M/s Jyothi Co-Operative Society Ltd., V. C.I,.T., Bangalore

ITA 310/BANG/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6121 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C H SUNDAR RAO CITI
• Assessee Lawyers: S RAMASUBRAMANIAN
• Keywords: Bonafide belief; Condonation of delay
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI PRAMOD M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER ITA NO.310/BANG/2013 ASSESSMENT YEAR : 2008-09 JYOTHI CO-OPERATIVE SOCIETY LTD., RAMADURGAKAR BUILDING, MAIN ROAD, KAMBLE CHAWL, BAGALKOT. PAN : AAATJ 4804H VS. THE COMMISSIONER OF INCOME TAX, BELGAUM. APPELLANT RESPONDENT APPELLANT BY : SHRI S. RAMASUBRAMANIAN, C.A. RESPONDENT BY : SHRI C.H. SUNDAR RAO, CIT-I (DR) DATE OF HEARING : 24.06.2014 DATE OF PRONOUNCEMENT : 24.06.2014 O R D E R PER PRAMOD M. JAGTAP, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX, BELGAUM DATED 3.2.2 012 PASSED U/S. 263 OF THE ACT. ITA NO.310/BANG/2013 PAGE 2 OF 5 2. AT THE OUTSET, IT IS TO BE NOTED THAT THERE IS A DELAY OF 342 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFO RE THE TRIBUNAL. IN THIS REGARD, AN UNDATED APPLICATION FOR CONDONATION OF T HE SAID DELAY SIGNED BY THE PRESIDENT OF THE ASSESSEE SOCIETY IS AVAILABLE ON RECORD, THE CONTENTS OF WHICH ARE AS UNDER:- THE APPELLANT HEREIN SEEKS THE LEAVE OF THE HONBLE TRIBUNAL TO FILE THE FOLLOWING APPLICATION FOR CONDONATION OF D ELAY IN FILING THE APPEAL AGAINST THE ORDER PASSED U/S 263 INCOME TAX ACT, 1961 (ACT) BY LEARNED COMMISSIONER OF INCOME TAX, BELGAU M. THE ORDER U/S 263 WAS SERVED ON 03.2.2012. THE APPEAL S HOULD HAVE BEEN FILED ON OR BEFORE 03.4.2012. THE CHARTERED AC COUNTANT OF THE APPELLANT ADVISED THAT THE APPEAL IS TO BE FILE D AFTER THE RECEIPT OF THE CONSEQUENTIAL ORDER. THE AFFIDAVIT TO THIS E FFECT FROM THE CHARTERED ACCOUNTANT IS ENCLOSED. HENCE, THE APPELL ANT DID NOT FILE THE APPEAL ON OR BEFORE 03.4.2012. LATER, THE APPELLANT WAS ADVISED ABOUT THE CORRECT POSITION IN LAW. THEREFOR E, THE APPELLANT IS FILING THE APPEAL SEEKING CONDONATION OF DELAY. IN VIEW OF THE ABOVE FACTS IT IS PRAYED THAT THE HO NBLE TRIBUNAL BE PLEASED TO CONDONE THE DELAY OF 342 DAYS IN FILI NG THE APPEAL, ADMIT THE APPEAL AND DECIDE THE SAME ON MERITS. 3. ALTHOUGH THE DELAY IN FILING THE APPEAL IS ATTR IBUTED BY THE ASSESSEE IN ITS APPLICATION TO THE WRONG ADVISE GIVEN BY ITS CHARTERED ACCOUNTANT AND HIS AFFIDAVIT TO THIS EFFECT IS ALSO STATED TO BE E NCLOSED WITH THE APPLICATION, THE AFFIDAVIT FILED BY THE ASSESSEE ALONG WITH ITS APPLICATION IS FOUND TO BE MADE BY SHRI B.S. NADAGOUDAR, CHIEF EXECUTIVE OFFIC ER (CEO) OF THE ASSESSEE SOCIETY. THEREAFTER, THE ASSESSEE FILED ANOTHER APPLICATION DATED 24.1.2013 SEEKING CONDONATION OF DELAY ON THE FOLLO WING GROUNDS:- ITA NO.310/BANG/2013 PAGE 3 OF 5 THE APPELLANT HEREIN SEEKS THE LEAVE OF THE HONBL E TRIBUNAL TO FILE THE FOLLOWING APPLICATION FOR CONDONATION OF I N FILING THE APPEAL AGAINST THE ORDER PASSED U/S 263 OF INCOME T AX ACT, 1961 (ACT) BY LEARNED COMMISSIONER OF INCOME TAX, BELGAU M. THE ORDER U/S 263 WAS SERVED ON 03.02.2012. THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 03.04.2012. THE CHIEF EXECU TIVE OFFICER OF THE APPELLANT IS ADVISED THAT THE APPEAL IS TO B E FILED AFTER THE RECEIPT OF THE CONSEQUENTIAL ORDER. THE AFFIDAVIT T O THIS EFFECT FROM THE CHIEF EXECUTIVE OFFICER IS ENCLOSED. HENCE , THE APPELLANT DID NOT FILE THE APPEAL ON OR BEFORE 03.0 4.2012. LATER, THE APPELLANT WAS ADVISED ABOUT THE CORRECT POSITIO N IN LAW. THEREFORE, THE APPELLANT IS FILING THE APPEAL SEEKI NG CONDONATION OF DELAY. IN VIEW OF THE ABOVE FACTS IT IS PRAYED THAT THE HO NBLE TRIBUNAL BE PLEASED TO CONDONE THE DELAY OF 342 DAYS IN FILI NG THE APPEAL, ADMIT THE APPEAL AND DECIDE THE SAME ON MERITS. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE WAS ASKED TO EXPLAIN THE DIFFERENT STANDS TAKEN BY THE ASSESSEE IN THE TWO SEPARATE APPLICATIONS FILED EXPLAINING THE DELAY IN FILING T HE PRESENT APPEAL. THE CONTRADICTION IN THE APPLICATION DATED 24.1.2013 AT TRIBUTING THE DELAY TO THE WRONG ADVISE RECEIVED BY THE CEO AND THE AFFIDAVIT FILED BY THE SAID CEO ATTRIBUTING THE DELAY TO HIS BONAFIDE BELIEF THAT THE APPEAL AGAINST THE SAID ORDER U/S. 263 WAS TO BE FILED BEFORE THE TRIBUNAL ONLY AFTER THE RECEIPT OF THE CONSEQUENTIAL ORDER PASSED BY THE AO, WAS ALSO POINTED OUT TO THE LD. COUNSEL FOR THE ASSESSEE, SEEKING HIS EXPLANATION I N THE MATTER. HE, HOWEVER, COULD NOT OFFER ANY SATISFACTORY EXPLANATI ON IN THIS REGARD AND ACCEPTED FAIRLY AND FRANKLY THAT EVEN THE ASSESSEE IS NOT FORTHCOMING ON ITA NO.310/BANG/2013 PAGE 4 OF 5 THIS ISSUE BY TAKING A SPECIFIC AND DEFINITE STAND ON THE REASON, WHICH ACTUALLY CAUSED THE DELAY IN FILING THIS APPEAL BEF ORE THE TRIBUNAL. 5. IT IS PERTINENT TO NOTE HERE THAT EVEN IN THE ST ATEMENT OF FACTS FILED BY THE ASSESSEE ALONG WITH THE PRESENT APPEAL, THE DEL AY IN FILING THE APPEAL IS ATTRIBUTED BY THE ASSESSEE TO THE WRONG ADVISE GIVE N BY ITS CA, MR. ISHWAR S. YANNI AND IT IS STATED THEREIN THAT THE AFFIDAVI T OF THE SAID CA IS BEING FILED IN SUPPORT OF ITS APPLICATION FOR CONDONATION OF THE DELAY. AS ALREADY NOTED, THE AFFIDAVIT OF THE SAID CA, HOWEVER, HAS N OT BEEN FILED BY THE ASSESSEE TILL DATE IN SPITE OF GIVING SUFFICIENT OP PORTUNITIES BY THE TRIBUNAL TO DO SO AND AS STATED BY THE LD. COUNSEL FOR THE ASSE SSEE AT THE TIME OF HEARING BEFORE US, THE ASSESSEE HAS NOT TAKEN ANY S TEPS TO REMOVE THE CONTRADICTIONS IN THE APPLICATIONS FILED BY IT SEEK ING CONDONATION OF DELAY, OR TO FILE THE AFFIDAVIT OF THE CONCERNED CA TO SUPPOR T AND SUBSTANTIATE THE SAID APPLICATION, DESPITE AT LEAST THREE REMINDERS SENT BY HIM. 6. KEEPING IN VIEW ALL THESE FACTS AND CIRCUMSTANCE S OF THE CASE, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE TO EXERCI SE THE DISCRETION TO CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING ITS PRESENT APPEAL, AS THE ASSESSEE HAS TAKEN DIFFERENT STANDS AT DIFFERENT PO INTS OF TIME WHILE GIVING THE REASONS FOR THE SAID DELAY AND HAS ALSO NOT FIL ED THE AFFIDAVIT FROM THE CONCERNED CA IN ORDER TO SUPPORT AND SUBSTANTIATE I TS APPLICATION. WE, THEREFORE, HOLD THAT THIS APPEAL FILED BY THE ASSES SEE IS BARRED BY LIMITATION AND DISMISS THE SAME AT THE THRESHOLD. ITA NO.310/BANG/2013 PAGE 5 OF 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF JUNE , 2014 . SD/- SD/- ( N.V. VASUDEVAN ) ( PRAMOD M. JAGTAP) JUDICIAL MEMBER ACCOUNT ANT MEMBER BANGALORE, DATED, THE 24 TH JUNE , 2014 . /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR/ SENIOR PRIVATE SECRETARY ITAT, BANGALORE.