THE DCIT CC-2, MUMBAI V. M/S. WINEVER INVESTMENT P. LTD, Mumbai

ITA 3336/MUM/2008

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3554 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 15-12-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 12-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Bonafide belief; Additional evidence; Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER / I .T A NO.3336/MUM/2008 ( / ASSESSMENT YEAR : 2003 - 04 THE DCIT, CENTRAL CIRCLE - 2, OLD C.G.O. BLDG., M.K. ROAD, MUMBAI - 400 020 / VS. M/S. WINEVER INVESTMENT PVT. LTD., 2 - C, COURT CHAMBERS, 35, NEW MARINE LINES, MUMBAI - 400 020 / I .TA NO. 82 5 5 /MUM/20 1 0 ( / ASSESSMENT YEAR: 2003 - 04 M/S. WINEVER INVESTMENT PVT. LTD., 2 - C, COURT CHAMBERS, 35, NEW MARINE LINES, MUMBAI - 400 020 / VS. THE DCIT, CENTRAL CIRCLE - 2, OLD C.G.O. BLDG., M.K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACW 5254F ( / APPELLANT ) .. ( / RESPONDENT ) / DEPARTMENT BY: SHRI ASGHAR ZAIN, VP / ASSESEE BY: SHRI ASHOK PATIL / DATE OF HEARING : 09 . 0 2 . 201 6 / DATE OF PRONOUNCEMENT : 02 . 0 3 .201 6 / O R D E R PER C.N. PRASAD, JM : TH ESE ARE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER S OF THE LD. CIT(A) - 1 , MUMBAI PERTAINING TO ASSESSMENT YEAR 200 3 - 0 4 . AS BOTH THESE APPEALS WERE HEARD ITA NO S . 8255/M/10 & 3336/M/2008 2 TOGETHER, THEY ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THERE IS A DELAY OF 1033 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE FILED PETITION FOR CONDONATION STATING AS UNDER: THE ABOVE CAPTIONED APPLICANT (PRESENTLY KNOWN AS WINEVER ENERGY PRIVATE LIMITED) HAS FILED AN APPEAL AGAINST THE OR DER DATED 10/8/2007 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - CENTRAL I, MUMBAI. THE SAID ORDER WAS PASSED EX - PARTE AS THERE WAS SOME MISCOMMUNICATION BETWEEN THE APPLICANT AND ITS CHARTERED ACCOUNTANT SHRI DHARMESH SHAH AND ALSO WITH SHRI ANAND JAIN , CHARTERED ACCOUNTANT OF M/S. LUNKAD & JAIN, CHARTERED ACCOUNTANTS. THE APPEAL AGAINST THE ABOVE ORDER WAS FILED ON 29/11/2010 AND THERE IS A CONSIDERABLE DELAY OF 1,033 DAYS IN FILING THE SAID APPEAL, IT IS PRAYED THAT THE DELAY MAY BE CONDONED FOR THE R EASON THAT THE APPLICANT WAS UNDER THE IMPRESSION THAT THE CHARTERED ACCOUNTANT WAS GOING TO DO THE NEEDFUL TO FILE THE APPEAL AGAINST THE ORDER DATED 10/8/2007 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), CIRCLE I. AND VIS - A - VIS THE CHARTERED ACCOUNTANT H AD INSTRUCTED AND WAS UNDER THE IMPRESSION THAT THE APPLICANT HAD DONE THE NEEDFUL AND HAD FILED AN APPEAL AGAINST THE CIT(A)'S ORDER. THEREFORE, IN SUBSTANCE, THE APPEAL HAD REMAINED TO BE FILED AGAINST THE CIT(A)'S ORDER. THIS FOLLY CAME TO LIGHT ONLY WHEN THE PENALTY APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF THE CIT(A) IN THE PENALTY PROCEEDINGS ON THE QUERY RAISED BY MR. ASHOK J. PATIL, ADVOCATE FOR THE APPLICANT, SOMEWHERE IN THE THIRD WEEK OF JULY, 2010, IN THE PENALTY APPEAL BEFORE THE HO NBLE TRIBUNAL 'AS TO WHAT HAD HAPPENED IN T HE QUANTUM APPEAL'. IT IS ONLY ON THIS QUERY THAT THE APPLICANT TRIED TO FIND/TRACE T HE PAPERS OF THE APPEAL PERTAINING TO THE QUANTUM AND THE SAME WERE NOT THERE AS THE APPEAL HAD NOT BEEN FILED AT ALL. THE REASO N FOR THE NON FILING OF THE APPEAL IN TIME WAS DUE TO SOME MISUNDERSTANDING BETWEEN THE APPLICANT AND ITS CHARTERED ACCOUNTANT AND ALSO THERE WAS A ITA NO S . 8255/M/10 & 3336/M/2008 3 CHANGE IN THE OFFICE ADDRESS FROM NEW MARINE LINES TO FORT. THEREFORE, IT TOOK SUBSTANTIAL TIME TO GO THROUG H ALL THE PAPERS AND FILES OF THE COMPANY, AND IMMEDIATE STEPS WERE TAKEN TO FILE THE APPEAL. WE HAVE ENCLOSED ALONG WITH THIS APPLICATION AN AFFIDAVIT OF THE DIRECTOR TO SUPPORT THE CASE AS THERE WAS A GENUINE AND BONA FIDE LAPSE ON THE PART OF THE APPL ICANT TO FILE THE APPEAL IN TIME BEFORE THE HONBLE INCOME - TAX APPELLATE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) IN THE QUANTUM CASE. IT IS, THEREFORE, PRAYED THAT THE DELAY MAY BE CONDONED AND THE APPEAL HEARD ON MERITS . THE ABOVE PETITION WAS FILED ALONGWITH THE AFFIDAVIT OF THE MANAGING DIRECTOR AFFIRMING THE ABOVE FACTS. 3. IT IS THE SUBMISSION OF THE LD. COUNSEL THAT THE ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT THE CHARTERED ACCOUNTANT WAS GOING TO DO THE NEE DFUL TO FILE THE APPEAL AGAINST THE ORDER DATED 10.8.2007 OF THE COMMISSIONER OF INCOME TAX (APPEAL S ) . IN OTHER WORDS HE SUBMITS THAT ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT THE APPEAL HAS BEEN FILED BY THE CHARTERED ACCOUNTANT BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO PAGE - 9 OF THE LD. CIT(A) S ORDER DATED 31.3.2008 IN THE PENALTY PROCEEDINGS AT PARA - 5, THE LD. COUNSEL SUBMITTED THAT IN FACT AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT THE APPELLANT HAD FILED APPEAL BEFORE THE I.T.A.T AGAINST THE ORDER OF THE LD. CIT(A) AND THE SAME IS PENDING FOR ADJUDICATION. THEREFORE, HE SUBMITS THAT ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) IN QUANTUM PROCEEDINGS. ITA NO S . 8255/M/10 & 3336/M/2008 4 3.1. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO AFFIDAVIT SUBMITS THAT NON - FIL ING OF APPEAL CAME TO LIGHT ONLY WHEN THE PENALTY APPEAL FILED BY THE DEPARTMENT BEFORE THE TRIBUNAL AND IN THE PROCEEDINGS IN THE TRIBUNAL ON QUERY RAISED BY THE LD. COUNSEL WHO APPEARED ON BEHALF FOR THE ASSESSEE AS TO WHAT HAD HAPPENED TO THE QUANTUM AP PEAL. THIS HAS HAPPENED IN SOMEWHERE 3 RD WEEK OF JULY, 2010, ONLY ON THIS QUERY, THE ASSESSEE TRIED TO TRACE THE PAPERS OF APPEAL PERTAINED TO THE QUANTUM AND CAME TO KNOW THAT THE APPEAL HAS NOT BEEN FILED AT ALL. THEREFORE, THE LD. COUNSEL FOR THE ASS ESSEE SUBMITS THAT THE APPEAL COULD NOT BE FILED ONLY ON MISUNDERSTANDING BETWEEN THE CHARTERED ACCOUNTANT AND THE COUNSEL AND SINCE THE DELAY IN FILING THE APPEAL IS BONAFIDE, THE DELAY MAY BE CONDONED. 3.2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING T O PAGE - 10 OF THE COMPILATION OF THE CASE LAWS WHICH IS THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF IMPROVEMENT TRUST, LUDHIANA VS UJAGAR SINGH & ORS SUBMITS THAT THE HONBLE SUPREME COURT HELD THAT WHILE CONSIDERING THE APPLICATION FOR CONDO NATION OF DELAY NO STRAIGHT JACKET FORMULA IS PRESCRIBED TO COME TO THE CONCLUSION THAT IF SUFFICIENT AND GOOD GROUNDS HAVE BEEN MADE OUT OR NOT. EACH CASE HAS TO BE WEIGHED FROM ITS FACTS AND THE CIRCUMSTANCES IN WHICH THE PARTY ACTS AND BEHAVES. FROM T HE CONDUCT BEHAVIOR AND ATTITUDE OF THE APPELLANT IT CANNOT BE SAID THAT IT HAD BEEN ABSOLUTELY CALLOUS AND NEGLIGENT IN PROSECUTING THE MATTER. FURTHER REFERRING TO PAGE - 11, HE SUBMITS THAT IT IS THE OBSERVATION OF THE SUPREME COURT THAT JUSTICE CAN BE D ONE ONLY THE MATTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPOSE IT OFF ON SUCH TECHNICALITIES AND THAT TOO AT THE THRESHOLD. ITA NO S . 8255/M/10 & 3336/M/2008 5 3.3. FURTHER PLACING RELIANCE ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS G AGAN TRADING CO. LTD., IN INCOME TAX APPEAL NO. 1434 OF 2010 AND ANOTHER DATED 18.4.2011 SUBMITS THAT THE HONBLE BOMBAY HIGH COURT CONDONED THE DELAY OF 1000 TO 1543 DAYS IN FILING THE APPEAL BY THE REVENUE BY IMPOSING COST. 4. THE LD. DEPARTMENTAL REP RESENTATIVE VEHEMENTLY OPPOSED FOR CONDONATION OF DELAY. THE LD. DR SUBMITS THAT THE ASSESSEE HAS NOT CO - OPERATED IN THEIR ASSESSMENT PROCEEDINGS. THERE IS NO REPRESENTATIVE BEFORE THE LD. CIT(A) AND IS TOTALLY NEGLIGENT THEREFORE HE SUBMITS THAT THE DEL AY MAY NOT BE CONDONED. 5. HEARD BOTH SIDES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES. ON GOING THROUGH THE AVERMENT S OF THE AFFIDAVIT AND THE SUBMISSIONS OF THE AR AND KEEPING IN VIEW THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE IF IMPROVEM ENT TRUST IN CIVIL APPEAL NO 2395 OF 2008 DATED 9.6.2010, WE FIND THAT IT IS A BONAFIDE BELIEF OF THE ASSESSEE THAT THE CHARTERED ACCOUNTANT HAS FILED THE APPEAL AGAINST THE QUANTUM APPEAL, THUS THERE IS A REASONABLE CAUSE IN FILING THE APPEAL WITH DELAY . THUS WE CONDONED THE DELAY AND ADMIT THE APPEAL FOR HEARING ON MERITS. WE FIND THAT THERE IS NO REPRESENTATION BEFORE THE LD. CIT(A) AND THE ASSESSEE FILED ADDITIONAL EVIDENCES BEFORE THE TRIBUNAL ALONGWITH PETITION FOR ADMISSION . WE ADMIT THE ADDITION AL EVIDENCES AND RESTORE THE MATTER TO THE FILE OF THE AO FOR ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . AS THE QUANTUM APPEAL IS RESTORED TO THE FILE OF THE AO, THE PENALTY APPEAL IS ALSO REST ORED TO THE AO. ITA NO S . 8255/M/10 & 3336/M/2008 6 6. IN THE RESULT, BOTH THE APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MARCH , 201 6 . SD/ - SD/ - ( RAJESH KUMAR ) ( C.N. PRASAD ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI ; DATED : 2 ND MARCH , 201 6 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI