURTHER, NO AFFIDAVIT OF THE CONCERNED DEPARTMENTAL OFFICER HAS BEEN FILED IN SUPPORT OF THE APPLICATION, THEREFORE, WE ARE OF THE VIEW T HAT THE REVENUE DEPARTMENT FAILED TO EXPLAIN ANY SUFFICIENT CAUSE FOR FILING T HE DEPARTMENTAL APPEAL BEYOND THE PERIOD OF LIMITATION. 5. IN THE CASE OF HINDU DEVELOPMENT CORPN. V. ITO [ 1979] 118 ITR 873, THE CALCUTTA HIGH COURT HELD THAT A TRIBUNAL CAN CONDON E THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE CASE OF VEDABAI ALIAS VIJAYANATABAI BABURAO PATIL V. SHANTA RAM BABURAO PATIL [2002] 253 ITR 798 (SC), WHERE IT WAS HELD THAT WHILE EXERCISI NG DISCRETION U/S 5 OF THE LIMITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIE NT CAUSE IN NOT FILING THE APPEAL WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE D ELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVE D THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND ITA NO. 269/AGRA/2002 4 SUCH A CASE DESERVES A LIBERAL APPROACH. THERE IS A BSOLUTELY NO VALID EXPLANATION/REASONS FOR THE DELAY. IN THE CASE OF C IT VS. RAM MOHAN KABRA [2002] 257 ITR 773, THE HONBLE PUNJAB & HARYANA HIGH COUR T HAS HELD OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITA TION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN ONLY BE C ONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENC E. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SPECIFIED PERIO D OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN TH IS CASE DELAY FOR FILING THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE C ASE OF ACIT 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 DUE TO SUFFICIENT CAUSE. THUS, RE LYING ON THE ABOVE JUDGMENTS, WE HOLD THAT DEPTT. FAILED TO EXPLAIN DELAY IN FILI NG THE APPEALS WAS DUE TO SUFFICIENT CAUSE. HONBLE MP HIGH COURT IN THE CASE OF CIT VS. SHRI AMIT WADHWANI, IN MAIT NO.91 OF 2006 VIDE ORDER DATED 30 TH JANUARY, 2009 REFUSED TO CONDONE THE DELAY IN FILING THE DEPARTMENTAL APPEAL BECAUSE THE REQUIRED AFFIDAVIT OF THE OFFICER WHO GRANTED APPROVAL, WAS NOT FILED. THE DEPARTMENT AL APPEAL WAS DISMISSED WITH THE COST OF RS.10,000/-. ITA NO. 269/AGRA/2002 5 6. CONSIDERING THE ABOVE DISCUSSION AND IN THE ABSE NCE OF ANY EXPLANATION OF INADVERTENT REASONS OR MATERIAL/EVIDENCE ON RECORD, WE ARE OF THE VIEW THAT THE REVENUE FAILED TO EXPLAIN ANY SUFFICIENT CAUSE FOR PREFERRING THE DEPARTMENTAL APPEAL BEYOND THE PERIOD OF LIMITATION. WE, THEREFO RE, HOLD THAT THE APPEAL OF THE REVENUE IS TIME BARRED AND IS, ACCORDINGLY DISMISSE D. 7. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED BEING TIME BARRED. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH MARCH, 2012 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY