M/s. Anik Engineers, Ahmedabad V. The ACIT.,Circle-10, Ahmedabad

ITA 3106/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9097 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 27-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Condonation of delay; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 14A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 3106/AHD/2013 / ASSESSMENT YEAR : 2006-07 M/S. ANIK ENGINEERS, 202-203, SUR SARTHI CENTRE, OPP. CENTRAL BANK OF INDIA, AMBAWADI, AHMEDABAD PAN : AABFA 7316 E VS ACIT, CIRCLE-10, AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVATIA, AR REVENUE BY : SHRI ASHISH POPHARE, DR DATE OF HEARING : 13 /01/2017 DATE OF PRONOUNCEMENT IN COURT : 27/02/20 17 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, A HMEDABAD DATED 07.11.2013 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE TO THE EF FECT THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN :- I) NOT CONDONING THE DELAY OF 16 DAYS IN FILING THE AP PEAL AND YET DECIDING THE APPEAL ON MERITS; II) THOUGH LETTER DATED 07.10.2013 WAS FILED, BY MISTAK E WRONG ASSESSMENT YEAR WAS MENTIONED DUE TO MISUNDERSTANDI NG OF EARLIER COUNSEL AND NEW COUNSELS OFFICE. 1. 3. THE ASSESSE IS AGGRIEVED ON ACCOUNT OF CONFIRMAT ION OF DISALLOWANCE BY LD. CIT(A) IN 1 ST APPEAL ON THE GROUND THAT APPEAL WAS BARRED BY DEL AY OF 16 DAYS WHICH HAS NOT BEEN EXPLAINED SATISFACTORIL Y. RELEVANT FINDINGS OF LD. CIT(A) ARE AS UNDER: 3.1 DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS NOTED THAT THIS APPEAL, FILED BY THE APPELLANT ON 13-02-2012 IN RES PONSE TO ASSESSMENT ORDER SMC-ITA NO. 3106/AHD/2013 M/S. ANIK ENGINEERS VS. ACIT AY :2006-07 2 DT 23-12-2011, WAS LATE WITHIN THE MEANINGS OF SECT ION 249(2) OF THE ACT. RECORDS INDICATED THAT THERE WAS NO REQUEST FOR CON DONATION OF DELAY ON PART OF THE APPELLANT AS PROVIDED FOR SUB SEC 3 OF SECTI ON 249. THE APPEAL HEARING WERE HITHERTO ATTENDED BY ONE SHRI. S N DIVATIA, AD VOCATE, WHO NEITHER ORALLY NOR THROUGH ANY WRITTEN SUBMISSION, INDICATE D THAT THE APPEAL WAS FILED BEYOND THE STATUTORY TIME LIMIT PRESCRIBED U/ S, 249. NOTWITHSTANDING UN AVAILABILITY OF APPELLANTS REQUEST FOR CONDONATI ON OF DELAY, IT WAS CONSIDERED APPROPRIATE, IN THE INTEREST OF NATURAL JUSTICE TO PROVIDE THE APPELLANT WITH, AN OPPORTUNITY OF EXPLAINING THE RE ASONS FOR DELAY IN FILING THE APPEAL. CONSEQUENTLY, A SHOW CAUSE WAS SERVED U PON THE APPELLANT VIDE LETTER BEARING NO CIT(A)-XVI/APPEAL NO 636/AE/2013- 14 DT 7-10-2013 REQUIRING THE APPELLANT TO SHOW CAUSE TO JUSTIFY TH E REASONS FOR THE DELAY, FAILING WHICH THE APPEAL SHALL BE DISMISSED BEING A N INVALID APPEAL. CONSEQUENTLY, ON 1-11-2013, ONE SHRJ MALAV AJMERA, C A ATTENDED WITH A POWER OF ATTORNEY IN HIS FAVOUR AND FILED A LETTER DT 1-11-2013. . 3.2 A PERUSAL OF THE ABOVE CLEARLY INDICATES THAT T HE APPELLANT HAS MISERABLY FAILED TO OFFER ANY SATISFACTORY EXPLANAT ION FOR DELAY IN FILING OF THIS APPEAL. THE APPELLANT HAS SUBMITTED THAT IT HAD CO NSULTED SHRI S.N. DIVATIA FOR FILING OF THE APPEAL AND THAT IT CAME TO ITS NO TICE ONLY NOW THAT APPEAL WAS NOT FILED IN TIME. IT HAS BEEN FURTHER SUBMITTED T HAT THE CONSULTANT WHOSE OFFICE HAD FILED APPEAL IS ACTUALLY 'NOT AWARE OF F ILING AN APPEAL'. THE SUBMISSIONS GIVEN BY THE APPELLANT ARE TOTALLY UNAC CEPTABLE. THE CONSULTANT TO WHOM APPEAL WAS ORIGINALLY GIVEN FOR FILING WAS NONE OTHER THAN SHRI S N DIVATIA. THE ARGUMENT THAT HIS OFFICE IS NOT AWARE OF FILING THIS APPEAL IS UNACCEPTABLE SINCE HAD THAT BEEN THE CASE MR DIVATI A WOULD NOT HAVE ATTENDED THE APPELLATE PROCEEDINGS BEFORE UNDERSIGN ED. FACTS OF THE CASE INDICATE THAT THE APPEAL IS MERELY TRYING TO PASS T HE BUCK FROM ONE END TO ANOTHER SO AS TO JUSTIFY ITS CASE OF DELAY IN FILIN G THE APPEAL. SO BEING THE CASE, NO LENIENCY CAN BE SHOWN TO THE APPELLANT AT THIS S TAGE. IT IS A SETTLED PRINCIPLE OF LAW THAT THE COMMISSIONER (APPEAL) CAN CONSIDER CONDONING THE DELAY IN FILING THE APPEAL U/S. 249(3) PROVIDED HE SATISFIED THAT THE APPELLANT HAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN T HE MANDATORY PERIOD. IN THE INSTANT CASE, IT IS HELD THAT THERE IS NO SUCH SUFF ICIENT CAUSE AVAILABLE WITH THE APPELLANT. CONSEQUENTLY, THE REQUEST FOR CONDONATIO N OF DELAY IS REJECTED AND THE APPEAL IS DISMISSED AS A INVALID APPEAL FILED B EYOND MANDATORY TIME LIMIT PROVIDED U/S. 249(2). SMC-ITA NO. 3106/AHD/2013 M/S. ANIK ENGINEERS VS. ACIT AY :2006-07 3 3.1 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT ADDITION WAS MADE U/S 14A OF THE ACT BY REOPENING THE ASSESSMENT U/S 143( 3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 23.12.2011. AGGRIEVED, THE ASSESS EE PREFERRED FIRST APPEAL CHALLENGING THE VALIDITY OF THE RE-OPENING AS WELL AS ADDITION OF RS.1,88,894/- U/S 14A OF THE ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ASSESSEE FIL ED WRITTEN SUBMISSIONS DATED 02.07.2013 IN RESPECT OF GROUNDS OF APPEAL. 3.2 THE LD COUNSEL FOR THE ASSESSEE FURTHER CONTEND S THAT THE DELAY OF 16 DAYS IN FILING THE APPEAL WAS LATER ON NOTICED BY C IT(A) AND ASSESSE WAS GIVEN SHOW CAUSE IN THIS BEHALF, WHICH WAS EXPLAINE D. 3.3 IT WAS FURTHER SUBMITTED THAT THERE EXISTED SOM E CONFUSION AND MISUNDERSTANDING AS A.Y. 2009-10 WAS MENTIONED IN T HE NOTICE DT 07.10.2013, THE NEW AR- SHRI MALAV AJMERA UNDERSTOO D THAT THE DETAILS WERE CALLED FOR THE YEAR RELATING TO A.Y. 2009-10. HE IN QUIRED IN THE OFFICE OF THE THEN AR ABOUT THE DOCUMENTS RELATING TO THIS YEAR, HE WAS INFORMED OVER TELEPHONE BY THE OFFICE CLERK-SHRI ALKESH PRAJAPATI OF THE PREVIOUS AR THAT THERE WAS NO SUCH DOCUMENTS OR APPEAL IN THEIR OFFI CE. THUS THERE WAS MISUNDERSTANDING AT BOTH THE ENDS WHICH RESULTED IN THE FAILURE TO FURNISH PROPER EXPLANATION FOR DELAY IN FILING THE APPEAL. THE FACT OF THE MATTER WAS THAT THE SMALL DELAY WAS CAUSED DUE TO THE FAILURE OF HIS OFFICE STAFF IN HANDING OVER THE CASE PAPERS WELL IN ADVANCE TO SHR I S.N. DIVATIA, ADVOCATE FOR PREPARATION OF THE APPEAL. THE NECESSARY PAPERS , DOCUMENTS ETC WERE HANDED OVER IN THE FIRST WEEK OF FEBRUARY 2012 AS N OTICED FROM THE APPEAL MEMO AND PAYMENT OF APPEAL FEES. THEREFORE, THE DE LAY IN FILING THE FIRST APPEAL SHOULD BE CONDONED IN THE INTEREST OF JUSTIC E AND EQUITY APART FROM THERE BEING A SUFFICIENT CAUSE FOR THE SAME. 3.4 IT IS CONTENDED THE DELAY WAS CAUSED BY ABOVE M ISUNDERSTANDING, THE LD. CIT(A) TOOK ADVERSE INFERENCE AND IT WAS HELD T HAT THE APPEAL IS BARRED SMC-ITA NO. 3106/AHD/2013 M/S. ANIK ENGINEERS VS. ACIT AY :2006-07 4 BY LIMITATION BY 16 DAYS AND CONFIRMING THE ADDITIO N BY MERELY MENTIONING THAT THERE WAS MERIT IN THE ORDER OF THE ASSESSING OFFICER. IT IS CONTENDED THAT IF AT ALL THERE WAS MISUNDERSTANDING ATTRIBUTA BLE TO THE COUNSELS HANDLING THE CASE AND ASSESSE SHOULD NOT BE PUNISHE D FOR THE DEFICIENCIES OF COUNSEL IN TAKING DUE DILIGENCE FOR FILING THE APPE AL IN TIME. RELIANCE IS PLACED ON THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS., REPORTED IN 167 ITR 471 (SC) FOR THE PROPOSITION THAT WHEN TECHNICAL CONSID ERATIONS ARE PITTED AGAINST THE CAUSE OF SUBSTANTIAL JUSTICE, THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. IT IS CONTENDED THAT DOE THE CONF USION AND MISTAKES ATTRIBUTABLE TO COUNSELS THE ASSESSEES IS SUFFERIN G. IT IS, THEREFORE, PRAYED THE IN THE INTEREST OF SUBSTANTIAL JUSTICE APPEAL ORDER MAY BE SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO DECI DE THE SAME AFRESH AFTER ALLOWING THE ASSESSEE AN ADEQUATE OPPORTUNITY OF BE ING HEARD ON ALL RELEVANT ISSUES. 4. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND CONTENDS TH AT THE COUNSELS HAVE BEEN UTTERLY NEGLIGENT WHICH IS LEADING TO MULTIPLICITY OF PROCEEDINGS. THE DELAY SHOULD NOT BE CONDONED. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IT EMERGES FROM THE FACTS THAT THE CONDONATION OF DELAY WAS RE FUSED FOR THE MISTAKES ATTRIBUTABLE TO COUNSELS. IT IS SETTLED LAW THAT F OR THE LAPSES ON THE PART OF COUNSELS, ASSESSE SHOULD NOT SUFFER. HOWEVER IT IS DESIRABLE THAT PROFESSIONALS SHOULD MAINTAIN STANDARDS AND NOT GLO SS OVER THE INTEREST OF ASSESSEES BY ACTING IN A PERFUNCTORY MANNER. RELYI NG ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS. (SUPRA) AND IN THE INTEREST OF SUBSTA NTIAL JUSTICE, THE GROUNDS TAKEN BY ASSESSEE ARE RESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SMC-ITA NO. 3106/AHD/2013 M/S. ANIK ENGINEERS VS. ACIT AY :2006-07 5 ISSUE AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNI TY OF BEING HEARD. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 27/02/2017 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD