M/s. Danieli India Limited, Kolkata V. DCIT, Circle-2(1), Kolkata

ITA 305/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5180 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-10-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 12-03-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Right to appeal; Condonation of delay; Co-operative Credit Society
• Section: 250; 113

Judgement Text

1 ITA NO.305/KOL/2020 M/S. DANIELI INDIA LTD., AY- 2011-12 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA ( ) . . , . . , ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) &SHRI A. T. VARKEY, JM] ITA NO.305/KOL/2020 ASSESSMENT YEAR: 2011-12 M/S. DANIELI INDIA LTD. (PAN: AABCG5359E) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 05.10.2020 DATE OF PRONOUNCEMENT 09.10.2020 FOR THE APPELLANT S/SHRI SAMIR CHAKRABORTY&ABHIJIT BISWAS, ADVOCATES FOR THE RESPONDENT SHRI JAYANTAKHANRA, JCIT, CIT, DR ORDER PER A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-12, KOLKATA DATED 27-02-2017FOR ASSESSMENT YEAR 2011-12. 2. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SHRI SAMIR CHAKRABORTY, ADVOCATE BROUGHT TO OUR NOTICE THAT THE IMPUGNED ORDER HAS BEEN PASSED EX PARTE QUA THE ASSESSEE. ACCORDING TO THE LD. COUNSEL, THERE IS A DELAY OF 1000 DAYS IN FILING THIS APPEAL BEFORE THIS TRIBUNAL. THE LD. COUNSEL DREW OUR ATTENTION TO THE CONDONATION OF DELAY APPLICATION AS WELL AS AN AFFIDAVIT SUPPORTING THE FACTS THAT CAUSED THE DELAY. ACCORDING TO THE ASSESSEE, IT HAD FILED AN APPEAL BEFORE THE LD. CIT(A)-1 AGAINST THE ORDER OF THE DCIT (AO). ACCORDING TO THE LD. COUNSEL, THE APPEAL FILE WAS TRANSFERRED TO THE JURISDICTION OF LD. CIT(A)-12. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE DID NOT RECEIVE THE NOTICE OF CHANGE OF JURISDICTION FROM CIT(A)-1 TO CIT(A)-12 AND CAME TO KNOW ABOUT IT ONLY ON ENQUIRY FROM THE OFFICE OF THE LD. CIT(A)-1 AND THAT HAPPENED ONLY IN THE YEAR 2017. ACCORDING TO LD. COUNSEL, MEANWHILE THE MANAGEMENT OF THE ASSESSEE COMPANY TOOK MEASURES TO DOWNSIZE THE STRENGTH OF THE EMPLOYEES AND ALSO TO REDUCE THE COST NUMBER OF OFFICES WERE REDUCED AND DUE TO VARIOUS MEASURES TAKEN THE FILES OF LITIGATION IN THIS CASE GOT MISPLACED. IN 2 ITA NO.305/KOL/2020 M/S. DANIELI INDIA LTD., AY- 2011-12 JANUARY, 2020 WHEN THE ASSESSEE TOOK STOCK OF THE LITIGATION PENDING BEFORE VARIOUS AUTHORITIES CAME TO KNOW FROM THE OFFICE OF LD. CIT(A)-12 THAT THE APPEAL OF AY 2011-12 HAS ALREADY BEEN DISPOSED OF BY AN ORDER DATED 27.02.2017 EX PARTE QUA THE ASSESSEE. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE NEVER RECEIVED COPY OF THE IMPUGNED ORDER FROM THE LD. CIT(A) DATED 27.02.2017. IMMEDIATELY THEREAFTER, THE ASSESSEE OBTAINED CERTIFIED COPY OF THE IMPUGNED ORDER AND FILED THE APPEAL BEFORE THIS TRIBUNAL ON 12.03.2020. THUS THERE WAS A DELAY OF 1009 DAYS IN FILING THE APPEAL. ACCORDING TO LD. COUNSEL, THE ASSESSEE WAS TOTALLY IN DARK ABOUT THE STATUS OF THE APPEAL FOR AY 2011-12 WHICH WAS THE CAUSE FOR THE DELAY AND IT WAS NOT A DELIBERATE ACT ON THE PART OF THE ASSESSEE. THE LD. COUNSEL POINTED OUT THAT THE AO HAS ASSESSED THE TOTAL INCOME OF THE ASSESSEE TO THE TUNE OF MORE THAN RS.50 CR. (RS.50,42,90,616/-) AND, THEREFORE, IT CANNOT EVEN BE PRESUMED THAT ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL BEFORE LD. CIT(A). FOR THE AFORESAID REASON, THE LD. COUNSEL FOR THE ASSESSEE PLEADED TO CONDONE THE DELAY AND CITED THE FOLLOWING JUDGMENTS IN HIS SUPPORT; 1. SENIOR BHOSALE ESTATE (HUF) VS. ASSISTANT COMMISSIONER OF INCOME TAX, [2019] 112 TAXMANN.COM 134(SC) 2. N. BALAKRISHNANVS. M. KRISHNAMURTHY, (1998) 7 SCC 123 3. COLLECTOR, LAND ACQUISITION, ANANTNAG&ANR. VS. MST. KATIJI&ORS., (1987) 2 SCC 107 4. GOLDEN TIMES SERVICES (P.) LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX, (2020) 113 TAXMANN.COM 524(DELHI) 5. MS. SWATI PAWA VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-9, NEW DELHI, [2019] 103 TAXMANN.COM 300(DELHI- TRIB) 6. CHILDREN AID SOCIETY EMPLOYEES CO-OPERATIVE CREDIT SOCIETY LTD. VS. INCOME TAX OFFICER-27(3)(4), [2020] 117 TAXMANN.COM 920 (MUMBAI-TRIB.) 3. PER CONTRA, THE LD. DR VEHEMENTLY OPPOSED THE PLEA OF THE ASSESSEE AND CONTENDED THAT THE LAW DOES NOT HELP A SLEEPING PERSON/LITIGANT. ACCORDING TO THE LD. DR, THE ASSESSEE SHOULD HAVE BEEN VIGILANT AND OUGHT TO HAVE PURSUED THE CASE DILIGENTLY AND IN CASE EVEN IF TRIBUNAL IS INCLINED TO CONDONE THE DELAY THEN COST SHOULD BE LEVIED ON THE ASSESSEE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE AFORESAID FACTS ARE SUPPORTED BY AFFIDAVIT SWORN BY THE DIRECTOR OF THE ASSESSEE 3 ITA NO.305/KOL/2020 M/S. DANIELI INDIA LTD., AY- 2011-12 COMPANY WHICH WAS NOTARIZED AS ON 12.03.2020. SINCE THE ASSESSEE DID NOT RECEIVE THE COPY OF THE IMPUGNED ORDER OF LD. CIT(A) DATED 27.02.2017 AND SINCE THE CASE FILE GOT MISPLACED BECAUSE THE ASSESSEE COMPANY HAD UNDERTAKEN COST CUTTING MEASURES WHICH RESULTED IN ASSESSEE CONSOLIDATING THEIR WORKS IN MANY PREMISES TO ONE PLACE AND THUS, THE ASSESSEE LOST TRACK OF THE APPEAL AND EVENTUALLY WHEN IT ENQUIRED IN JANUARY, 2020 CAME TO KNOW ABOUT THE DISPOSAL OF THE APPEAL EX PARTE BY THE LD. CIT(A)-12. WE NOTE THAT ASSESSEE HAD FILED THE APPEAL ORIGINALLY BEFORE THE LD. CIT(A)-1 AND THE JURISDICTION GOT TRANSFERRED TO LD. CIT(A)-12 WHICH FACT ASSESSEE CAME TO KNOW BELATEDLY AND THEREAFTER THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER DATED 27.02.2017. SINCE THE ASSESSEE WAS NOT AWARE ABOUT THE DISPOSAL OF THE APPEAL EX PARTE AGAINST THE ASSESSEE AND CAME TO KNOW ABOUT IT ONLY IN JANUARY/FEBRUARY, 2020 AND THEREAFTER THE ASSESSEE HAD IMMEDIATELY TAKEN STEPS TO FILE THE APPEAL BEFORE THIS TRIBUNAL ON 12.03.2020, THUS, THE DELAY WAS CAUSED IN FILING OF THE APPEAL. WE HAVE GONE THROUGH THE JUDGMENTS CITED BY LD. AR FOR CONDONING THE DELAY. FOR THE ENDS OF JUSTICE, THE APPEAL OF THE ASSESSEE NEEDS TO BE ADJUDICATED ON MERITS. IT SHOULD BE KEPT IN MIND THAT IF AN ASSESSEE IS AGGRIEVED BY THE ORDER OF THE AO, THEN IT (ASSESSEE) HAS A STATUTORY RIGHT TO FILE AN APPEAL BEFORE THE LD. CIT(A). THIS VALUABLE/STATUTORY RIGHT OF THE ASSESSEE CANNOT BE LIGHTLY BRUSHED ASIDE BY PASSING NON- SPEAKING ORDER AND WITHOUT GOING THROUGH THE MERITS OF THE ISSUES RAISED IN THE APPEAL. THE LD. CIT(A) SHOULD HAVE DECIDED THE APPEAL ON MERITS AS STIPULATED IN SUB-SECTION (6) OF SECTION 250 OF THE ACT WHICH READS AS UNDER: 250(6). THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. 5. BEFORE US THE ASSESSEE HAS UNDERTAKEN TO DILIGENTLY APPEAR BEFORE THE LD. CIT(A) IF GIVEN A CHANCE, THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL SUBJECT TO LEVY OF COST OF RS. 5000/- WHICH SHOULD BE DEPOSITED WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER. AND IF THE ASSESSEE SATISFIES THIS CONDITION THEN THE APPEAL OF THE ASSESSEE SHALL BE RESTORED BEFORE THE LD. CIT(A); AND THEREAFTER THE LD. CIT(A) IS DIRECTED TO CONSIDER THE APPEAL AND PASS ORDER AFTER HEARING THE ASSESSEE AS PER SECTION 250(6) OF THE ACT. NEEDLESS TO SAY THE ASSESSEE TO FILE WRITTEN SUBMISSION/DOCUMENTS, IF ANY/IF ADVISED, BEFORE THE LD. CIT(A) TO SUBSTANTIATE ITS CASE AND APPEAR DILIGENTLY BEFORE THE LD. CIT(A). 4 ITA NO.305/KOL/2020 M/S. DANIELI INDIA LTD., AY- 2011-12 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 9 TH OCTOBER, 2020 SD/- SD/- P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIALMEMBER DATED :9 TH OCTOBER, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. DANIELI INDIA LTD., TECHNOPOLIS, 5 TH FLOOR, BLOCK BP, PLOT-4, SECTOR-V, SALT LAKE, KOLKATA-700 091. 2 RESPONDENT DCIT, CIRCLE-2(1), KOLKATA. 3. 4. 5. CIT(A)-12, KOLKATA. (SENT THROUGH E-MAIL) CIT- , KOLKATA DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA.