Engineering Professional Co. Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 340/AHD/2009

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9777 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-12-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 02-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.340 / AHD/2009 (ASSESSMENT YEAR 2004-05) ENGINEERING PROFESSIONAL CO. P. LTD., BM-7, SHILA TOWER, SAMARTH PARK, SURAT. VS. DCIT, CIRCLE 1, SURAT PAN/GIR NO. : AABCC0313Q (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI M K PATEL, AR RESPONDENT BY: SHRI B L YADAV, DR O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) I, SURAT DATED 31.12.2007 FOR THE ASSESSMENT YEAR 2 004-05. 2. THE PRESENT APPEAL WAS FILED BY THE ASSESSEE ON 02.02.2009 AND IN THE ACKNOWLEDGEMENT-CUM-NOTICE ISSUED BY THE TRIBUNAL A T THE TIME OF FILING OF THE APPEAL AS PER CLAUSE 11 OF THE SAID ACKNOWLEDGE MENT CUM NOTICE, IT WAS SPECIFIED THAT APPEAL IS PRIMA FACIE TIME BARRED BY 329 DAYS AND THE ASSESSEE HAS NOT FILED ANY CONDONATION PETITION. AS PER THE SAME ACKNOWLEDGEMENT CUM NOTICE ISSUED BY THE TRIBUNAL, THE DATE OF HEAR ING WAS FIXED ON 01.04.2009. ON THAT DATE, HEARING WAS ADJOURNED ON THE REQUEST OF THE LD. A.R. OF THE ASSESSEE. ON THAT DATE ALSO OR PRIOR T O THIS, THERE WAS NO APPLICATION SUBMITTED BY THE ASSESSEE FOR CONDONATI ON OF DELAY IN FILING OF APPEAL. THE HEARING WAS AGAIN FIXED ON 16.05.2011. ON THIS DATE ALSO, THERE I.T.A.NO.340 /AHD/2009 2 WAS A REQUEST OF THE LD. A.R. SHRI M K PATEL THAT H EARING MAY BE ADJOURNED BECAUSE HE IS NOT ABLE TO APPEAR AND ARGUE ON THIS DATE DUE TO PERSONAL DIFFICULTIES. ON THIS DATE ALSO, THERE WAS NO REQU EST FOR CONDONATION OF DELAY. HEARING WAS AGAIN ADJOURNED TO 01.08.2011. ON 01. 08.2011, MR. M K PATEL LD. A.R. OF THE ASSESSEE APPEARED AND REQUESTED FOR ADJOURNMENT. AT THIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT THIS APPEAL OF THE ASSESSEE IS DELAYED BY 329 DAYS AND THIS DEFECT HAD BEEN SPECIF IED IN THE DEFECT NOTE AS PER CLAUSE 11 OF THE ACKNOWLEDGEMENT CUM NOTICE ISS UED TO THE ASSESSEE AT THE TIME OF FILING OF APPEAL ON 02.02.2009 ITSELF. ATTENTION WAS DRAWN TO CLAUSE (V) OF SUB-RULE (2) OF RULE 4A OF THE APPELL ATE TRIBUNAL RULES 1963 AS PER WHICH, THE REGISTRY OF THE TRIBUNAL IS REQUI RED TO CHECK WHETHER THE APPEAL OF THE ASSESSEE ARE BARRED BY LIMITATION AND IF SO, INTIMATE THE PARTY AND PLACE THE MATTER BEFORE THE BENCH FOR ORDERS. IT WAS THE SUBMISSION OF THE LD. A.R. THAT SOME TIME MAY BE ALLOWED AGAIN FO R DOING THE NEEDFUL IN THIS REGARD. 3. WE HAVE CONSIDERED THE FACTS OF THE PRESENT CASE AS NOTED ABOVE. WE FIND THAT IN THE APPEAL MEMO I.E. FORM 36, IN CLAUS E 9, IT HAS BEEN SPECIFIED THAT THE ORDER APPEALED AGAINST I.E. ORDER OF THE L D. CIT(A) DATED 31.12.2007, WAS COMMUNICATED TO THE ASSESSEE ON 10.01.2008 AND THE APPEAL WAS FILED BY THE ASSESSEE ON 02.02.2009 AS PER THE ACKNOWLEDGEME NT CUM NOTICE AVAILABLE ON RECORD. IN THE SAME, A DEFECT NOTE WAS DULY GIV EN TO THE ASSESSEE AS PER CLAUSE 11 OF THE SAID ACKNOWLEDGEMENT CUM NOTICE DA TED 02.02.2009 THAT APPEAL IS PRIMA FACIE TIME BARED BY 329 DAYS AND TH E ASSESSEE HAS NOT FILED ANY CONDONATION PETITION. ALMOST 2 YEARS HAVE PAS SED BY NOW AND THE ASSESSEE HAS NOT EVEN FILED ANY PETITION FOR CONDON ATION OF DELAY AND WHEN THIS FACT WAS BROUGHT TO THE NOTICE OF THE LD. A.R. OF THE ASSESSEE, INSTEAD OF FILING PETITION FOR CONDONATION OF DELAY, LD. A.R. SHOWN IGNORANCE ABOUT THIS FACT THAT THERE WAS ANY DELAY IN FILING OF APPEAL A ND EVEN AFTER DEFECT NOTICE, I.T.A.NO.340 /AHD/2009 3 NO PETITION HAS BEEN FILED FOR CONDONATION OF DELAY . HENCE, IT APPEARS THAT THE ASSESSEE HAS NEITHER TAKEN ANY ACTION FOR FILIN G PETITION FOR CONDONATION OF DELAY NOR HAS EVEN BRIEFED THE LD. A.R. OF THE A SSESSEE REGARDING THIS ASPECT. UNDER THESE FACTS, WE FEEL THAT IT IS NOT NECESSARY TO GIVE ANY FURTHER TIME TO THE ASSESSEE FOR FURNISHING REQUEST FOR CON DONATION OF DELAY AND FOR BRINGING MATERIAL BEFORE US IN THE FORM OF AFFIDAVI T OR OTHER RELEVANT MATERIAL TO MAKE OUT A CASE FOR GRANTING CONDONATION OF DELA Y. SINCE, THERE IS NO APPLICATION FOR CONDONATION OF DELAY IN FILING OF A PPEAL, THIS APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED AS UNADMITTED BE CAUSE OF THE DELAY IN FILING OF APPEAL FOR WHICH NEITHER ANY CONDONATION PETITIO N NOR ANY EXPLANATION HAS BEEN FILED BEFORE US AND EVEN IN ORAL SUBMISSION, L D. A.R. COULD NOT POINT OUT THE REASON FOR DELAY TO MAKE OUT A CASE FOR GRA NTING FURTHER TIME FOR FILING THE CONDONATION PETITION. WE, THEREFORE, DISMISS T HIS APPEAL OF THE ASSESSEE AS UNADMITTED BEING FILED LATE AFTER A DELAY OF 329 DAYS AND FOR WHICH NOT EVEN A CONDONATION PETITION WAS FILED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST 2011. SD./- SD./- (BHAVNESH SAINI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 05 TH AUG., 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE I.T.A.NO.340 /AHD/2009 4 1. DATE OF DICTATION 2/8/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3/8/11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4/8/11 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5/8/11 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 5/8/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5/8/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..