Dr.S.D.Prem Kumar, CHENNAI V. DCIT, CHENNAI

ITA 3385/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4324 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 22-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 19-12-2016
• Court: TRIBUNAL
• Department Lawyers: S MOHAMED MUSPAFA
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , ! ' ! # . $ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.3385/MDS./2016 / ASSESSMENT YEAR :2012-13 DR.S.D.PREM KUMAR , 17/8, RAMANUJAM STREET, T.NAGAR, CHENNAI 600 017. VS. DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. [PAN AMJPD 0942 P ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : NONE /RESPONDENT BY : MR.S.MOHAMED MUSPAFA, JCIT D.R / DATE OF HEARING : 22 - 05 - 2017 / DATE OF PRONOUNCEMENT : 02 - 06 - 2017 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2 DATED 3 0.03.2016 PERTAINING TO ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS FOR O UR ADJUDICATION. ITA NO.3385/ MDS./16 :- 2 -: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) IS UNFAIR, UNJUST AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. RESTRICTING EXEMPTION U/S54F: 2. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE FACT THAT THE PURPOSE OF THE SECTION IS TO GRANT TO RELIEF U/S. 54F/ INVESTMENT IN RESIDENTIAL PROPERTY AND TH AT THE REQUIREMENT UNDER 54F(4) TO DEPOSIT IN CAPITAL GAINS ACCOUNT SC HEME IS ONLY TO ENSURE THAT THE AMOUNT WAS SPENT ON CONSTRUCTION. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE FACT THAT THE RATIONALE GIVEN IN FIN ANCE ACT, 1987 FOR THE INTRODUCTION OF SECTION 54F(4) FOR THE INTRODUC TION OF CAPITAL GAINS ACCOUNT SCHEME. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE FACT THAT AS THE SALE OF ASSETS WAS FROM THE FAMILY NUCLEUS, THE REINVESTMENT IN THE NAME OF OTHER FAMI LY MEMBERS ALSO OUGHT HAVE BEEN CONSIDERED FOR THE PURPOSE OF DEDUC TION U/S. 54F. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE FACT THAT THE AMOUNT PAID TOWARDS CO NSTRUCTION OUGHT TO HAVE BEEN CONSIDERED FOR THE PURPOSE OF ALLOWING EXEMPTION U/S. 54F. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. WE TAKE UP THE CASE FOR ADJUDICATION AFTE R HEARING THE LD.D.R. 4. FURTHER, THERE WAS A DELAY OF 136 DAYS IN FILIN G THE APPEAL BEFORE THIS TRIBUNAL. THE ASSESSEE FILED AN AFFIDAV IT FOR CONDONATION OF DELAY STATING THAT THE APPELLATE ORDER DATED 30.03. 2016 IN ITA NO.258/CIT(A)-2/2014-15 WAS RECEIVED BY AUTHORISED REPRESENTATIVE OF ASSESSEE ONLY ON 06.06.2016. FURTHER, THE ASSES SEE STATED THAT AS HE SHIFTED HIS MEDICAL PRACTICE AS MEDICAL SUPERIN TENDENT FROM BRS ITA NO.3385/ MDS./16 :- 3 -: HOSPITAL TO VEENA CLINIC, HOME NO.43, WARD NO.22, C /O.MUTTAPSODY, CHEMALA GRAMMAM PANCHAYAT, VIDHYANAGAR, KASARAGOD, KERALA, WITH INTENTION TO PRACTICE ALONG WITH MY FATHER IN LAW, HE COULD NOT BE CONTACTED HIS LD.A.R DUE TO CHANGE IN CONTACT NUMBE R. ACCORDING TO HIM, DUE TO THIS REASON, THE ASSESSEE FAILED TO FIL E THE APPEAL IN TIME BEFORE US I.E. 04.08.2016 AND CAUSED DELAY OF 136 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. AS SEEN FROM THE PETI TION, THE REASONS ADVANCED BY THE ASSESSEE IN ITS CONDONATION PETITIO N ARE VERY VAGUE AND IT WAS TOO GENERAL. THE REASONS ADVANCED BY TH E ASSESSEE CANNOT BE CONSIDERED AS A REASONABLE ONE SO AS TO CONDONE THE DELAY OF 136 DAYS. THE APPROACH OF THE ASSESSEE HEREIN IS VERY CASUAL AND REQUIRES NO SYMPATHY FROM OUR END, SINCE HE HAS NOT SHOWN GO OD AND SUFFICIENT REASONS TO CONDONE THE DELAY. 5. ACCORDINGLY, WE PLACE RELIANCE ON THE ORDER OF THIRD MEMBER OF THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. REPORTED IN [2007] 104 ITD 149 (ITAT[CHEN]) WHEREIN HELD THAT:- THE LAW ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE DIC TUM: VIGILANTIBUS NON DOEMIENTIBUS JURA SUBVENIUNT. THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE APPELLANTS CASEIS HARD AND CALL S FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELI EF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT ITA NO.3385/ MDS./16 :- 4 -: GUILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CA USE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND ATTENTION, COULD HAVE BEEN AVOIDED, CANNOT BE A SUF FICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHE RE NO NEGLIGENCE OR INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MA DE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUS T COME WITH CLEAN HANDS. ACCORDINGLY, WE ARE INCLINED TO DISMISS THE APPEAL OF THE ASSESSEE AS UNADMITTED. ACCORDINGLY, WE ARE INCLINED TO DISMISS THE APPEAL OF ASSESSEE AS UNADMITTED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON 02 ND JUNE, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 02 ND JUNE, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF