MANJU RAJAWAT, Jaipur V. ITO, Jaipur

ITA 315/JPR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9717 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 28-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Unexplained expenditure; Reasonable cause; Condonation of delay; Reassessment proceedings
• Section: 12AA; 147; 69; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 315/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2007-08 SMT. MANJU RAJAWAT 107, DWARKAPURI RAMNAGARIYA, JAGATPURA, JAIPUR. CUKE VS. THE ITO, WARD-6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGAPR 7117 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ROHAN SOGANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/09/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 25/09/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-2, JAIPUR DATED 30.03.2016 FOR THE ASSESSMEN T YEAR 2007-08 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD . AO IN REOPENING THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIE D, ARBITRARY AND ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 2 AGAINST THE FACTS OF THE CASE, RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSESSMENT PROCEEDINGS BEING ILLEGAL AND WITHOUT ANY BASIS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD . AO IN MAKING ASSESSMENT U/S 144 OF INCOME TAX ACT, 1961. THE ACT ION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND A GAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSESSMENT PROCEEDINGS BEING ILLEGAL AND WITHOUT ANY BASIS. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD . AO BY ADDING TO THE EXTENT OF RS. 4,00,000/- OUT OF TOTAL ADDITI ON OF RS. 14,80,000/- AS UNEXPLAINED EXPENDITURE U/S 69 OF TH E INCOME TAX ACT, 1961. THE ACTION OF THE CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE ADDITION OF RS. 4,00,000/- 2. FIRSTLY, IT IS NOTED THAT THERE IS A DELAY IN FI LING THE APPEAL BY THE ASSESSEE. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SUPPORTED BY AN AFFIDAVIT STATING THAT SHE WAS NOT FULLY AWAR E OF LEGAL PROCEDURE UNDER THE INCOME TAX ACT AND WAS DEPENDENT ON HER C HARTERED ACCOUNTANT FOR THE NECESSARY SUPPORT WITH REGARD TO THE PROCEEDINGS UNDER THE INCOME TAX ACT. IT WAS SUBMITTED THAT THE SAID CHARTERED ACCOUNTANT WAS NOT REGULARLY APPEARING BEFORE THE I NCOME TAX AUTHORITIES AND AS A RESULT, IN THE MATTER FOR THE YEAR UNDER CONSIDERATION AND ALSO FOR THE SUBSEQUENT YEAR, THE CASE WAS DECIDED EX-PARTE AND NO COMPLIANCE WAS MADE BY THE CA WHO W AS ENTRUSTED WITH SUCH RESPONSIBILITY. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE WAS NOT AWARE OF ORDER PASSED BY THE LD. CIT(A) FOR THE IMPUGNED ASSESSMENT YEAR, HOWEVER, THE SAME CAME TO HER NOTI CE WHEN SHE WAS ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 3 APPROACHED BY THE DEPARTMENT FOR RECEIVING THE ORDE R OF THE SUBSEQUENT YEAR AND FOR THE PURPOSE OF LEVY OF PENA LTY U/S 271(1)(C) OF THE ACT. IT WAS FURTHER SUBMITTED THAT SHE HAS S INCE CHANGED HER CA AND APPOINTED AN ADVOCATE TO TAKE CARE OF HER TAX M ATTERS. IT WAS ACCORDINGLY SUBMITTED THAT INCOME TAX BEING A COMPL EX SUBJECT AND LACK OF ITS KNOWLEDGE CONSTITUTES A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL AND DELAY SO OCCURED IN FILING THE APPE AL MAY BE CONDONED. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN CASE OF M/S HOSANNA MINISTRIES VS. ITO(E) IN ITA NO. T.C.A. NO. 3 OF 2017 DATED 07.03.2017 AND THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF COLLECTOR, LAND ACQUISITION VS. MS T. KATIJI 167 ITR 471. 3. THE LD. DR IS HEARD WHO HAS OBJECTED TO THE APPL ICATION FILED BY THE ASSESSEE FOR SEEKING CONDONATION OF DELAY. IT W AS SUBMITTED THAT NO REASONABLE CAUSE HAS BEEN SUBMITTED BY THE ASSESSEE FOR THE DELAY IN FILING THE APPEAL AND ACCORDINGLY, CONDONATION OF A PPLICATION SHOULD NOT BE ACCEPTED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAD ENGAGED A CHARTERED ACCOUNTANT AND DUE TO LAXITY ON PART OF THE CHARTER ED ACCOUNTANT AS SO CLAIMED, THE ASSESSMENT ORDER WAS PASSED EX-PARTE QUA THE ASSESSEE. FURTHER, DURING THE APPELLATE PROCEEDINGS, IT IS NO TED THAT SHRI ASHOK KUMAR KANODIA CA HAS APPEARED BEFORE THE LD CIT(A) AND HAS FILED WRITTEN SUBMISSIONS AND THE MATTER WAS ALSO DISCUSS ED WITH HIM. THEREFORE, THE PLEA OF THE ASSESSEE CAN BE ACCEPTED TO THE EXTENT OF ASSESSMENT PROCEEDINGS AND NOT BEFORE THE LD CIT(A) AS SHE WAS DULY ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 4 REPRESENTED BEFORE THE LD CIT(A) THROUGH HER CHARTE RED ACCOUNTANT. FURTHER, THE ASSESSEE HAS CONTENDED THAT SHE BECAME AWARE OF THE ORDER OF THE LD CIT(A) ONLY WHEN THE DEPARTMENT DEC IDED TO PROCEED AGAINST HER IN TERMS OF PENALTY PROCEEDINGS. THAT IS, SHE WAS NOT AWARE OF THE ORDER OF THE LD CIT(A) TILL THEN. IT IS OBSERVED THAT THE ADDRESS FOR COMMUNICATION AS GIVEN IN FORM 35 AND T HE ASSESSEES ADDRESS ARE THE SAME WHICH IS 107, DWARKAPURI RAMNA GARIYA, JAGATPURA. IT IS THEREFORE NOT THE CASE OF THE ASS ESSEE THAT THE SAME IS NOT HER ADDRESS OR SHE HAS SHIFTED TO ANOTHER RESID ENCE. FURTHER, IF WE LOOK AT THE AFFIDAVIT, THE CONTENTION SO TAKEN IS N OT SUPPORTED BY THE AFFIDAVIT. IN HER AFFIDAVIT, SHE HAS ADMITTED THAT THE ORDER OF THE LD CIT(A) WAS SERVED ON HER ON 30.03.2016. THEREFORE, NON-RECEIPT OF THE ORDER OF THE LD CIT(A) IS NOT IN DISPUTE AND THUS, THE SAME CANNOT BE A GROUND FOR CONDONATION OF DELAY WHICH WAS FILED WIT H A DELAY OF 334 DAYS. THE OTHER REASON STATED IN HER AFFIDAVIT THA T DUE TO LACK OF KNOWLEDGE OF TAX LAWS, IT HAS RESULTED IN DELAY IN FILING THE APPEAL AGAIN CANNOT BE ACCEPTED. FIRSTLY, IGNORANCE OF TAX LAWS CANNOT BE ACCEPTED AS AN EXCUSE FOR NON-FILING OF AN APPEAL. SECONDLY , BY ASSESSEES OWN ADMISSION, SHE HAS CHANGED HER CHARTERED ACCOUNTANT AND HAS SOUGHT THE SERVICES OF AN ADVOCATE TO HELP HER WITH THE TA X MATTERS. THEREFORE, WHEN SHE IS ASSISTED BY AN ADVOCATE, AGAIN TAKING A PLEA OF IGNORANCE OF TAX LAWS CANNOT BE ACCEPTED. BESIDES THE AFORESA ID CONTENTIONS, THERE IS NOTHING FURTHER EXPLANATION WHICH HAS BEEN SUBMITTED IN SUPPORT OF DEMONSTRATING REASONABLE CAUSE ON PART O F THE ASSESSEE TO EXPLAIN THE INORDINATE DELAY OF 334 DAYS OF FILING THE SUBJECT APPEAL FROM DATE OF RECEIPT OF THE ORDER OF THE LD CIT(A). ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 5 5. HERE, WE REFER TO THE DECISION OF THE HON'BLE SU PREME COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PA TIL VS SHANTARAM BABURAO PATIL & ORS (2002) 253 ITR 798 WHERE IT WAS HELD THAT WHILE EXERCISING DISCRETION, DISTINCTION SHOULD BE MADE B ETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS, WHICH MAY DESERVE A LIBERAL APPROACH. THE EXERCISE OF DISCRETION, THEIR LORDSHIPS OBSERVED, WOULD DEPEND ON THE FACTS OF EA CH CASE AND NO HARD OR FAST RULE CAN BE LAID DOWN IN THIS REGARD. IN THE SAID CASE, THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL WAS 7 DAYS. IN THE CASE OF GANGA SAHAI RAM SWARUP VS ITAT (2004) 2 71 ITR 512 (ALL), THE DELAY WAS OF 12 DAYS IN FILING THE APPEAL AND I T WAS HELD THEREIN THAT A LIBERAL VIEW OUGHT TO BE TAKEN, AS THERE WAS A DE LAY OF ONLY A VERY SHORT PERIOD. EVEN IN THE DECISION ON THE ISSUE OF CONDONATION IN CASE OF COLLECTOR, LAND ACQUISITION VS MST KATIJI 1987 AIR 1353, 1987 SCR (2) 387 WHERE THE HON'BLE SUPREME COURT LAID DOWN THAT COURTS SHOULD TAKE A LIBERAL AND PRACTICAL APPROACH IN EXERCISING ITS DISCRETIONARY POWERS OF CONDONATION OF DELAY, THE DELAY WAS OF 4 DAYS ONLY. 6. THE ASSESSEE IN HER AVERMENTS HAS NOT MADE OUT A NY CASE THAT THERE WAS A REASONABLE CAUSE WHICH BEING BEYOND THE CONTROL OF THE ASSESSEE, PREVENTED HER FROM FILING THE APPEAL IN T IME BEFORE THE TRIBUNAL. THE DELAY CANNOT BE CONDONED MERELY BECAU SE THE ASSESSEE'S CASE CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENC E. FOR THE EXERCISE OF DISCRETION IN CONDONING THE DELAY, IT MUST BE ES TABLISHED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE ON HER PART. SUFFICIENT CAUSE AS CONTEMP LATED IN THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYO ND THE CONTROL OF THE ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 6 ASSESSEE. IN THE FACTUAL MATRIX OF THE PRESENT CASE , IN OUR VIEW, IT IS CLEARLY ESTABLISHED THAT THE DELAY WAS DUE TO THE N EGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE, WHICH COULD H AVE BEEN AVOIDED BY THE ASSESSEE IF SHE HAD EXERCISED DUE CARE AND ATTE NTION. THEREFORE IN OUR OPINION, IN THE FACTUAL MATRIX OF THIS CASE, TH ERE EXISTS NO SUFFICIENT AND REASONABLE CAUSE FOR THE INORDINATE DELAY OF 33 4 DAYS IN FILING THE SUBJECT APPEAL. IN COMING TO THIS FINDING, WE DRAW SUPPORT FROM THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF MST KATIJI (SUPRA), VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL (SUPRA), AND OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF GANGA S AHAI RAM SWAROOP (SUPRA). THE DECISION IN CASE OF M/S HOSANNA MINIS TRIES CITED BY THE ASSESSEE HAS BEEN DULY CONSIDERED AND WE FIND THAT THE FACTUAL MATRIX DIFFERENT THEREIN AND IT WAS A CASE WHERE THE ASSES SEE SOUGHT THE ADVICE OF A PROFESSIONAL AND ON WHOSE ADVICE THE AS SESSEE CAME TO KNOW THAT THE ORDER OF REJECTION MADE BY THE LD CIT UNDER SECTION 12AA WAS APPELLABLE. IN THE PRESENT CASE, THE ASSESSEE WAS DULY SUPPORTED BY A CHARTERED ACCOUNTANT DURING THE APPELLATE PROC EEDINGS BEFORE THE LD CIT(A) AND THEN BY AN ADVOCATE BEFORE US AND SHE WAS FULLY AWARE OF THE FILING REQUIREMENTS OF THE PRESENT APPEAL. IN T HIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT, IN THE CASE IN HAND, THE C AUSE OF SUBSTANTIAL JUSTICE WOULD NOT BE SERVED BY CONDONING THE INORDI NATE DELAY OF 334 DAYS IN FILING THE APPEAL FOR WHICH NO COGENT REASO NS HAVE BEEN GIVEN. WE ACCORDINGLY REJECT THE PETITION FOR CONDONATION OF DELAY. CONSEQUENTLY, THE ASSESSEE APPEAL IS NOT ADMITTED F OR ADJUDICATION ON MERITS AND IS DISMISSED IN LIMINE. ITA NO. 315/JP/2017 SMT. MANJU RAJAWAT VS. ITO 7 ORDER PRONOUNCED IN THE OPEN COURT ON 25/09/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25/09/2018. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. MANJU RAJAWAT, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-6(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 315/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR