Wardex Pharmaceuticals Pvt Ltd., CHENNAI V. ACIT, CHENNAI

ITA 3117/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90519 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 25-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN IRS
• Assessee Lawyers: J CHANDRASEKARAN
• Keywords: Charitable institution; Bonafide belief

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , ! ' , # $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A. NOS.3116 & 3117/MDS/2014 ( / ASSESSMENT YEARS : 2007-2008 & 2008-2009) M/S. WARDEX PHARMACEUTICALS PVT. LTD, NO.56, NELSON MANICKAM ROAD, AMINJIKARAI, CHENNAI 600 029. [PAN: AAACW 1036D] ( &' /APPELLANT) VS THE ACIT, COMPANY CIRCLE III(3), CHENNAI 600 034. ( '(&' /RESPONDENT) / APPELLANT BY : SHRI. J. CHANDRASEKARAN, C.A. / RESPONDENT BY : SHRI. N. MADHAVAN, IRS, JCIT. /DATE OF HEARING : 25.06.2015 ! /DATE OF PRONOUNCEMENT : 25.06.2015 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS BY ASSESSEE ARE DIRECTE D AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I II, CHENNAI, DATED 22.01.2014 FOR THE ABOVE ASSESSMENT YEARS. I.T.A.NOS.3116 & 3117/MDS/2014 :- 2 -: 2. THE COMMON GROUND IN THIS APPEAL IS WITH REGARD TO TREATMENT OF SUBSIDY RECEIVED BY THE ASSESSEE FROM THE GOVERN MENT OF WEST BENGAL UNDER A SCHEME FORMULATED BY IT AS REVENUE R ECEIPT. THE ASSESSING OFFICER IN THIS CASE CONSIDERED THE SUBSI DY RECEIVED FROM THE GOVERNMENT OF WEST BENGAL AS REVENUE RECEIPT BY FOL LOWING THE EARLIER YEAR ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE D ATED 28.09.2009 IN ITA NO.366/MDS/2009 AND THE JUDGMENT OF SUPREME COURT IN THE CASE OF SAHNEY STEEL AND PRES WORKS LTD VS. CIT, 228 IT R 253(SC) . AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 3. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. AGAIN ST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THERE WAS A DELAY OF 201 DAYS IN FILING OF APPEALS BEFORE THE TRIBUNAL. THE ASSESSEE FILED AN AFFIDAVIT EXPLAINI NG THE REASON FOR DELAY AS FOLLOWS:- 1. THAT THE DUE DATE OF FILING APPEAL PAPER BEFORE THE INCOME TAX APPELLATE TRIBUNAL IS 11.06.2013 FOR THE ASSESSMENT YEARS 2007- 2008 AND 2008-2009. 2. THAT THE SINGED COPIES OF THE APPEAL PAPERS WERE GI VEN TO BRANCH ACCOUNTANT AT CHENNAI FOR FILING. 3. THAT WE WERE UNDER THE BONAFIDE BELIEF THAT THE BRA NCH ACCOUNTANT WOULD HAVE FILED THE APPEALS. 4. THAT THE BRANCH ACCOUNTANT SUDDENLY LEFT THE JOB AN D THE APPEAL PAPERS KEPT BY HIM COULD NOT BE TRACED. I.T.A.NOS.3116 & 3117/MDS/2014 :- 3 -: 5. THAT WE CAME TO KNOW THAT THE APPEAL PAPERS WERE NO T FILED WITH THE APPELLATE TRIBUNAL, ONLY NOW. 6. HENCE, WE ARE FILING THE APPEAL BEFORE THE INCOME T AX APPELLATE TRIBUNAL NOW. 5. WE HAVE CAREFULLY GONE THROUGH THE REASONS ADV ANCED FOR THE DELAY IN ITS AFFIDAVIT. THERE IS NOTHING ON RE CORD TO INDICATE WHO IS THE ASSESSEES BRANCH ACCOUNTANT AT CHENNAI AND TO WHOM THE APPEALS PAPERS WERE GIVEN. FURTHER, THE ASSESSEE HA D AN IMPRESSION THAT THE ACCOUNTANT WOULD HAVE FILED THE APPEAL PAP ERS. IT WAS STATED THAT THE BRANCH ACCOUNTANT SUDDENLY LEFT THE JOB. HOWEVER, THERE IS NO INDICATION WHEN HE HAD LEFT THE JOB AND HOW THE ASS ESSEE HAS FORMED SUCH AN IMPRESSION. THE ASSESSEE HAS ALSO NOT STAT ED WHEN IT CAME TO ITS KNOWLEDGE THAT THE APPEALS WERE FILED. THE AF FIDAVIT FILED BY THE ASSESSEE WHICH WAS MADE BALD STATEMENT . ON GOING THROUGH THE ABOVE FACTS, IT WAS FOUND THAT THERE EXIST NO SUFFI CIENT CAUSE FOR THE DELAY. IN THE CASE OF SREENIVAS CHARITABLE TRUST VS DCIT, 280 ITR 357, WHEREIN THE ASSESSEE WAS A CHARITABLE TRUST. THE COPY OF THE ORDER SERVED ON THE ASSESSEE WAS MISPLACED AND THER EAFTER IT WAS FOUND AND SENT TO THE COUNSEL FOR PREPARING THE APP EAL AND THEN THE APPEAL WAS PREPARED AND FILED BEFORE THE TRIBUNAL AND IN THAT PROCESS THE DELAY OF 38 DAYS OCCURRED. THE DELAY OF 38 DAY S WAS CONDONED BY THE SUPREME COURT IN VIEW OF THE DECISION OF THE SU PREME COURT I.T.A.NOS.3116 & 3117/MDS/2014 :- 4 -: RENDERED IN THE CASE OF VEDABAI ALIAS VAIJAYANATBAI BAHURAO PATIL VS SHANTARAM BABURAO PATIL, 253 ITR 798 , IN THIS CASE IT WAS HELD THAT IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMIT ATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION M UST BE MADE BETWEEN CASE WHERE THE DELAY IS INORDINATE AND A CA SE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACT OR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROA CH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COU RT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIN D THAT IN CONSIDERING THE EXPRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. IT IS PERTINENT TO NOTE THAT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI 167 ITR 471 , THE DELAY WAS ONLY FOUR DAYS. IN THE CASE OF VEDABAI ALIAS V AIYANANATABAI BADURAO PATIL (SUPRA) THERE WAS A DELAY OF SEVEN DAYS IN FILING THE APPEAL. IN THIS CASE THE SUPREME COURT CLEARLY LAI D DOWN THAT A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE D ELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE LA W ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP OVER THEIR RI GHTS. THIS PRINCIPLE IS EMBODIED IN THE DICTUM: VIGILANTIBUS NON DORMIEN TIBUS JURA I.T.A.NOS.3116 & 3117/MDS/2014 :- 5 -: SUBVENIUNT. THE DELAY CANNOT BE CONDONED SIMPLY BEC AUSE THE ASSESSEES CASE IS HARD AND CALLS FOR SYMPATHY OR M ERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTI NG THE INDULGENCE AND CONDONING THE DELAY IT MUST BE PROVED BEYOND TH E SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GU ILTY OF NEGLIGENCE WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMP LATION OF THE LIMITATION PROVISION MUST BE A CAUSE WHICH IS BEYON D THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE SUPR EME COURT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361 HAS HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFI CIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE, NOR INACTION, OR WANT OF BONAFIDES CAN IMPUTED TO THE A SSESSEE A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN OR DER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. IN THE PRESENT CASE, THE ASSESSEE FAILED TO JUSTIFY TH E REASON FOR THE DELAY AND THE REASON ADVANCED BY THE ASSESSEE CLEARLY STA TE THE REASON WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF T HE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY EXERCISE OF DUE CARE AND ATTENTION. IN OUR OPINION, THERE EXISTS NO SUFFICIENT REASON FOR THE DELAY OF 201 DAYS. WE, THEREFORE DECLINE TO CO NDONE THE DELAY AND I.T.A.NOS.3116 & 3117/MDS/2014 :- 6 -: ACCORDINGLY DISMISS THE APPEALS AS UNADMITTED. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA N OS.3116 & 3117/MDS/2014 ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 25 TH DAY OF JUNE, 2015, AT CHENNAI. SD/- SD/- ( ! ' ) (CHALLA NAGENDRA PRASAD) # / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER '# /CHENNAI. $% /DATED:25.06.2015. KV %& '( )( /COPY TO: 1. * APPELLANT 2. / RESPONDENT 3. + ( )/CIT(A) 4. + /CIT 5. (,- . /DR 6. -/ 0 /GF.