M/s. Jaycees Public School, New Delhi V. ITO, Rudrapur

ITA 289/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3288 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 27-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHNA PAUL
• Assessee Lawyers: ASHWANI TANEJA; SHANTANU JAIN S
• Keywords: Depreciation; Bonafide belief; Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 289/DEL/2017 ASSESSMENT YEAR: 2009-10 M/S JAYCEES PUBLIC SCHOOL, VS. INCOME TAX OFFICER , C/O M/S RRA TAXINDIA, RUDRAPUR D-28, SOUTH EXTENSION, PART-I, NEW DELHI 110 049 (PAN: AAAAJ2776K) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. ASHWANI TANEJA, & SH. SHANTANU JAIN, ADVOCATES REVENUE BY : MS. ASHNA PAUL, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 12.5.2015 PASSED BY THE LD. CIT(A), HALDWANI RELATI NG TO ASSESSMENT YEAR 2009-10. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE HAS DRAW MY ATTENTION TOWARDS THE APPLICATION FOR CONDONATION O F DELAY OF 549 DAYS FILED BY THE ASSESSEE AND REITERATED THE CONTENTION S RAISED IN THE APPLICATION FOR CONDONATION OF DELAY AND HE REQUEST ED THAT THE DELAY OF 2 549 DAYS IS NOT INTENTIONAL. IN VIEW OF ABOVE, HE REQUESTED THAT DELAY OF 549 DAYS MAY BE CONDONED AND THE ASSESSEES APPE AL MAY BE ADMITTED AND MAY BE HEARD ON MERITS. 4. ON THE OTHER HAND, LD. DR STRONGLY OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE FOR CONDONING THE HUGE DELAY OF 549 DAYS. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. WE FIND THAT THIS APPEAL WAS FILED ON 18.01.2017 WHICH WAS BARRED BY 549 DAYS. THE REGISTRY HAS ISSUED THE DEFECT NOTICE AN D RAISED THE DEFECT VIDE SERIAL NO. 11 STATING THEREIN THAT APPEAL IS PRIMA FACIE TIME BARRED BY 549 DAYS. IN RESPONSE TO ABOVE SAID DEFECT NOTICE, ASSESSEES AR HAS FILED A LETTER DATED 14.11.2017 R EGARDING REMOVAL OF DEFECT FOR CONDONATION OF DELAY OF 549 DAYS WHICH W AS PLACED ON RECORD. FOR THE SAKE OF CLARITY, I AM REPRODUCING THE CONTENTS OF THE APPLICATION FOR CONDONATION OF DELAY AS UNDER:- SUB: -PRAYER FOR CONDONATION OF DELAY IN FILING OF APPEAL IN THE CASE OF M/S JAYCEES PUBLIC SCHOOL FOR AY 2009-10 IN ITA NO. 289/DEL/2017 U/S. 147/143(30 OF THE INCOME TAX ACT, 1961. IT IS MOST RESPECTFULLY SUBMITTED THAT THE ASSESSEE FILED ITS RETURN DECLARING NIL INCOME ON 29.09.2009 FOR A Y 2009-10 AFTER CLAIMING EXEMPTION ULS 10(23C)(VI ) OF THE INCOME TAX ACT, 1961 AND ASSESSMENT IN THE ABOVE SAID CASE GOT COMPLETED U/S 147/143(3) AT THE TOTAL INCOME OF RS. 35,48,711/- VIDE ORDER DATED 11.03.2014. THE ASSESSEE FILED AN APPEAL BEFORE LD. 3 CIT(A), HALDWANI AND VIDE ORDER DATED 12.05.2015, LD. CIT(A) GRANTED PART RELIEF TO THE ASSESSEE AND SUSTAINED THE DISALLOWANCE ON ACCOUNT OF DEDUCTION ULS 11/12 AMOUNTING TO RS. 18,01,756/- AND ON ACCOUNT OF DEPRECIATION ON BUILDING AMOUNTING TO RS . 13,17,751/- THE ASSESSEE FILED AN APPEAL BEFORE HON'BLE TRIBUNA L ON 18.01.2017 FOR A Y 2009- 10 AGAINST THE ORDER OF LD. CIT(A), HALDWANI, FIXED BEFORE HON'BLE 'SMC' BENCH FOR HEARING ON 14.11.2017 I.E. TODAY, WHICH I S DELAYED BY 549 DAYS AND THE REASONS FOR WHICH ARE A S UNDER: - 1. THAT ON THE RECEIPT OF THE LD. CIT(A)'S ORDER DA TED 12.05.2015 FOR A Y 2009-10 SH. SURJIT SINGH, THE SECRETARY OF M/S JAYCEES PUBLIC SCHOOL, WAS UNDER T HE BONAFIDE BELIEF THAT SINCE THE ASSESSEE HAS FILED A N APPEAL ON 27.08.2012 BEFORE A HON'BLE TRIBUNAL, NEW DELHI AGAINST THE WITHDRAWAL OF REGISTRATION ULS 12 AA WHICH WAS PENDING FOR A LONG TIME AND WAS EXPECTED TO BE DECIDED SOON BY THE HON'BLE TRIBUNAL AND THEREFORE THERE IS NO REQUIREMENT TO FILE AN APPEAL AGAINST THE ORDER OF LD. CIT(A) FOR AY 2009-10 AS T HE OUTCOME OF 12AA APPEAL WOULD HAVE DIRECT POSITIVE EFFECT ON THIS APPEAL. 2. THAT ON THE RECEIPT OF THE LD. CIT(A)'S ORDER DA TED 06.09.2016 FOR AY 2011-12 ON 21.11.2016, SH. SURJIT SINGH MET DR. RAKESH GUPTA, ADVOCATE, AS THE APPEAL AGAINST THE WITHDRAWAL OF 12AA WAS STILL PENDING BEFORE THE HON'BLE TRIBUNAL. DURING THE MEETING HE 4 WAS ADVISED THAT IT IS IN THE INTEREST OF ASSESSEE THAT THE APPEAL SHOULD BE FILED AGAINST THE ORDER OF LD. CIT(A) FOR A Y 2009-10 DESPITE THERE BEING DIRECT E FFECT OF THE OUTCOME OF THE 12AA APPEAL AND THE BELIEF OF SH. SURJIT SINGH IS NOT IN THE BEST INTEREST OF THE ASS ESSEE SOCIETY. 3. THAT IN VIEW OF THESE FACTS, ASSESSEE TOOK IMMEDIATE ACTION TO FILE AN APPEAL AGAINST THE ORDE R PERTAINING TO AY 2009-10 AND 2011-12 AND THEREFORE THE DELAY OF 549 DAYS OCCURRED IN FILING OF APPEAL. THUS, THERE IS A GOOD AND SUFFICIENT REASON FOR THE DELAY AND THEREFORE, IT IS HUMBLY PRAYED THAT THE D ELAY MAY PLEASE BE CONDONED. RELIANCE IS PLACED ON THE DECISION IN THE CASE OF M /S SHEENA EXPORTS IN ITA 6001/DEL/L2013, DATE OF ORDER 15-10-2014. (ITAT, DELHI) RELIANCE IS FURTHER PLACED ON THE JUDGMENT OF COLLE CTOR, LAND ACQUISITION VS MST. KATIJI & OTHERS 167 ITR 47 1 (SC). WE SHALL BE OBLIGED. 6. AFTER GOING THROUGH THE CONTENTIONS RAISED BY TH E ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY OF 549 DAYS, I AM OF THE CONSIDERED VIEW THAT ASSESSEE HAS NOT GIVEN ANY PLA USIBLE REASONS FOR CONDONING THE HUGE DELAY OF 549 DAYS IN THE SAID A PPLICATION. ASSESSEE HAS ALSO NOT FILED ANY EVIDENCE AS PER THE AVERMENTS MADE BY THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, I AM UNABLE TO CONDONE THE HUGE DELAY OF 549 DAYS IN FILING THE PRESENT APPEAL. 5 HENCE, THE APPEAL FILED BY THE ASSESSEE IS DISMISS ED BEING TIME BARRED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/11/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 15/11/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES