C.Jegaveerapandian, CHENNAI V. ITO, Tuticorin

ITA 343/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86353 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-03-2015
• Assessment Year: 1995-1996
• Appeal Filed On: 13-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR NISCHAL
• Assessee Lawyers: DINKLE KOTHARI
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 133A; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , ! , ' #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A. NOS.343, 2904, 2905, 2906, 2907, 2908, 2909 AND 2910/MDS/2014 ( / ASSESSMENT YEARS :1995-96, 1996-97, 1997-98, 1998- 99, 1999-2000, 2000-2001, 2001-2002 AND 2002-2003) SHRI. C. JEGAVEERAPANDIAN C/O. SHRI. T. SELVARAJ & CO., CHARTERED ACCOUNTANTS, NO.32, DEWAN RAMA ROAD, PURUSAWAKKAM, CHENNAI 600 084. [PAN:AFAPJ 1823L] ( %& /APPELLANT) VS THE INCOME TAX OFFICER, WARD I (2), TUTICORIN. ( !'%& /RESPONDENT) / APPELLANT BY : MS. DINKLE KOTHARI, C.A., / RESPONDENT BY : DR. NISCHAL, JCIT. /DATE OF HEARING : 18.03.2015 ! /DATE OF PRONOUNCEMENT : 18.03.2015. ( / O R D E R PER BENCH: ALL THESE APPEALS BY ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-I, M ADURAI FOR THE I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 2 -: ABOVE ASSESSMENT YEARS. THE FIRST ISSUE IN THESE AP PEALS IS WITH REGARD TO CONDONATION OF DELAY IN FILING OF THESE APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 2. THE FACTS OF THE CASE AS NARRATED IN ASSESSMENT YEA R 1995-96 IS CONSIDERED FOR THE PURPOSE OF ADJUDICATION OF THESE APPEALS AS THE MATTER IS SIMILAR IN ALL THESE APPEALS. THE ASSESSE E IS AN INDIVIDUAL. HE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 1995-96 ADMITTING A TAXABLE INCOME OF F87,000/- ON 28.08.1997. A SURVE Y UNDER SECTION 133A WAS CONDUCTED IN THE BUSINESS PREMISES OF M/S J.V.P. ASSOCIATES AND OTHER SISTER CONCERNS ON 11.07.2001. DURING TH E COURSE OF SURVEY SOME DOCUMENTS EVIDENCING INDIVIDUAL BUSINESS TRANS ACTIONS OF ASSESSEE WERE FOUND. THE ASSESSMENT WAS THEREFORE REOPENED U/S 147 OF THE ACT. DURING THE COURSE OF ASSESSMENT, A SSESSEE HAS NOT PRODUCED ANY BOOKS OF ACCOUNT OR ANY OTHER MATERIAL ABOUT THE SOURCE OF INCOME. THE ASSESSING OFFICER THEREFORE COMPLET ED THE ASSESSMENT ON 25.3.2004 BY MAKING THE FOLLOWING ADDITIONS. (1) INVESTMENT IN JEEP : F 30,000/- (2) SUM PAID FOR JCB UM OF : F 2,12,898/- (3) INITIAL PAYMENT FROM SAKTHI FINANCE : F 10,00,000/- I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 3 -: 2.1 AGGRIEVED BY THIS, ASSESSEE FILED APPEAL ON 2 1.09.2012 WITH THE FOLLOWING REMARKS:- (A) IMMEDIATELY AFTER THE SURVEY AT MY PREMISES CON DUCTED BY THE DEPUTY DIRECTOR OF INCOME-TAX (INVESTIGATION S), TIRUNELVELI ON 11.07.2001, I HAD GONE OUT OF MY FAM ILY AND BUSINESS AND HAD LED AN ISOLATED LIFE OUTSIDE DUE T O LOSS IN BUSINESS AND MY INABILITY TO CONTINUE THE BUSINESS. (B) AS I WAS NOT IN MY RESIDENCE, I HAVE NOT RECEIVED PERSONALLY ANY ASSESSMENT ORDERS AND NOTICES ISSUED BY THE ASSESSING OFFICER, BUT I CAME TO KNOW ON A LATER DA TE THAT THE ORDERS/NOTICES HAD BEEN RECEIVED BY MY SON AND WIFE. (C) DUE TO MY MENTAL DEPRESSION AND AGONY, I WAS LIVIN G AWAY FROM MY FAMILY FOR ALMOST 10 YEARS FROM THE DA TE OF SURVEY AND NOW ONLY CAME BACK TO LIVE WITH MY FAMIL Y. (D) AS I HAVE RECEIVED ARREARS NOTICES FROM THE TAX RECOVERY OFFICER, THOOTHUKUDI, I HAVE NO OTHER GO B UT TO FILE APPEALS BEFORE YOUR HONOUR. IN VIEW OF THE ABOVE, I HEREBY PRAY TO CONDONE TH E DELAY OF 8 YEARS FOR FILING THE APPEALS AND RENDER JUSTI CE . 3. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT THERE IS NO REASONABLE CAUSE FOR CONDONATION OF LONG DELA Y OF 8 YEARS AND HE DISMISSED ALL THESE APPEALS AS NON-ADMITTED. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 4 -: 4. THE ASSESSEE ALSO RAISED A GROUND WITH REGARD TO T HE MERITS OF THE ADDITIONS MADE BY THE ASSESSING OFFICER. IN TH ESE APPEALS THE LD. AUTHORISED REPRESENTATIVE FILED AN AFFIDAVIT BEFORE US AS FOLLOWS:- I, C. JEGAVEERAPANDIAN, S/O. CHELLAIAHNADAR AGED AB OUT 63 YEARS RESIDING NO.21, ABIRAMI NAGAR, MUTHIAHPURAM THOOTHU KUDI-628005 HEREBY SOLEMNLY AFFIRM AND STATE AS UNDER 1. I AM THE APPELLANT AND I AM COMPETENT TO SWEAR TO T HE AFFIDAVIT. I AM WELL ACQUAINTED WITH THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. I AM AN INDIVIDUAL DOING CONTRACT BUSINESS. A SURV EY WAS CONDUCTED ON 11/072001 U/S 133A ON MY BUSINESS PREM ISES JVP ASSOCIATES AND OTHER SISTER CONCERNS BY THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATIONS), TIRUNELVELI. 3. AFTER THE SURVEY I WAS INTO MENTAL DEPRESSION AND A GONY DUE TO LOSS IN HIS BUSINESS AND HIS INABILITY TO CONTINUE THE BUSINESS. 4. I HAVE GONE TO LEAD AN ISOLATED LIFE AWAY FROM HIS FAMILY AND BUSINESS FOR 10 YEARS. 5. I HAD NO KNOWLEDGE OF THE NOTICES AND ASSESSMENT OR DERS ISSUED BY THE ASSESSING OFFICER, WHICH WERE RECEIVED BY MY WIFE AND SON UNTIL I RETURNED TO LIVE WITH MY FAMILY. 6. I FILED AN APPEAL BEFORE THE CIT(A) ON 21 ST SEPTEMBER, 2012 ALONG WITH THE REQUEST TO CONDONE THE DELAY OF 8 YEARS F OR FILING THE APPEAL. 7. I HAVE FILED AN APPEAL BEFORE THE HON'BLE INCOME TA X APPELLATE TRIBUNAL FOR THE ASSESSMENT YEAR 1996-97 IN ITA NO. 2904/2014, AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) PASSED U/S 250 DT. 10/10/2014 DENYING THE CONDONATI ON OF DELAY FOR FILING OF APPEAL. I FURTHER AFFIRM THAT THE ABOVE STATED FACTS ARE TR UE AND CORRECT TO THE BEST OF MY KNOWLEDGE. I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 5 -: AND PRAYED FOR CONDONATION OF DELAY. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE IS NO SUFFICIENT CAUSE SHOWN BY THE ASSE SSEE FOR SUCH AN INORDINATE DELAY TO CONDONE THE SAME. ACCORDING TO THE LD. DEPARTMENTAL REPRESENTATIVE, THE ASSESSEES REQUEST FOR CONDONOTION OF DELAY WAS RIGHTLY TURNED DOWN BY THE LD.CIT(A) A ND ASSESSEE THEREFORE DID NOT DESERVE ANY INTERFERENCE ON THE PART OF THE TRIBUNAL. ACCORDING TO THE LD. DEPARTMENTAL REPRESENTATIVE, T HE ASSESSEE HAS NOT TAKEN DUE CARE AND ATTENTION FOR FILING THE APP EALS WITHIN THE STATUTORY TIME LIMIT AND THE ASSESSEE SHOWS UTTER D ISREGARD TO THE STATUTORY PROVISIONS OF THE ACT. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES. THE ISSUE BEFORE US IS WHETHER THE LD. CIT(A) IS JUSTIF IED IN REFUSING TO CONDONE THE DELAY AROUND 8 YEARS IN FILING THESE APPEALS AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER. THE ASSESSEE HEREINABOVE EXPLAINED THE DELAY BY WAY OF AFFIDAVIT FILED BEFO RE US AND ALSO BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) TO CONDON E THE DELAY OF 8 YEARS. THE ASSESSEE IS REQUIRED TO SHOW SUFFICIE NT CAUSE THAT THE ASSESSEE WAS EITHER BONAFIDE OR WAS PREVENTED BY SU FFICIENT CAUSE IS I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 6 -: MADE OUT OR NOT IS ALWAYS DEPEND UPON THE FACTS OF THE CASE AND HAS TO BE ESTABLISHED ON RECORD. THE ASSESSEE HAS TO ES TABLISH THAT THERE WAS NO NEGLIGENCE OR INACTION AND THE RIGHT GRANTED UNDER LAW TO CHALLENGE THE ORDER WAS NOT ABANDONED. IT CANNOT BE OVERLOOKED THAT ON EXPIRY OF THE PERIOD OF LIMITATION PRESCRIBED FO R SEEKING REMEDY, A CORRESPONDING RIGHT ACCRUES IN FAVOUR OF THE OTHER PARTY AND THE SAME SHOULD NOT BE LIGHTLY INTERFERED WITH. COMING TO TH E FACTS OF THE PRESENT CASE, THE ASSESSEE HAS TO EXPLAIN THE PERIO D OF DELAY BY BRINGING THE MATERIAL ON RECORD TO SUPPORT THE SUFF ICIENT CAUSE. THE ASSESSEE HAS TO SHOW THAT THE ASSESSEE IS VIGILANT DURING THIS PERIOD AND THE DELAY WAS BEYOND HIS CONTROL. CONDONING O F INORDINATE DELAY OF AROUND 8 YEARS SHOULD NOT FRUSTRATE THE LEGITI MATE EXPECTATION OF THE OTHER PARTY AS THE REVENUE WOULD HAVE COME TO T HE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER HAS BEEN AC CEPTED BY THE ASSESSEE AND REACHED FINALITY ESPECIALLY THE ASSESS EE SHOULD NOT TAKE UP THE REQUISITE LEGAL REMEDIES FOR SUCH AN INORDIN ATE LENGTH OF TIME OF 8 YEARS. 7. HOWEVER CONSIDERING THE FINDINGS OF THE COMMISSIONE R OF INCOME TAX (APPEALS), SINCE HE HAS NOT EXAMINED ACT UAL CIRCUMSTANCES WHICH HAS PREVENTED THE ASSESSEE TO F ILE APPEALS I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 7 -: AGAINST THE ORDERS OF THE ASSESSING OFFICER, WE ARE NOT IN A POSITION TO EXPRESS ANY OPINION ABOUT CONDONING OF THE DELAY. THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHO IS REQUIR ED TO EXAMINE WHETHER THE FACTS NARRATED BY THE ASSESSEE IN HIS P ETITION FOR CONDONATION OF DELAY AS TRUE OR NOT WHICH HE FAILED TO EXAMINE THE SAME. THUS, IN OUR OPINION HE IS REQUIRED TO EXAMIN E THE CONTENTS, DETAILS IN PETITION WHETHER IT IS TRUE OR NOT. IN OUR OPINION, RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF TH E PARTIES. THEY ARE MEANT TO SEE THAT THE PARTIES DO NOT RESORT TO DILA TORY TACTICS, BUT SEEK THEIR REMEDY FOR THE READDRESS THE LEGAL INJURY SO SUFFERED, THE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. THE L ENGTH OF DELAY IS NOT A MATERIAL TO CONDONE THE DELAY, THE CAUSE OF DELAY I S TO BE CONSIDERED TO CONDONE THE DELAY. IN THE CASE OF NAND KISHORE VS. STATE OF PUNJAB (1955) 6 SCC 614, THE SUPREME COURT HAD CONDONED TH E DELAY OF 31 YEARS SINCE THERE EXISTED SUFFICIENT CAUSE. 8. IN VIEW OF THIS, WE ARE INCLINED TO HOLD THAT THE C OMMISSIONER OF INCOME TAX (APPEALS) HAS TO HAVE NECESSARY ENQUIRY REGARDING AVERMENTS MADE BY THE ASSESSEE IN HIS AFFIDAVIT AND THEREAFTER DECIDE IN ACCORDANCE WITH LAW. I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 8 -: 9. IT IS NEEDLESS TO SAY THAT THE COMMISSIONER OF INCO ME TAX (APPEALS) SHALL GIVE ADEQUATE OPPORTUNITY OF HEARIN G TO THE ASSESSEE BEFORE DECIDING THE ISSUE. THE APPEALS OF THE ASSES SEE ARE REMITTED BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION. SINCE, WE ARE REMITTING THE ISS UE TO THE COMMISSIONER OF INCOME TAX (APPEALS) ON CONDONATION , WE REFRAINING FROM GOING INTO OTHER GROUND RAISED BY THE ASSESSEE . 10. IN THE RESULT, ALL THE EIGHTS APPEALS FILED BY THE ASSESSEE IN ITA NOS.343, 2904 TO 2910/MDS/2014 ARE ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIM E OF HEARING ON WEDNESDAY, THE 18 TH OF MARCH, 2015 AT CHENNAI. SD/- SD/- ( ! ) (CHALLA NAGENDRA PRASAD) ' / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER '# /CHENNAI. $% /DATED:18.03.2015. KV %& '( )( /COPY TO: 1. * APPELLANT 2. / RESPONDENT 3. + ( )/CIT(A) 4. + /CIT 5. (,- . /DR 6. -/ 0 /GF. I.T.A.NOS.343, 2904 TO 2910/MDS/ 2014 :- 9 -: