P.K.Vasan, Pathanamthitta V. ITO, Thiruvalla

ITA 317/COCH/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68931 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 27-08-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 11-05-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: NIVEDITA A KAMATH
• Keywords: Period of limitation; Time period of passing order; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 317/COCH/2010 ASSESSMENT YEAR : 2000-01 SHRI P.K.VASAVAN, PALANIKUNNATHIL, MEZHUVELI, PATHANAMTHITTA. [PAN:AFWPK 8797B] VS. THE INCOME TAX OFFICER, WARD-3,THIRUVALLA. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SMT. NIVEDITA A.KAMATH, ADV. REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 20/08/2013 DATE OF PRONOUNCEMENT 23/08/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 10/11/2005 PASSED BY LD. CIT(A)-IV, KOCHI AND IT RELATES TO TH E ASSESSMENT YEAR 2000-01. 2. THE APPEAL IS BARRED BY LIMITATION BY FOUR YEARS , FOUR MONTHS AND TWO DAYS. THE ASSESSEE HAS FILED A PETITION BEFORE THE BENCH REQUESTING THE BENCH TO CONDONE THE DELAY IN FILING THE APPEAL. 3. WE HAVE HEARD THE PARTIES ON THIS PRELIMINARY IS SUE. THE LD A.R REITERATED THE FACTS NARRATED IN THE AFFIDAVIT FILE D BY THE ASSESSEE, WHICH READS AS UNDER: I.T.A. NO. 317/COCH/2010 2 AFFIDAVIT OF MR. P.K.VASAVAN, S/O P.K. NARAYANAN, AGED 59, NOW UNEMPLOYED, RESIDING AT PALANIKUNNATHIL, MEZHUVELI, PATHANAMTHITTA. THAT I THE ABOVE NAMED DEPONENT, AM WELL CONVERSANT WITH THE FACTS DEPOSED TO BELOW. 1. THAT THE APPEAL FILED BY ME THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, KOCHI WAS DISPOSED OF BY T HE ORDER DATED 10-11- 2005 PASSED BY THE COMMISSIONER (APPEALS). 2. THAT THE TIME FOR FILING OF THE APPEAL BEFORE T HE TRIBUNAL WAS TO EXPIRE ON 10-1-2006. 3. THAT I WAS CONVICTED AND SENTENCED TO UNDERGO IMPRISONMENT BY THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA VIDE HIS JUDGMENT DATED 31-03- 2005 IN CRIMINAL CASES S.T. 539/2003 AND S.T. 392/2 003 U/S. 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 FOLLOWING DISHONOU R OF CHEQUES ISSUED BY ME TO MY CREDITORS IN REPAYMENT OF MONEY BORROWED O N BEHALF OF MY BROTHER P.K. RAJAN FOR THE CONSTRUCTION OF HIS SHOP PING COMPLEX. FOLLOWING MY CONVICTION AND SENTENCING, I WAS MENTALLY VERY U PSET AND WAS ALSO UNDER MEDICAL TREATMENT AND HENCE I WAS NOT IN A FI T STATE OF MIND TO CONTACT A COUNSEL OR TO GIVE INSTRUCTIONS TO FILE T HE APPEAL IN TIME. I WAS DETAINED IN JAIL FROM 24-11-2006 TO, 8-4-2008. I AM STILL UNDER TREATMENT AND FINANCIALLY BANKRUPT AND DESPITE MY ILL-HEALTH I COULD SOMEHOW MANAGE TO RAISE NECESSARY FUNDS FOR THE PURPOSE OF FILING THE APPEAL ONLY NOW. HENCE THE DELAY OF 4 YEARS AND 4 MONTHS AND 2 DAYS BEGINNING FROM 10-1- 2006 TO 10-5-2010 IN FILING THE APPEAL WHICH THE HO NBLE TRIBUNAL MAY BE PLEASED TO CONDONE. 4. IT IS AVERRED THAT THE ASSESSEE WAS CONVICTED ON 31.3.2005 AND HE WAS IN PRISON FROM 24.11.2006 TO 08.4.2008. WE NOTICE THA T THE LD CIT(A) HAS CONDUCTED HEARING ON 10-11-2005, I.E., AFTER THE DA TE CONVICTION. BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE HAS ENGAGED THE S ERVICES OF A CHARTERED ACCOUNTANT, WHICH PROVES THAT THE ASSESSEE WAS SEEK ING ADVICE FROM A PROFESSIONAL. 5. ACCORDING TO THE AVERMENT MADE IN THE AFFIDA VIT, THE ASSESSEE SHOULD HAVE PREFERRED APPEAL BEFORE TRIBUNAL BY 10-01-2006. BU T THE ASSESSEE WAS IN PRISON ONLY FROM 24.11.2006 TO 08-04-2008, I.E., MUCH LATE R TO THE LIMITATION PERIOD. I.T.A. NO. 317/COCH/2010 3 HOWEVER, IT IS SEEN THAT THAT ASSESSEE HAS NOT GIVE N ANY VALID REASON FOR NOT FILING APPEAL BY 10.01.2006 AND ALSO FOR THE DELAY THAT OCCURRED DURING THE PERIOD FROM 10.01.2006 TO 23.11.2006, I.E., THE PER IOD BEFORE HIS DETENTION. THE PRESENT APPEAL HAS BEEN FILED ONLY ON 11.05.2010. THE ASSESSEE HAS FAILED TO GIVE ANY REASON FOR THE DELAY THAT OCCURRED DURING THE PERIOD FROM 09.04.2008 TO 11.5.2010, I.E., THE PERIOD AFTER HIS DETENTION. 6. AT THIS JUNCTURE, WE FEEL IT APPROPRIATE TO R EFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF CONDONATION OF DELAY . THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. METAL DISTRIBUTOR S LTD (1988) 172 ITR 356 HAS HELD AS UNDER:- THAT IN THE ABSENCE OF PROP0ER EXPLANATION FOR THE DELAY IN PRESENTING FOR LEAVE TO APPEAL TO THE HONBLE SUPREME COURT, THE D ELAY COULD NOT BE CONDONED. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF STA TE OF RAJASTHAN VS. CHAUDHURY CONSTRUCTION AIR 1988 RAJ. 123 HAS HELD A S UNDER: THAT IN THE ABSENCE OF MATERIAL PARTICULARS AS TO WHY DELAY HAD BEEN CAUSED, THE DELAY COULD NOT BE CONDONED BY MERELY A CCEPTING THE EXPLANATION THAT THE DELAY OCCURRED IN THE GOVERNME NT OFFICE. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SOOR AJAMULL NAGARMAL (SUPRA) HAS HELD THAT:- THE CAUSE FOR DELAY IN MAKING THE APPLICATION WHIC H BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFI CIENT CAUSE WITHIN THE MEANING OF SECTION 5 OF LIMITATION ACT. WHERE NO N EGLIGENCE NOR INACTION NOR WANT OF BONA FIDES CAN BE IMPUTED TO THE APPLIC ANT, A LIBERAL CONSTRUCTION OF THE SECTION HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. THE APPLICANT HAS TO SHOW SUFFICIENT CAUSE FOR NOT FILING THE APPLICATION ON THE LAST DAY OF THE LIMITATION A ND MUST EXPLAIN THE DELAY MADE THEREAFTER DAY-BY-DAY TILL THE ACTUA L DATE OF FILING OF THE APPLICATION. IN ONE ANOTHER CASE OF ASHUTOSH BHADRA VS. JATINDER MOHAN SEAL AIR 1954 CAL.238, HONBLE CALCUTTA HIGH COURT HAS HELD AS UN DER:- I.T.A. NO. 317/COCH/2010 4 THE EXISTENCE OF SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR THE EXERCISE OF DISCRETION UNDER SECTION 5 OF THE INDIA N LIMITATION ACT. SUFFICIENT CAUSE MUST MEAN A CAUSE BEYOND THE CON TROL OF THE PARTY INVOKING THE AID OF THE SECTION. A CAUSE FOR DELAY WHICH THE PARTY COULD HAVE AVOIDED BY THE EXERCISE OF THE CARE AND ATTENT ION CANNOT BE A SUFFICIENT CAUSE. IN OTHER WORDS, THE COURT MUST B E ABLE TO SAY, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE T HAT THE DELAY WAS REASONABLE. A CAUSE ARISING FROM THE NEGLIGENCE OF THE PARTY CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING O F SECTION 5 . 7. VIEWED FROM THE BACK GROUND OF THE JUDICIAL PRONOUNCEMENTS, IN OUR VIEW, THE ASSESSEE HAS FAILED TO EXPLAIN DELAY TO THE SAT ISFACTION OF THE BENCH FOR THE ENTIRE PERIOD OF DELAY. ACCORDINGLY, WE DISMISS TH E APPEAL IN LIMINE, AS UNADMITTED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 23-08-20 13. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 23RD AUGUST, 2013 GJ COPY TO: 1. SHRI P.K.VASAVAN, PALANIKUNNATHIL, MEZHUVELI, PA THANAMTHITTA. 2. THE INCOME TAX OFFICER, WARD-3, THIRUVALLA. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. . D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN