Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0537 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 10 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
31-12-2012
Assessment Year
2006-2007
Appeal Filed On
02-07-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 293/AGRA/2012 ASSTT. YEAR : 2006-07 INCOME-TAX OFFICER, VS. AGRA PUBLIC EDUCATIONAL S OCIETY, 1(1), AGRA. 10, OLD VIJAY NAGAR COLONY, AGRA.(PAN: AABTA 2806 P). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI ANIL VERMA, ADVOCATE DATE OF HEARING : 31.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 04.01.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AGRA DATED 17.03.2010 ON THE FOLLOWING EFFECTIVE GR OUND OF APPEAL : 1. THAT THE CIT(A)-II, AGRA HAS ERRED IN LAW AND O N THE FACTS OF THE CASE IN ALLOWING THE DEPRECIATION U/S. 32 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS ON RECORDS THAT THE ASSESSEE HAS NOT CLAIMED THE DEPRECIATION IN THE RETURN OF INCOM E FOR A.Y. 2006- 07. 2. THE DEPARTMENTAL APPEAL IS FILED IN THE OFFICE O F THE TRIBUNAL ON 02.07.2012. THUS, IT WAS FOUND THAT THE DEPARTMENTAL APPEAL IS TIME BARRED BY 735 DAYS. THE ITA NO. 293/AGRA/2012 2 DEPARTMENT FILED TWO APPLICATIONS FOR CONDONATION O F DELAY DATED 02.07.2012 AND 26.11.2012. 3. THE LD. REPRESENTATIVES OF BOTH THE PARTIES HAVE BEEN HEARD ON THE POINT OF CONDONATION OF DELAY ONLY. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE REVENUE EARLIER FILED APPEAL BEFORE THE TRIBUNAL IN ITA NO. 313/AGRA/2010 FOR TH E SAME ASSESSMENT YEAR 2006- 07 AGAINST THE SAME IMPUGNED ORDER DATED 17.03.2010 . THE APPEAL OF THE REVENUE WAS DISMISSED BEING DEFECTIVE VIDE ORDER DATED 28.0 6.2011 BY THE TRIBUNAL. THE TRIBUNAL FOUND THAT THE APPEAL WAS FILED BY THE DEP ARTMENT, CHALLENGING THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITIONS BY HOLD ING THAT THE ASSESSEE-SOCIETY IS EDUCATIONAL INSTITUTION AS PROVIDED U/S. 10(23C)(II IAD) OF THE IT ACT. HOWEVER, THE LD. COMMISSIONER HAS AUTHORIZED THE ASSESSING OFFIC ER TO FILE THE DEPARTMENTAL APPEAL IN ORDER TO CHALLENGE HIS ORDER IN ALLOWING THE DEPRECIATION U/S. 32 OF THE IT ACT. SINCE THE AO FILED THE APPEAL ON A DIFFERENT G ROUNDS, WHICH WAS NOT AUTHORIZED BY THE LD. COMMISSIONER, THEREFORE, THE APPEAL OF THE DEPARTMENT WAS FOUND DEFECTIVE AND THE SAME WAS DISMISSED WITH LIB ERTY TO DEPARTMENT, IF SO DESIRED, TO FILE AN APPEAL AS PER AUTHORIZATION GIV EN BY THE LD. CIT-I, AGRA. THE TRIBUNAL PASSED THIS ORDER ON DATED 28.06.2011 IN I TA NO. 313/AGRA/2010. THE ITA NO. 293/AGRA/2012 3 REVENUE DEPARTMENT INSTEAD OF FILING THE FRESH APPE AL, PREFERRED TO MOVE MISCELLANEOUS APPLICATION NO. 01/AGRA/2012 FOR RECA LLING OF THE EARLIER ORDER OF THE TRIBUNAL DATED 28.06.2011, WHICH WAS ALSO DISMISSED VIDE ORDER DATED 16.03.2012 BECAUSE THE M.A. OF THE REVENUE WAS NOT MAINTAINABL E BECAUSE INSTEAD OF FILING MISCELLANEOUS APPLICATION, THE REVENUE SHOULD HAVE FILED THE FRESH APPEAL AS WAS EARLIER OBSERVED BY THE TRIBUNAL. IN THE BACKGROUND OF THESE FACTS, THE REVENUE PREFERRED THE PRESENT FRESH APPEAL AND PRAYED THAT THE DELAY IN FILING THE APPEAL MAY BE CONDONED. 5. THE LD. DR SUBMITTED THAT SEQUENCE OF EVENTS MAY BE CONSIDERED AND DELAY IN FILING THE APPEAL MAY BE CONDONED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REVENUE WAS GROSS NEGLI GENT IN MOVING THE MISCELLANEOUS APPLICATION AND REMAINED SILENT FOR T AKING PROPER STEPS IN THE MATTER AND NO VALID EXPLANATION HAS BEEN GIVEN FOR DELAY I N FILING OF APPEAL BEYOND THE PERIOD OF LIMITATION. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE EARLIER ORDERS OF THE TRIBUNAL AND THE FACTS CONTAINED IN THE APPLICA TIONS FOR CONDONATION OF DELAY. HONBLE SUPREME COURT RECENTLY IN THE CASE OF OFFIC E OF THE CHIEF POST MASTER GENERAL AND OTHERS VS. LIVING MEDIA INDIA LTD. AND ANOTHER, 348 ITR 7 (SC) ITA NO. 293/AGRA/2012 4 CONSIDERED THE DELAY IN FILING THE PETITIONS BEFORE THE SUPREME COURT BY THE GOVERNMENT DEPARTMENTS. IN THIS CASE, THE POSTAL DE PARTMENT PREFERRED THE APPEALS TO THE HONBLE SUPREME COURT BY WAY OF SPECIAL LEAV E WITH DELAY OF 427 DAYS WITH APPLICATION FOR CONDONATION OF DELAY IN FILING THE PETITION FOR SPECIAL LEAVE. HONBLE SUPREME COURT CONSIDERING THE ISSUE IN THE LIGHT OF SEVERAL DECISIONS, DISMISSED THE APPEAL ON THE GROUND OF DELAY. IT WAS HELD HELD, DISMISSING THE APPLICATIONS, THE DEPARTMENT HAD ITS ELF MENTIONED IN ITS AFFIDAVIT AND WAS AWARE OF THE DAT E OF THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT AS SEPTEMBER 1 1, 2009. EVEN, ACCORDING TO THE DEPONENT, ITS COUNSEL HAD APPLIED FOR THE CERTIFIED COPY OF THE JUDGMENT ONLY ON JANUARY 8, 2010, AND T HE COPY WAS RECEIVED BY THE DEPARTMENT ON THE VERY SAME DAY. TH ERE WAS NO EXPLANATION FOR NOT APPLYING FOR CERTIFIED COPY OF THE JUDGMENT ON SEPTEMBER 11, 2009, OR AT LEAST WITHIN A REASONABLE TIME. THE FACT REMAINS THAT THE CERTIFIED COPY WAS APPLIED FOR ONL Y ON JANUARY 8, 2010, I.E., AFTER A PERIOD OF NEARLY FOUR MONTHS. N EITHER THE DEPARTMENT NOR THE PERSON IN-CHARGE HAD FILED AN EX PLANATION FOR NOT APPLYING FOR THE CERTIFIED COPY WITHIN THE PRESCRIB ED PERIOD. THE OTHER DATES MENTIONED IN THE AFFIDAVIT CLEARLY SHOWED THA T THERE WAS DELAY AT EVERY STAGE AND THERE WAS NO EXPLANATION AS TO WHY SUCH DELAY HAD OCCASIONED. THE DEPARTMENT OR THE PERSON CONCERNED HAD NOT EVINCED DILIGENCE IN PROSECUTING THE MATTER TO THE COURT BY TAKING APPROPRIATE STEPS. THE PERSONS CONCERNED WERE WELL AWARE OR CON VERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETI TION IN THE SUPREME COURT. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE E XPLANATION, THE DELAY COULD NOT BE CONDONED MECHANICALLY MERELY BEC AUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT WAS A PARTY BEFORE THE COURT. THOUGH IN A MATTER OF CONDONATION OF DELAY W HEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA FIDE, A LIBERAL CONCESSION HAD TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, IN THE FACTS AND CIRCUMSTANCES, THE CLAIM ON ACCOUNT OF IM PERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES COULD NOT BE ACCEPTED IN VIEW OF THE MODERN T ECHNOLOGIES BEING ITA NO. 293/AGRA/2012 5 USED AND AVAILABLE. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, THE DEPARTMENT HAD FAI LED TO GIVE ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. BY THE COURT : UNLESS GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES HAVE REASONABLE AND ACCEPTABL E EXPLANATION FOR THE DELAY AND THERE WAS BONA FIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FO R SEVERAL MONTHS OR YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED- TAPE IN THE PROCESS. GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENC E AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERY-ONE UNDER THE SAME LIGHT AND SHOULD NOT BE SW IRLED FOR THE BENEFIT OF A FEW. THE LAW OF LIMITATION BINDS EVERY BODY INCLUDING THE GOVERNMENT. 6.1 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF ABOVE PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT IN THE ABOVE CASE, WE DO N OT FIND ANY JUSTIFICATION TO CONDONE THE DELAY IN FILING THE DEPARTMENTAL APPEAL BEYOND THE PERIOD OF LIMITATION. EARLIER, THE REVENUE CHALLENGED THE IMP UGNED ORDER IN ITA NO. 313/AGRA/2010 BEFORE THE TRIBUNAL AND INSTEAD OF RA ISING PROPER GROUNDS OF APPEALS AS AUTHORIZED BY THE COMMISSIONER, THE DEPA RTMENTAL APPEAL WAS FILED ON DIFFERENT GROUNDS OF APPEALS. THE DEPARTMENTAL APPE AL WAS DISMISSED. HOWEVER, LIBERTY WAS GIVEN TO FILE THE APPEAL AS PER AUTHORI ZATION GIVEN BY THE COMMISSIONER, IF SO DESIRED. THIS ORDER WAS PASSED BY THE TRIBUNAL ON 28.06.2011. IT IS, THEREFORE, CLEAR THAT THE AO WAS MOST NEGLIG ENT IN FILING THE IMPROPER APPEAL ITA NO. 293/AGRA/2012 6 BEFORE THE TRIBUNAL. THE DEPARTMENT INSTEAD OF FILI NG FRESH APPEAL IMMEDIATELY AFTER THE ORDER DATED 28.06.2011, FILED M.A. NO. 01 /2012, WHICH WAS ALSO DISMISSED BY THE TRIBUNAL FINDING NO MISTAKE APPARE NT ON RECORD VIDE ORDER DATED 16.03.2012. AGAIN THE DEPARTMENT WAS MOST NEGLIGENT IN NOT TAKING PROPER STEPS AS PER EARLIER ORDER DATED 28.06.2011. DESPITE FINAL O RDER PASSED IN M.A. ON 16.03.2012, NO STEPS HAVE BEEN TAKEN BY THE REVENUE DEPARTMENT TO FILE THE DEPARTMENTAL APPEAL IMMEDIATELY IN THE OFFICE OF TH E TRIBUNAL. THE DEPARTMENTAL APPEAL IS ONLY PREFERRED ON 02.07.2012 AND NO VALID EXPLANATION OF DELAY HAS BEEN GIVEN FROM 16.03.2012 TO 02.07.2012. EVEN IN THE AP PLICATIONS FOR CONDONATION OF DELAY, NO EXPLANATIONS HAVE BEEN GIVEN AS TO WHY TH E DEPARTMENT REMAINED NEGLIGENT IN NOT FILING THE DEPARTMENTAL APPEAL IMM EDIATELY AFTER THE ORDER OF THE TRIBUNAL DATED 16.03.2012. IN THE ABSENCE OF ANY EX PLANATION, WE ARE NOT INCLINED TO CONDONE THE DELAY IN FILING THE DEPARTMENTAL APP EAL BEFORE THE TRIBUNAL. AT THE MOST, THE DEPARTMENT COULD CONTEND THAT THERE WAS S OME EXPLANATION FOR CONDONATION OF DELAY WHEN THE APPEAL OF THE DEPARTM ENT WAS DISMISSED CONSIDERING TO BE DEFECTIVE ON PASSING THE ORDER ON 28.06.2011. FURTHER, FROM 28.06.2011 ONWARDS, NO EXPLANATION HAS BEEN GIVING SEEKING CON DONATION OF DELAY. IT IS WELL SETTLED LAW THAT THE DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT A SETTL ED PRINCIPLE OF LAW THAT THE PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMI TATION MUST BE APPLIED WITH THEIR ITA NO. 293/AGRA/2012 7 RIGOR AND EFFECTIVE CONSEQUENCES. HOWEVER, IN THE P RESENT CASE, THE REVENUE DEPARTMENT HAS NOT BEEN ABLE TO GIVE ANY SUFFICIENT GOOD REASONS SEEKING CONDONATION OF DELAY IN THE MATTER. WE, THEREFORE, HOLD THAT THE REVENUE HAS FAILED TO EXPLAIN THAT THE DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. THE DEPARTMENTAL APPEAL IS ACCORDINGLY DISMISSED IN LIM INE ON THE GROUND OF DELAY. 7. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED IN LIMINE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *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 SR. PRIVATE SECRETARY TRUE COPY
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