M/s Goa Dourada Promotions Pvt. Ltd., Panaji V. Dy. Commissioner of Income Tax, Central Circle, Panaji., Panaji

ITA 296/PAN/2014

• Counselvise Citation: 29624114 RSA 2014
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NATARAJ S LD
• Assessee Lawyers: SRINIVAS NAYAK
• Keywords: Condonation of delay
• Section: 6; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO S . 29 6,297 & 298, 29 9 / PNJ/ 2014 : (ASST. YEAR S :2008 - 09 & 2009 - 10) M/S. GOA DOURADO PROMOTIONS PVT. LTD., ALFRAN PLAZA, L43 - 44, 4 TH FLOOR, M.G. ROAD, PANAJI, GOA . (APPELLANT S ) PAN : AA ACG7058B. VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI, GOA . (RESPONDENT S ) A PPELLANT BY : SHRI SRINIVAS NAYAK, CA . RE SPONDENT BY : SHRI NATARAJ S. , LD. DR . DATE OF HEARING : 05 / 03 /201 5 DATE OF PRONOUNCEMENT : 20 / 03 /201 5 O R D E R PER P.K. BANSAL : ALL THESE FOUR APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF CIT(A) - VI , BANGALORE DT D . 2 2 . 11 .201 2 AND 23.06.2014 RESPECTIVELY . ALL THESE FOUR APPEALS HAVE BEEN FILED IN THE TRIBUNAL ON 01 . 09.2014. THERE HAS BEEN DELAY OF 5 88 DAYS IN RESPECT OF APPEAL S BEARING NOS. 296 & 299/PNJ/2014 FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DT D. 22 . 1 1.2012. AP PLICATION FOR CONDONATION OF DELAY WAS FILED ALONG WITH THE A FFIDAVIT OF THE DIRECTOR OF THE ASSESSEE. THE ASSESSEE EXPLAINED THAT THE ASSESSMENT S WERE COMPLETED FOR ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 ON 27.1 2 .2011 AGAINST WHICH APPEAL S WERE FILED BEFORE CIT(A) ON 16. 0 1.2012 RESPECTIVELY . AT THE TIME OF FILING OF THE SE TWO APPEAL S THE ASSESSEE HAS NOT 2 ITA NOS. 29 6,297 & 29 8,299 /PNJ/2014 (ASST. YEARS : 2008 - 09 & 2009 - 10) PAID THE TAX DUE AS PER THE RETURN OF INCOME BUT THE ASSESSEE PAID ALL THE TAXES BEFORE DISPOSAL OF THE TWO APPEAL S . CIT(A) DISMISSED BOTH TH E APPEAL S IN VIEW OF PROVISIONS OF SEC. 249(4)(A) AGAINST WHICH THESE TWO APPEAL S WERE FILED BEFORE THE TRIBUNAL L ATE BY 588 DAYS. 2. IT WAS FURTHER SUBMITTED THAT T HE C.A OF THE ASSESSEE DEALING WITH THE MATTER ADVISED THE ASSESSEE TO FILE AN APPLICA TION FOR RECTIFICATION U/S 154 BEFORE CIT(A) FOR RECALLING OF THE ORDER. ACCORDINGLY, AN APPLICATION DT D . 19.12 .20 13 WAS FILED BEFORE CIT(A) STATING THEREIN THAT SINCE THE ASSESSEE HAS PAID ALL THE TAXES DUE AS PER THE RETURN, THEREFORE ASSESSEE BE GIVEN AN OPPORTUNITY AND THE ORDER BE RECALLED. CIT(A) REJECTED THE APPLICATION U/S 154 VIDE ORDER DATED 23.06.2014 . THE SAID ORDER WAS RECEIVED BY THE ASSESSEE ON 14.7.2014. IN THE MEANTIME, THE C.A WHO WAS DEALING WITH THE MATTER ADVISED THE ASSESSEE THAT THE PROVISIONS OF SEC. 249(4)(A) DOES NOT APPLY IN RESPECT OF APPEAL FILED BEFORE THE TRIBUNAL IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PAWAN KUMAR LADDHA, 324 ITR 324 (SC) WHICH WAS READ BY HIM SUBSEQUENTLY AND IMMEDIATELY THE C.A INTIMATED TO HIS CLIENT ON 18.8.2014 FOR FILING AN APPEAL BEFORE THE TRIBUNAL AND ACCORDINGLY THE APPEAL WAS FILED BEFORE THE TRIBUNAL ON 02.09 .2014 I.E. WITHIN 60 DAYS FROM THE D ATE OF RECEIPT OF THE ORDER PASSED BY THE CIT(A) U/S 154 OF THE INCOME TAX ACT . IN THIS REGARD, OUR A TTENTION WAS DRAWN TOWARDS THE A FFIDAVIT FILED BY THE DIRECTOR OF THE ASSESSEE AS WELL AS OF THE C.A NAMELY SHRI SUHAS MANNUR . THUS IT WAS CONTENDED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE APPEAL WITHIN THE PERMITTED TIME. THE DELAY SO CAUSED BE CONDONED. 3. THE LD. DR ON THE OTHER HAND CONTENDED THAT IT IS NOT A CASE OF CONDONATION OF DELAY. DELAY IS MORE THAN ONE YEAR. ASSESSEE SHOULD HAVE IMMEDIATELY FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF CIT(A). 3 ITA NOS. 29 6,297 & 29 8,299 /PNJ/2014 (ASST. YEARS : 2008 - 09 & 2009 - 10) 4. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. IN OUR OPINION, IT IS A FIT CASE FOR CONDONATION OF DELAY. WE NOTED THAT THE ASSESSEE HAS REL IED ON THE ADVICE OF THE COUNSEL. SINCE THE COUNSEL OF THE ASSESSEE ADVISED THE ASSESSEE TO FILE APPLICATION U/S 154 BEFORE CIT(A), ACCORDINGLY ASSESSEE, WITHIN THE PERMISSIBLE TIME, FILED AN APPLICATION U/S 154 BEFORE CIT(A) WHICH WAS ULTIMATELY DISMISSE D BY THE CIT(A) VIDE ORDER DT D . 23.6.2014. IN OUR OPINION, A PERSON OF ORDINARY PRUDENCE WILL NATURALLY WAIT FOR THE OUTCOME OF THE MISCELLANEOUS APPLICATION INSTEAD OF GOING FOR MULTIPLICITY OF PROCEEDINGS. WE NOTED THAT THE ASSESSEE HAS FILED THESE TWO APPEAL S , IN RESPECT OF WHICH CONDONATION OF DELAY WAS PRAYED FOR, BEFORE THE TRIBUNAL ON 02.09 .2014 I.E. WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER PASSED BY THE CIT(A) U/S 154 EVEN THOUGH THE APPEAL FOR WHICH CONDONATION OF DELAY IS SOUGHT DOES NOT RELATE TO THE ORDER PASSED ON 23.6.2014. THIS IS NOT DISPUTED THAT THE ORDER PASSED BY THE CIT(A) U/S 154 WAS RECEIVED BY THE ASSESSEE ON 14.07.2014. WE ALSO FIND SUBSTANCE IN THE AFFIDAVIT OF THE C.A IN WHICH HE HAS MENTIONED THAT HE WAS UNDER THE IMPRESSION THAT THE PROVISIONS OF SEC. 249(4)(A) DEBARS AN ASSESSEE FROM FILING AN APPEAL IN CASE TAX DUE AS PER THE RETURN IS NOT PAID. PRIOR TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PAWAN KUMAR LADDHA, 32 4 ITR 324 (SC) ( SUPRA ) THE COURTS WERE TAKING DIFFERENT VIEW ON WHETHER THIS PROVISION IS APPLICABLE IN RESPECT OF AN APPEAL FILED BEFORE THE TRIBUNAL. THE CHENNAI BENCH OF THIS TRIBUNAL VIDE ITS ORDER DATED AUGUST, 1998 IN THE CASE OF V. BHASKARAN HAS T AKEN THE VIEW THAT PROVISIONS OF SEC. 249(4)(A) WILL APPLY EVEN IN RESPECT OF AN APPEAL FILED BEFORE THE TRIBUNAL. NOW, SINCE THE ISSUE IS SETTLED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PAWAN KUMAR LADDHA, 324 ITR 324 (SC) ( SU PRA ) THAT PROVISIONS OF SEC. 249(4)(A) CANNOT BE READ INTO SEC. 253(1)(B), THEREFORE, WE ARE OF THE VIEW THAT THE COUNSEL OF THE ASSESSEE MAY HAVE UNDER BONA FIDE BELIEF ADVISED THE ASSESSEE NOT TO FILE APPEAL BEFORE THE TRIBUNAL BUT TO MOVE AN APPLICATION U/S 154 BEFORE THE CIT(A). WE NOTED THAT AS SOON AS THE 4 ITA NOS. 29 6,297 & 29 8,299 /PNJ/2014 (ASST. YEARS : 2008 - 09 & 2009 - 10) ORDER OF THE CIT(A) U/S 154 WAS RECEIVED BY THE ASSESSEE, THE ASSESSEE HAS FILED APPEAL BEFORE THIS TRIBUNAL, BOTH AGAINST THE ORDER OF CIT(A) DT D . 22.11.2012 AS WELL AS ORDER DT D . 23.6.2014 . 5. EVEN OTHERWISE ALSO, IN OUR OPINION, INSTANCES WHERE DELAY WAS CAUSED DUE TO THE WRONG ADVICE OR BECAUSE THE ASSESSEE WAS BONA FIDE PURSUING A REMEDY WHICH DID NOT LIE ARE HELD TO BE SUFFICIENT CAUSE FOR CONDONATION OF DELAY. THE HON'BLE SUPREME COURT, W E NOTED, HAS CLEARLY LAID DOWN IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS. MST. KATIJI AND OTHERS , 167 ITR 471 THAT COURTS SHOULD HAVE A PRAGMATIC APPROACH WHILE CONDONING THE DELAY. IN THE CASE OF BALAKRISHNAN VS. M. KRISHNAMURTHY , 7 SCC 123 EVEN TH E DELAY OF 883 DAYS WAS CONDONED. THE HON'BLE SUPREME COURT IN THE CASE OF RAFIQ & ANR. VS. MUNSHIKAK & ANR. , AIR 1981 SC 1400 HAS OBSERVED THAT WE CANNOT BE A PARTY TO AN INNOCENT PARTY SUFFERING INJUSTICE MERELY BECAUSE HIS CHOSEN ADVOCATE DEFAULTED . IN OUR OPINION, RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES, RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGIS LATIVELY FIXED PERIOD OF TIME. THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SUBHASH MALIK VS . CIT, 325 ITR 243 HAS HELD AS UNDER : - RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES, RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. AS FAR AS POSSIBLE THE COURTS DISCRETI ON SHOULD BE EXERCISED IN FAVOUR OF THE HEARING AND NOT TO SHUT OUT HEARING. THE SUPREME COURT IN THE CASE OF WEST BENGAL V. ADMINISTRATOR, HOWRAH MUNICIPALITIES [1972] AIR 1972 SC 749 HAS HELD THAT IF A PARTY HAD ACTED IN A PARTICULAR MANNER ON WRONG ADVI CE GIVEN BY HIS LOCAL ADVISOR HE CANNOT BE HELD GUILTY OF NEGLIGENCE SO AS TO DISENTITLE THE PARTY TO PLEAD SUFFICIENT CAUSE UNDER SECTION 5 OF THE LIMITATION ACT, 1963. IT ALSO HELD THAT THE WORDS SUFFICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION S O AS TO ADVANCE SUBSTANTIAL JUSTICE AND NO NEGLIGENCE OR INACTION FOR WANT OF BONA FIDES IS IMPUTABLE TO A PARTY. IN OUR OPINION, THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE APPEALS WITHIN THE PERMITTED TIME. WE, ACCORDINGLY CON DONE THE DELAY AND ADMIT ITA NO. 296 /PNJ/2014 AND ITA NO.298/ PNJ/2014 . 5 ITA NOS. 29 6,297 & 29 8,299 /PNJ/2014 (ASST. YEARS : 2008 - 09 & 2009 - 10) ITA NO. 29 7 /PNJ/ 2014 AND ITA NO. 29 8 /PNJ/2014 : - 6. IN TH ESE APPEAL S WE NOTED THAT THE ASSESSEE HAS CHALLENGED THE ACTION OF CIT(A) OF NOT RECALLING THE ORDER DT D . 23.06.2014 BY DISMISSING THE APPLICATION OF THE ASSESSEE. AFTER HEARING THE RIVAL SUBMISSIONS WE NOTED THAT U/S 249(4)(A) , NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNLESS AT THE TIME OF FILING THE APPEAL, WHERE RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSES SEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM. IN THIS CASE, WE NOTED THAT THE ASSESSEE HAS NOT PAID THE ENTIRE TAX AS PER THE INCOME RETURNED BEFORE FILING OF THE APPEAL. IN VIEW OF THE CLEAR - CUT PROVISIONS OF SEC. 249(4)(A), IN OUR OPINION, NO MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE ORDER OF CIT(A) DT D . 23.06.2014 BY NOT ADMITTING BOTH THESE APPEALS FILED BY THE ASSESSEE. WE, THEREFORE, DISMISS BOTH THESE APPEAL S FILED BY THE ASSESSEE. 7. ITA NOS. 296 & 298/PNJ/2014 : - WE HEARD THE RI VAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE NOTED THAT THE CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS BUT AS SIMPLY DISMISSED BOTH THE APPEALS FILED BY THE ASSESSEE AS ASSESSEE DID NOT COMPLY WITH THE CONDITION AS STIPULATED U/S 249(4)(A). THI S IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS NOT PAID TAX AS HAS BEEN DUE AS PER THE RETURN FILED BY THE ASSESSEE BEFORE FILING THE APPEAL BEFORE CIT(A) EVEN THOUGH THE ASSESSEE HAD PAID THE TAX BEFORE THE DISPOSAL OF THE APPEAL BY THE CIT(A). THE PROVISI ONS OF SEC. 249(4) (A) ARE VERY CLEAR THAT ADMISSION OF THE APPEAL IS SUBJECT TO THE PAYMENT OF TAX DUE ON THE INCOME RETURN BEFORE FILING OF THE APPEAL BY THE ASSESSEE. WE, THEREFORE, DO NOT FIND ANY ILLEGALITY OR I NFIRMITY IN THE ORDER OF CIT(A) SO FAR AS THE ISSUE OF ADMISSION OF THE APPEAL BY THE CIT(A) IS CONCERNED. 8. WE NOTED THAT THE CIT(A) HAS NOT DISPOSED OF BOTH THESE APPEALS ON MERIT AS HE HAS NOT ADMITTED THESE APPEALS IN VIEW OF THE PROVISIONS OF 6 ITA NOS. 29 6,297 & 29 8,299 /PNJ/2014 (ASST. YEARS : 2008 - 09 & 2009 - 10) SEC.249(4)(A). WE ADMIT BOTH THESE APPEALS AS PROVISIONS OF SEC. 249(4)(A) ARE NOT APPLICABLE TO THIS TRIBUNAL IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. PAWAN KUMAR LADDHA, 324 ITR 324 (SC) (SUPRA) .ACCORDINGLY WE SET ASIDE THE ORDER OF CIT(A). WE THEREFORE, IN THE IN TEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES RESTORE THE ISSUES INVOLVED IN THESE APPEALS TO THE FILE OF THE CIT(A) AND DIRECT THE CIT(A) TO RE - DECIDE THESE APPEALS OF THE ASSESSEE DEALING WITH ALL THE GROUNDS TAKEN BY THE ASSESSEE ON MERIT IN ACCOR DANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 9 . IN THE RESULT, ITA NO S . 29 7 & 299 /PNJ/2014 STANDS D ISMISSED WHILE ITA NO S . 296 & 298 /PNJ/2014 STANDS ALLOWED FOR STATISTICAL PURPOSE. 10 . ORDER PRONOUNCED IN THE OPEN COURT ON 20 / 03 /201 5 . SD/ - (D.T.GARASIA) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI DATED : 20 / 03 /201 5 * A * COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT CONCERNED (4) CIT(A) CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER ASSISTANT REGISTRAR ITAT, PANAJI, GOA