M/s Shimla Medicos, Chandigarh V. DCIT-CC-1, Chandigarh

ITA 303/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4896 (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: Period of limitation; Competent authority; Time period of passing order; Condonation of delay
• Section: 271(1)(c); 143(3); 144

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. 302 & 303/CHD/2020) / ASSESSMENT YEAR : 2010-11 SHIMLA MEDICOS, SHOP NO.2, OLD SHOPPING COMPLEX, CIRCLE 1, PGIMER, SECTOR 12, CHANDIGARH THE DCIT, CENTRAL CIRCLE-1, CHANDIGARH ./PAN NO: ABNFS3329N 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 : 28..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. 302 & 303-C-20- SHIMLA 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 1189 DAYS IN FILING THE APPEAL AGAINST QUANTUM ORDER PAS SED BY THE LD. CIT(A) AND THERE IS A DELAY OF 307 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 FURTHER SUBMITTED THAT APPELLANT IS A PARTNERSHIP F IRM AND HAD A CONTRACT TO RUN CHEMIST SHOP IN PGI CHANDIGARH. THE TERMS OF THE SAID CONTRACT HAD EXPIRED EARLIER TO 2015 AND THE FIRM HAD TO VAC ATE THE PREMISES. DURING PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A) , THE FIRM CLOSED ALL ITS OPERATIONS DUE TO WHICH ORDER PASSED BY THE LD. CIT(A) WAS NEVER SERVED ON THE APPELLANT FIRM. IT WAS ONLY DURING TH E PROCEEDINGS U/S 271 (1)(C) OF THE ACT, THE ASSESSEE CAME TO KNOW ABOUT THE PASSING OF THE IMPUGNED APPELLATE ORDER. THEREAFTER, THE PARTNERS AUTHORIZED TO SIGN THE ITA NOS. 302 & 303-C-20- SHIMLA MEDICOS, CHANDIGARH 3 APPEAL ON BEHALF OF THE APPELLANT-ASSESSEE, WHO WAS NOT KEEPING GOOD HEALTH WAS ADMITTED TO PGI CHANDIGARH FOR TREATMENT . THE LD. COUNSEL INVITED OUR ATTENTION TO THE COPY OF MEDICAL CARD I SSUED BY PGI CHANDIGARH ATTACHED ALONG WITH THE APPLICATION FOR CONDONATION OF DELAY. ACCORDINGLY, THE LD. COUNSEL SUBMITTED THAT SINCE THE DELAY WAS CAUSED DUE TO THE REASON BEYOND THE CONTROL OF THE APPELLANT AND BONA FIDE , THE APPLICATIONS MAY BE ALLOWED AND THE DELAY MAY BE CONDONED IN BOTH THE APPEAL AND THAT BOTH THE APPEALS MAYBE DIS MISSED AS WITHDRAWN. 4. THE LD. DR SUBMITTED THAT THE DELAY IN BOTH THE CASES ARE INORDINATE AND THE ASSESSEE HAS FAILED TO PROVE SUF FICIENT CAUSE FOR CONDONATION OF SUCH DELAY. HOWEVER, THE LD. DR FURT HER SUBMITTED THAT SINCE THE ASSESSEE WANTS TO OPT FOR VIVAD SE VISHWA S SCHEME 2020, A LENIENT VIEW MAY BE TAKEN AND THE APPEALS MAY BE DE CIDED ACCORDINGLY. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY BOTH THE S IDES AND PERUSED THE MATERIAL ON RECORD. AS POINTED OUT BY T HE LD. COUNSEL, SINCE THE ASSESSEE HAD CLOSED ITS BUSINESS OPERATIONS THE ASSESSEE COULD NOT RECEIVE THE ORDER PASSED BY THE LD. CIT(A). THE DEP ARTMENT HAS NOT REBUTTED THESE FATS. FURTHER, THE ASSESSEE COULD NO T FILE THE APPEALS WITHIN LIMITATION PERIOD AS THE PARTNER OF THE ASSE SSEE HAD TO UNDERGO MEDICAL TREATMENT DUE TO HIS ILL HEALTH. ITA NOS. 302 & 303-C-20- SHIMLA MEDICOS, CHANDIGARH 4 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 CONDONED TH E HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER 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. 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, ALTHOUGH THE DELAY IS INOR DINATE, YET, IN VIEW OF THE FACT THAT THE ASSESSEE WANTS TO AVAIL THE BE NEFIT OF THE PROVISIONS OF VIVAD SE VISWAS ACT, 2020 AND THE ASSESSEE HAS E XPLAINED THE CAUSE ITA NOS. 302 & 303-C-20- SHIMLA MEDICOS, CHANDIGARH 5 OF DELAY IN FILING THE PRESENT APPEALS, WE ARE OF T HE CONSIDERED VIEW THAT NO PREJUDICE IS GOING TO BE CAUSED TO THE REVENUE I N CASE THE DELAY IS CONDONED IN BOTH THE CASES. ACCORDINGLY, IN VIEW OF THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS (SUPRA) WE TAKE A LENIENT VIEW AND ALLOW THE APPLICATIONS FOR CONDONATION DELAY AND DI SMISS BOTH THE CASES OF THE ASSESSEE AS WITHDRAWN WITH THE LIBERTY TO FI LE M.AS. FOR RESTORATION OF THE APPEALS IN CASE THE ISSUES INVOL VED 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 4. # 0 ( )/ THE CIT(A) 5. .123 , %3 , 45627 / DR, ITAT, CHANDIGARH 6. 268$ / GUARD FILE ', # / BY ORDER, 9' / ASSISTANT REGISTRAR