VIKAS BHALCHANDRA PATHARKAR, MUMBAI V. ACIT 23(3), MUMBAI

ITA 3245/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83575 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-07-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 10-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARMINDER KAUR
• Assessee Lawyers: C N VAZE
• Keywords: Rectification of order; Bonafide belief; Condonation of delay
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ! ./I.T.A. NO.3245/MUM/2012 ( '#$ % / ASSESSMENT YEAR : 2002-03) SH RI VI KAS BHALCHANDRA PATHARKAR, B-44, CHEMBUR BLUE DIAMOND CHS LTD, CHEMBUR, MUMBAI-400071 / VS. ASSTT. COMMISSIONER OF INCOME TAX -23(3), MUMBAI. ( !&' / APPELLANT) .. ( ()&' / RESPONDENT) & ./ *+ ./PAN/GIR NO. : AGVPP9259M !&' , / APPELLANT BY : SHRI C N VAZE ()&' - , /RESPONDENT BY : S MT. PARMINDER KAUR . / - 01 / DATE OF HEARING : 31.7.2014 2 %$ - 01 /DATE OF PRONOUNCEMENT : 20.8.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 31- 08-2006 PASSED BY LD CIT(A)-XXIII, MUMBAI AND IT RE LATES TO THE ASSESSMENT YEAR 2002-03. 2. THE APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION BY 2009 DAYS. THE ASSESSEE HAS FILED A PETITION ALONG WITH AN AFFIDAV IT PRAYING FOR CONDONATION OF DELAY. THE ASSESSEE HAS FILED THE PRESENT APPEAL O N 10-05-2012 AND SINCE THAT DATE, IT IS GETTING ADJOURNED ON ONE REASON OR ANOT HER. WHEN THE APPEAL WAS I.T.A. NO.3245/MUM/2012 2 TAKEN UP FOR HEARING ON 27.02.2014, THE ASSESSEE WA S DIRECTED TO FURNISH A COPY OF DELAY CONDONATION PETITION TO THE LD D.R AND ACC ORDINGLY THE CASE WAS ADJOURNED TO 13.05.2014 IN ORDER TO GIVE TIME TO TH E REVENUE TO COUNTER THE AFFIDAVIT FILED BY THE ASSESSEE. SINCE NO ONE APPE ARED ON BEHALF OF THE ASSESSEE ON 13.05.2014, THE CASE WAS ADJOURNED TO 22.07.2014 . ON THAT OCCASION, THE BENCH NOTICED THAT THE LD D.R, APPEARING ON THAT DA TE, WAS IGNORANT OF THE DELAY AS WELL AS ABOUT THE DELAY CONDONATION PETITION FIL ED BY THE ASSESSEE. HENCE, THE BENCH PASSED THE FOLLOWING ORDER ON THAT DATE:- THIS APPEAL BY THE ASSESSEE IS BARRED BY LIMITATIO N BY 2009 DAYS. WHEN THE CASE WAS POSTED FOR HEARING ON 27.02.2014, LEAR NED DEPARTMENTAL REPRESENTATIVE WAS BLISSFULLY IGNORANT OF THE FACTU M OF DELAY AND THE PROCEDURE AS TO HOW HE HAS TO DEFEND ON BEHALF OF T HE REVENUE WITH REGARD TO THE CORRECTNESS OF THE CONTENTS OF THE AF FIDAVIT (FILED) BY THE ASSESSEE. DESPITE SPECIFIC DIRECTIONS, VIRTUALLY A MOUNTING TO EXPLAINING THE PROCEDURE, THEN LD D.R (WHOSE) NAME IS NOT KNOWN TO THE PRESENT D.R (IT WAS STATED THAT THERE IS NO SUCH PRACTICE OF ME NTIONING THE NAME OF DEPARTMENTAL REPRESENTATIVE AS OTHERWISE HE MAY BE NOTICED FOR NOT FOLLOWING THE PROCEDURE), EVEN AFTER TWO ADJOURNME NTS, PRESENT D.R SMT. PARMINDER WAS NOT FULLY PREPARED IN THIS REGARD. I T IS HER DUTY TO FILE 3 SETS OF THE REPORT STATED TO HAVE BEEN OBTAINED FRO M THE ASSESSING OFFICER WITH REGARD TO THE CORRECTNESS OF THE AFFI DAVIT FILED ON BEHALF OF THE ASSESSEE. WHERE AS LD D.R APPEARS TO HAVE OBTA INED A LETTER FROM THE ASSESSING OFFICER & THREE SETS OF THE REPORT WE RE NOT KEPT READY THOUGH SHE CLAIMED TO HAVE BEEN READY TO ARGUE THE MATTER. THIS REFLECTS THE CASUAL APPROACH OF LD D.R, WHICH NEEDS TO BE TA KEN NOTE OF BY THE CONCERNED COMMISSIONER IN CHARGE & CCIT-6 AND THERE FORE, LD D.R IS DIRECTED TO TAKE NOTE OF IT AND INFORM THE SAME TO THE CONCERNED SUPERIOR AUTHORITY. HOWEVER, IN THE INTEREST OF JUSTICE, WE ARE GIVING LD D.R A LAST CHANCE TO PREPARE THE CASE PROPERLY AND HENCE CASE IS LISTED FOR HEARING ON 31.7.14. THE REVENUE IS ADVISED NOT TO CHANGE D.R AGAIN SO A S TO CLAIM THAT THE PRESENT D.R IS NOT AWARE OF THE CONTENTS OF THE EA RLIER PROCEEDINGS. PARTIES INFORMED. AFTER PASSING THE ABOVE SAID ORDER, THE BENCH ADJOU RNED THE CASE TO 31.07.2014. I.T.A. NO.3245/MUM/2012 3 3. ON 31.07.2014, THE LD D.R FILED A PAPER BOOK PREPARED BY THE ASSESSING OFFICER CONTAINING THE DETAILS OF FACT OF THE CASE, COPIES OF ASSESSMENT ORDER, COPIES OF PROCEEDINGS BEFORE LD CIT(A) AND COPIES O F DOCUMENTS FILED BEFORE ITAT. THUS, IT IS SEEN THAT THE REVENUE DID NOT BO THER TO EXAMINE THE AFFIDAVIT FILED BY THE ASSESSEE AND OFFER THEIR SUBMISSIONS. DESPITE INFORMING THE LD D.R THAT THE AFFIDAVIT FILED BY THE ASSESSEE MAY HAVE T O BE COUNTERED WITH BY FILING A COUNTER AFFIDAVIT, NO ACTION APPEARS TO HAVE BEEN T AKEN. WHEN QUESTIONED, THE LD D.R INFORMED THAT SHE HAD A CONSULTATION WITH CI T (D.R), WHO HAD EXPRESSED THE VIEW THAT THE PAPER BOOK FURNISHED BY A GOVERNM ENT OFFICER IS SIMILAR TO THE AFFIDAVIT. HENCE THE LD D.R WAS ASKED TO FURNISH H ER EXPLANATION IN WRITING AND ACCORDINGLY THE LD D.R HAS GIVEN FOLLOWING IN HER L ETTER:- THIS CASE IS FIXED FOR HEARING TODAY, I.E., 31.07. 2014. ON LAST DAY OF HEARING, I.E., 22.7.2014, THE BENCH HAD DIRECTED ME TO APPEAR ON THE NEXT DATE OF HEARING AND TO FILE A PAPER BOOK IN REGARD TO THE CONDONATION OF DELAY IN FILING APPEAL BY ASSESSEE FOR MORE THAN 20 00 DAYS. I HAD DISCUSSED THIS CASE WITH CIT (DR), F BENCH, SHRI R. R PRASAD WHO ADVISED ME TO WRITE TO AO TO FILE A PAPER BOOK SINCE BEING A GOVERNMENT OFFICER, HIS PAPER BOOK IS SIMILAR TO THE AFFIDAVIT FILED BY THE ASSESSEE. IN THIS REGARD, THE CONCERNED A.O, SH. RAJEEV CHAREN MATHUR , ACIT, CIR. 23(2), MUMBAI FILED A DETAILED PAPER BOOK ON 30.07.2014 AN D ALSO SERVED A COPY ON THE ASSESSEES REPRESENTATIVE. THE LETTER FURNISHED BY LD D.R CLEARLY SHOWS THAT T HE DEPARTMENTAL REPRESENTATIVES ARE IGNORANT OF LEGAL PROCEDURES AN D THEY ARE ALSO NOT AWARE THAT THE BENCH HAS PASSED AN ORDER IN THIS MATTER. THIS AGAIN REVEALS CASUAL APPROACH ADOPTED BY THE REVENUE IN PURSUING THE APP EALS FILED BY THE ASSESSEE. 4. NORMALLY, IN THIS KIND OF SITUATION, IT IS POSSIBLE TO TAKE A VIEW THAT THE REVENUE DOES NOT HAVE TO SAY ANYTHING TO CONTRADICT THE DEPOSITION MADE BY THE ASSESSEE IN THE AFFIDAVIT. HOWEVER, SINCE THE ASSE SSING OFFICER HAS MADE SOME OBSERVATION IN THE PAPER BOOK UNDER THE TITLE FACT S OF THE CASE, WE PROCEED TO I.T.A. NO.3245/MUM/2012 4 EXAMINE THE REASONS FURNISHED BY THE ASSESSEE FOR T HE DELAY IN FILING THE IMPUGNED APPEAL. THE ASSESSEE HAS FILED AN AFFIDA VIT, WHEREIN THE ASSESSEE HAS DEPOSED AS UNDER:- 1. I WAS ASSESSED TO TAX WITH THE ACIT 23(3), M UMBAI FOR AY 2002-03. 2. THE COMMISSIONER OF INCOME TAX (APPEALS)-XXIII, MUMBAI HAD PASSED ORDER UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2002-03 DT. 31.08.2006. 3. THE APPEAL AGAINST THE SAID ORDERS WERE REQUIRE D TO BE FILED WITHIN THE SIXTY DAYS OF THE RECEIPT OF THE ORDER. 4. I HAD FILED RECTIFICATION APPLICATION U/S 154 W ITH THE OFFICE OF CIT(A)- XXIII, MUMBAI ON 27-01-2007 WHICH IS NOT YET PROCES SED. 5. I HAD NOT FILED AN APPEAL WITHIN THE STATUTORY TIME LIMIT OF SIXTY DAYS SINCE I WAS UNDER THE HONEST BELIEF THAT APPEAL WIT H ITAT CAN BE FILED ONLY AFTER THE RECTIFICATION ORDER U/S 154 IS PASSED. 6. HOWEVER, RECENTLY, I CAME TO KNOW THAT THE APPE AL CAN BE FILED SIMULTANEOUSLY. IN VIEW OF THIS, I HAVE OPTED FOR FILING APPEAL. IN THE COVERING LETTER ACCOMPANYING THE AFFIDAVIT, THE ASSESSEE HAS STATED AS UNDER:- FURTHER, MY TAX MATTERS WERE THEN HANDLED BY ANOTH ER CHARTERED ACCOUNTANT. UNFORTUNATELY, I WAS NOT ADVISED AT TH E APPROPRIATE TIME TO FILE AN APPEAL. THE PRESENT CASE CAME TO KNOW ABO UT IT ONLY A COUPLE OF WEEKS AGO. THUS, IN EFFECT, THE SUBMISSION OF THE ASSESSEE WAS THAT HE WAS WRONGLY ADVISED THAT HE CAN FILE APPEAL BEFORE ITAT AFTER THE DISPO SAL OF APPLICATION FILED BEFORE LD CIT(A) U/S 154 OF THE ACT. 5. THE ASSESSING OFFICER, IN HIS PAPER BOOK, HA S OFFERED FOLLOWING COMMENTS WITH REGARD TO THE AFFIDAVIT FILED BY THE ASSESSEE. FIRST OF ALL AS PER SECTION 253(3) OF THE I.T. ACT THE ASSESSEE IS REQUIRED TO FILE THE APPEAL U/S 253(1) WITHIN A PERIOD OF 60 DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS CO MMUNICATED TO THE ASSESSEE. IN THIS CASE THE ORDER OF APPEAL BY THE CIT(A) WAS PASSED ON I.T.A. NO.3245/MUM/2012 5 31.08.2006 WHEREAS ASSESSEE FILED THE APPEAL TO THE HONBLE ITAT ONLY ON 10.05.2012 AND THERE IS A DELAY OF 2009 DAYS. SECONDLY EVEN IF IT IS PRESUMED THAT THE ASSESSEE W AS UNDER BONAFIDE BELIEF THAT HE HAD FILED RECTIFICATION APPLICATION U/S 154 TO THE CIT(A) AGAINST THE ORDER PASSED AND APPEAL TO THE ITAT CAN BE FILED ONLY AFTER RECTIFICATION ORDER IS PASSED IS ALSO NOT FOUND TO BE ACCEPTABLE ON THE FACTS THAT THE TIME LIMIT (60 DAYS) FOR FILING APPEAL TO THE HONBLE ITAT WAS LAPSED BEFORE THE DATE OF FILING THE RECTIFICATION APPLICATION AS THE ASSESSEE HAD FILED THE RECTIFICATION APPLICATION U/S 154 ONL Y ON 29.01.2007 AGAINST THE ORDER OF APPEAL PASSED ON 31.08.2006. ON THAT OTHER HAND, THERE IS AN INORDINATE DELAY OF 793 DAYS IN FILING APPEAL TO THE ITAT EVEN AFTER THE DATE OF RECTIFICATION ORDER DATED 08.03.2010. FURTHER THE ASSESSEE HAD GIVEN ONE OF THE REASON FO R CONDONATION THAT THE APPLICATION U/S 154 IS NOT YET PROCESSED BY THE CIT (A) IS ALSO NOT ACCEPTABLE ON THE FACTS THAT THE ORDER OF RECTIFICA TION WAS PASSED BY THE CIT(A) ON 08.03.2010. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. WE HAVE ALREADY NOTICED THAT THE MAIN CONTENTION OF THE ASSESSEE WA S THAT HE WAS UNDER BONAFIDE BELIEF THAT THE APPEAL BEFORE ITAT CAN BE FILED AFTER THE DISPOSAL OF PETITION FILED BEFORE LD CIT(A) U/S 154 OF THE ACT. ON THE CONTRARY, THE REVENUE HAS POINTED OUT THAT (A) THE ASSESSEE HAS FILED THE RECTIFICATION APPL ICATION ONLY ON 29-01-2007 AND BY THAT POINT OF TIME, THE TIME LIMIT OF 60 DAY S PRESCRIBED FOR FILING APPEAL BEFORE ITAT HAD ELAPSED. (B) THE LD CIT(A) HAS DISPOSED OF THE RECTIFICATI ON PETITION U/S 154 OF THE ACT ON 08.3.2010, BUT THE ASSESSEE HAS FILED THE AP PEAL BEFORE THE ITAT ONLY ON 10.05.2012. THUS THERE WAS A DELAY OF 793 DAYS IN FILING APPEAL FROM THE DATE OF DISPOSAL OF RECTIFICATION PETITION BY LD CIT(A). 7. BEFORE PROCEEDING FURTHER, WE FEEL IT APPR OPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF CONDONATION OF DELAY. THE HONBLE I.T.A. NO.3245/MUM/2012 6 CALCUTTA HIGH COURT IN THE CASE OF CIT VS. METAL DI STRIBUTORS LTD (1988) 172 ITR 356 HAS HELD AS UNDER:- THAT IN THE ABSENCE OF PROPER 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:- 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 . 8. WE NOTICE THAT THE ASSESSEES EXPLANATION FO R THE DELAY HAS NOT BEEN SUBSTANTIATED BY HIS OWN ACTION, I.E., THERE WAS A DELAY OF ABOUT 793 DAYS FROM THE DATE OF DISPOSAL OF RECTIFICATION PETITION FILE D BY LD CIT(A). THOUGH THE ASSESSEE CLAIMS THAT HE HAS BEEN WRONGLY ADVISED BY HIS CHARTERED ACCOUNTANT, I.T.A. NO.3245/MUM/2012 7 NO MATERIAL WAS PLACED BEFORE US TO SUBSTANTIATE TH E SAID CLAIM. THE ASSESSEE HAS ALSO NOT OFFERED ANY EXPLANATION FOR THE DELAY OF 793 DAYS AFTER THE DISPOSAL OF RECTIFICATION APPLICATION BY LD CIT(A). WE HAVE ALREADY NOTICED THAT THE ASSESSEE HAS TO FURNISH THE REASONS FOR THE DELAY F OR NOT FILING THE APPLICATION ON THE LAST DAY OF THE LIMITATION AND MUST EXPLAIN THE DELAY MADE THEREAFTER DAY-BY- DAY TILL THE ACTUAL DATE OF FILING OF THE APPLICATI ON. IN THE INSTANT CASE, THE ASSESSEE, IN OUR VIEW, HAS FAILED TO SHOW SUFFICIEN T CAUSE TILL THE DATE OF ACTUAL DATE OF FILING OF THE APPLICATION. UNDER THESE CIR CUMSTANCES, WE ARE OF THE VIEW THAT THE PETITION FILED BY THE ASSESSEE IS LIABLE T O BE REJECTED AND ACCORDINGLY WE REFUSE TO CONDONE THE DELAY. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED IN LIMINE. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20TH AUG, 2014 . 2 %$ . 3 4 5 6 20TH AUG, 2014 - 7/ 8 SD SD ( . / D. MANMOHAN ) ( . . , / B.R. BASKARAN ) / VICE- PRESIDENT / ACCOUNTANT MEMBER . / MUMBAI: 20TH AUG,2014. . ' . ./ SRL , SR. PS !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. !&' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. . :0 ( ! ) / THE CIT(A)- CONCERNED 4. . :0 / CIT CONCERNED 5. ;<7 ('0'=# , !1 !=#$ , . / / DR, ITAT, MUMBAI CONCERNED 6. 7 / / GUARD FILE. > . / BY ORDER, TRUE COPY * (ASSTT. REGISTRAR) !1 !=#$ , . / /ITAT, MUMBAI