M/s Aditya Medicos, Chandigarh V. DCIT-Central Circle-1, Chandigarh

ITA 301/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4897 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-07-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority; Condonation of delay
• Section: 271(1)(c); 143(3); 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE MRS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI R.L NEGI, JUDICIAL MEMBER ITA NOS. 300 & 301/CHD/2020) / ASSESSMENT YEAR : 2010-11 M/S ADITYA MEDICOS, SHOP NO. 4, NEW SHOPPING COMPLEX, SECTOR 12, CHANDIGARH THE DCIT, CENTRAL CIRCLE-1, CHANDIGARH ./PAN NO: AAQFA8675H APPELLANT /RESPONDENT HEARING THROUGH VIDEO CONFERENCING ! /ASSESSEE BY : SHRI PARIKSHIT AGGARWAL, CA ' ! / REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT SHRI ASHOK KHANNA, ADDL CIT # $ % /DATE OF HEARING : 28.01.2021 &'() % / DATE OF PRONOUNCEMENT : .01.2021 / ORDER PER BENCH: THE ASSESSEE HAS FILED THE CAPTIONED APPEALS AGAINS T ORDER DATED 25.01.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON [(FOR SHORT THE CIT(A)] AND ORDER DATED 7 .6.2019 PASSED BY CIT(A)-3, GURGAON. VIDE FIRST ORDER, THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESS MENT ORDER U/S 144 READ WITH SECTION 143(3) OF THE ACT (FOR SHORT THE ACT) AND VIDE SECOND ORDER THE LD. CIT(A) HAS DISMISSED THE APPEAL FILE BY THE ASSESSEE ITA NOS. 300 & 301-CHD-2020- M/S ADITYA MEDICOS, CHANDIGARH 2 AGAINST THE PENALTY ORDER PASSED BY THE ASSESSING O FFICER U/S 271(1)(C) OF THE ACT. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFOR E US THAT THE ASSESSEE WANTS TO OPT FOR VIVAD SE VISWAS SCHEME, 2 020, HOWEVER, SINCE THERE IS A DELAY IN FILING OF THESE APPEALS A ND AS PER CIRCULAR NO. 21/2020 DATED 4.12.2020 ISSUED BY THE CBDT, THE ASS ESSEE WILL BE ELIGIBLE IN SUCH CASES IF THE COMPETENT AUTHORITY C ONDONES THE DELAY IN FILING THE APPEALS. 3. THE LD. COUNSEL FURTHER SUBMITTED THAT THERE IS A DELAY OF 1061 DAYS IN FILING THE APPEAL AGAINST QUANTUM ORDER PAS SED BY THE LD. CIT(A) AND THERE IS A DELAY OF 334 DAYS IN FILING THE APPE AL AGAINST THE ORDER CONFIRMING PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT ASSESSEE HAS FILED S EPARATE APPLICATIONS FOR CONDONATION OF DELAY DULY SUPPORTED BY AFFIDAVI TS. THE LD. COUNSEL CONTENDED THAT THE ORDER PASSED BY THE LD. CIT(A) H AD SOME FACTUAL MISTAKES AND IN THE OPINION OF THE ASSESSEE THESE W ERE RECTIFIABLE U/S 154 OF THE ACT. ACCORDINGLY, THE ASSESSEE MOVED APP LICATION DATED 30.5.2017 U/S 154 OF THE ACT FOR RECTIFICATION OF T HE APPELLATE ORDER. HOWEVER, THE LD. CIT(A) NEVER FIXED THE HEARING ON THE SAID APPLICATION EVEN AFTER REPEATED REQUESTS MADE BY THE ASSESSEE. THEN AFTER PASSING OF THE PENALTY ORDER, THE ASSESSEE DECIDED TO FILE THE APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER, HOWEVER, KEPT WAITING FOR DECISION ITA NOS. 300 & 301-CHD-2020- M/S ADITYA MEDICOS, CHANDIGARH 3 ON APPLICATION FILED U/S 154 OF THE ACT. THE APPLIC ATION WAS ULTIMATELY DISPOSED OF IN THE MONTH OF JANUARY 2020 BY DISMISS ING THE SAME. THEREAFTER THE PARTNER OF THE ASSESSEE FIRM BECAME ILL AND COULD NOT COMPLETE THE NECESSARY FORMALITIES TO FILE THE APPE ALS. ON 24.03.2020, NATIONWIDE LOCKDOWN IN THE WAKE OF COVID 19 PANDEMI C. AFTER THE GOVERNMENT RELAXED THE RESTRICTIONS THE ASSESSEE GO T ALL THE DOCUMENTS ARRANGED AND FILED THE APPEALS WITHOUT ANY FURTHER DELAY. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE DELAY WAS CAUSED DUE TO REASONS BEYOND CONTROL OF THE ASSESSEE, THE APPLICATIONS FO R CONDONATION OF DELAY IN BOTH THE CASES MAY BE ALLOWED AND THE DELAY MAY BE CONDONED AND THE ASSESSEES APPEALS MAY BE DISMISSED AS WITHDRAWN. 4. THE LD. DR SUBMITTED THAT THE DELAY IN BOTH THE APPEALS ARE INORDINATE AND THE ASSESSEE HAS FAILED TO ESTABLISH SUFFICIENT CAUSE TO CONDONE THE DELAY IN THESE CASES. HOWEVER, THE LD. DR FURTHER SUBMITTED THAT SINCE THE ASSESSEE WANTS TO OPT FOR VIVAD SE VISHWAS SCHEME 2020,LENIENT VIEW MAY BE TAKEN AND THE APPEA LS MAY BE DISPOSED OF ACCORDINGLY. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. AS POINTED OUT BY THE LD. COUNSEL, THE ASSE SSEE MOVED APPLICATION DATED 30.5.2017 U/S 154 OF THE ACT FOR RECTIFICATION OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). THE SAID A PPLICATION WAS DISMISSED BY THE LD. CIT(A) IN THE MONTH OF JANUARY 2020. THEREAFTER ITA NOS. 300 & 301-CHD-2020- M/S ADITYA MEDICOS, CHANDIGARH 4 THE PARTNER OF THE ASSESSEE FIRM BECAME ILL AND COU LD NOT COMPLETE THE NECESSARY FORMALITIES TO FILE THE APPEALS. ON 24.03 .2020, NATIONWIDE LOCK DOWN WAS DECLARED IN THE WAKE OF COVID 19 PAND EMIC. AFTER THE GOVERNMENT RELAXED THE RESTRICTIONS THE ASSESSEE GO T ALL THE DOCUMENTS ARRANGED AND FILED THE APPEALS WITHOUT ANY FURTHER DELAY. 6. THE HON'BLE SUPREME COURT IN THE CASE OF COLLECT OR, LAND ACQUISITION VS MST. KATIJI & ORS (1987) AIR 1353, 1 987 SCR (2) 387 HAS LAID DOWN THE PRINCIPLES TO BE FOLLOWED WHILE D EALING WITH THE ISSUE OF CONDONATION OF DELAY WHICH ARE AS FOLLOWS:- 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CODONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS A FTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. ITA NOS. 300 & 301-CHD-2020- M/S ADITYA MEDICOS, CHANDIGARH 5 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 7. IN THE PRESENT CASES, THOUGH THE DELAY IS INORDI NATE, HOWEVER, IN VIEW OF THE FACT THAT THE ASSESSEE WANTS TO AVAIL T HE BENEFIT OF THE PROVISIONS OF VIVAD SE VISWAS ACT, 2020 AND THE ASS ESSEE HAS EXPLAINED THE CAUSE OF DELAY IN FILING THE PRESENT APPEALS, W E ARE OF THE CONSIDERED VIEW THAT NO PREJUDICE IS GOING TO BE CAUSED TO THE REVENUE IN CASE THE DELAY IS CONDONED IN BOTH THE CASES. ACCORDINGLY, I N VIEW OF THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT I N THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS (SUPRA) WE TAKE A LENIENT VIEW AND ALLOW THE APPLICATIONS FOR CONDONA TION DELAY AND DISMISS BOTH THE CASES OF THE ASSESSEE AS WITHDRAWN WITH THE LIBERTY TO FILE M.AS. FOR RESTORATION OF THE APPEALS IN CASE T HE ISSUES INVOLVED ARE NOT SETTLED UNDER THE PROVISIONS OF VIVAD SE VISVAS ACT, 2020. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 28.01.2021. SD/- SD/- ( ANNAPURNA GUPTA) (R.L.NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : ++ ', -./. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # 0 / CIT ITA NOS. 300 & 301-CHD-2020- M/S ADITYA MEDICOS, CHANDIGARH 6 4. # 0 ( )/ THE CIT(A) 5. .123 , %3 , 45627 / DR, ITAT, CHANDIGARH 6. 268$ / GUARD FILE ', # / BY ORDER, 9' / ASSISTANT REGISTRAR