J. Stephen, CHENNAI V. ITO, Coimbatore

ITA 3120/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5885 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN JCIT D R
• Assessee Lawyers: MRS S SRINIRANJANI

Judgement Text

, B/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL B/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.3120 /MDS./2016 ( ASSESSMENT YEAR : 2009-10 ) MR.J.STEPHEN , 428-A,BEHIND LADIES HOSTEL, KARUNYA NAGAR P.O, COIMBTORE 641 114. VS. THE INCOME TAX OFFICER, WARD V(1), COIMBATORE. PAN BBNPS 0316 J ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MRS.S.SRINIRANJANI,ADVOCATE / RESPONDENT BY : MR.B.SAGADEVAN, JCIT, D.R ! ' / DATE OF HEARING : 01.11.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 01.11.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-3, CHENNA I DATED 29.06.2015 PERTAINING TO ASSESSMENT YEAR 2009-10. ITA NO.3120 /MDS/2016 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR ADJUDICATION. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING THE ORDER OF THE ASSESSING OFFICER IS IL LEGAL, CONTRARY TO LAW AND FACTS AND IS LIABLE TO BE DISMISSED IN FULL. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N CONFIRMING THE ADDITION OF RS 33,17 177/- AS UNEXPLAINED INCOME OF THE ASSESSEE 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT CONSIDERED THE DETAILED EXPLANATIONS PRODUCED BEFORE HIM FOR THE A FORESAID CASH DEPOSITS AND THUS THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS) DOES NOT HOLD ANY MERIT. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE DETAILED EVIDENCES OF MRS. GNANAGANDHI. IN FACT, TH ERE IS A FINDING IN THE REMAND REPORT OF THE ASSESSING OFFICER THAT MRS. GN ANAGANDHI WAS PAID BY THE BUYER IN CASH. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE ALSO CONSIDERED THE EXPLANATION OFFERED FOR THE OTHER CASH DEPOSITS . 3. THE FACTS OF THE CASE ARE THAT FOR ASSESSMENT Y EAR 2009-10, THE ASSESSEE FILED HIS RETURN OF INCOME ON 22.05.2 009 DECLARING AN INCOME OF ` 4,40,3301-. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED U/S 143 (3) VIDE ORDER DAT ED 29.05.2011, ITA NO.3120 /MDS/2016 3 WHEREIN AN AMOUNT OF ` 32,17,717/- WAS ADDED AS UNDISCLOSED CASH DEPOSIT INTO BANK ACCOUNT WITH IDBI. AGAINST THE A FORESAID ORDER OF ASSESSMENT, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) COIMBATORE, WHO VIDE ORDER DATED 29.06.015 DISMISSE D THE APPEAL WITHOUT CONSIDERING THE DETAILED SUBMISSIONS OF THE PETITIONER. AGAINST THE AFORESAID ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), NOW THE ASSESSEE IS PREFERRING AN APPEA L BEFORE THIS TRIBUNAL. 4. AT THE OUTSET, IT WAS NOTICED THAT THERE WAS A DELAY OF 72 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. THE ASSESSE E STATED IN HIS SUBMISSION AS FOLLOWS:- AT THE OUTSET, IT IS SUBMITTED THAT THE PETITIONER WAS UNAWARE OF THE DISPOSAL OF THE AFORESAID APPEAL BY THE COMMISSIONE R OF INCOME-TAX (APPEALS), COIMBATORE. HE WAS UNDER THE BONA FIDE B ELIEF THAT IT WAS PENDING DISPOSAL. ONLY WHEN HE WAS REMINDED OF THE DEMAND BY THE DEPARTMENT, THE PETITIONER CAME TO KNOW ABOUT THE O RDER WHICH WAS MISPLACED BY HIM. ITA NO.3120 /MDS/2016 4 UPON AN IMMEDIATE SEARCH IN THE OFFICE PREMISES OF THE PETITIONER, HE FOUND THAT THE APPELLATE ORDER WAS MISPLACED BY HIS STAFF AND SUBSEQUENTLY WAS LOST TRACK OF. IT IS SUBMITTED THAT THE DELAY IN FILING THE PRESEN T APPEAL IS NEITHER WILFUL NOR WANTON BUT DUE TO THE REASONS STATED ABOVE. THE PETITIONER HAS A GOOD CASE ON MERITS AND WILL BE PUT TO IRREPARABLE LOSS AND HARDSHIP IF THE AFORESAID APPEAL IS NOT ADMITTED BY THIS HONBL E TRIBUNAL. HENCE THE PETITIONER PRAYS THAT THIS HONBLE TRIBUN AL BE PLEASED TO (I) CONDONE THE DELAY IN FILING THE ABOVE APPEAL; (II) HEAR AND DISPOSE OF THE APPEAL ON MERITS; AND (III) PASS SUCH FURTHER OR OTHER ORDER OR ORDERS AS THIS HONBLE TRIBUNAL MAY DEEM FIT AND NECESSARY IN THE CIRCUMSTANCES OF THE CASE AND THUS RENDER JUSTICE. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, I AM OF THE OPINION THAT IN THIS CASE, TH E DELAY OF 72 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL IS ON ACCOUN T OF NEGLIGENCE OF ASSESSEE, AND IT CANNOT BE CONDONED ON SIMPLE REAS ON THAT THE CASE CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING T HE DELAY, IT MUST BE ITA NO.3120 /MDS/2016 5 PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLAN T WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISIO NS MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING T HE AID OF THE PROVISIONS. THE HONBLE SUPREME COURT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD. IN AIR 1961 (SC) 361 HAS HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CA RE AND ATTENTION, COULD HAVE BEEN AVOIDED, CANNOT BE A SUFFICIENT CAU SE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLI GENCE OR INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPELLAN T, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN OR DER TO ADVANCE SUBSTANTIAL JUSTICE. 5.2 IN THE PRESENT CASE, THE REASON ADVANCED BY TH E ASSESSEE CANNOT BE CONSIDERED AS GOOD AND SUFFICIENT REASON TO CONDONE THE DELAY. THE REASONS ADVANCED BY THE ASSESSEE REALLY SHOW THAT THE DELAY WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY EXERCISING OF DUE CARE AND ATTENTION. IN MY OPINION , THERE EXISTS NO ITA NO.3120 /MDS/2016 6 SUFFICIENT AND GOOD REASON FOR DELAY OF FILING THE APPEAL BY 72 DAYS. THEREFORE, I AM OF THE OPINION THAT THIS KIND OF DE LAY DOES NOT WARRANT CONDONATION, SINCE THE ASSESSEE HAS NOT SHOWN VALID REASONS CAUSE FOR FILING THE APPEAL BELATEDLY BY SUCH INORDINATE DELAY OF 72 DAYS. ACCORDINGLY, THIS APPEAL OF ASSESSEE STANDS DISMISS ED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMIS SED. ORDER PRONOUNCED ON 1 ST NOVEMBER, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 1 ST NOVEMBER, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF