LALIT SINGH MUKTAWAT, Jaipur V. ACIT, Jaipur

ITA 346/JPR/2011

• Counselvise Citation: 34623114 RSA 2011
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: R C SHAH
• Keywords: Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 346/ JP/2011 ASSESSMENT YEAR 2007-08 PAN: ACSPM 7884 L SHRI LALIT SINGH MUKTAWAT VS. THE ACIT 74-A, DEVI PATH, TAKHT-E-SHAHI ROAD CIRCLE- 6 JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) ASSESSEE BY: SHRI R.C. SHAH DEPARTMENT BY : SHRI D.K. MEENA DATE OF HEARING: 15-09-2011 DATE OF PRONOUNCEMENT: 07-10-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORD ER OF THE LD. CIT(A)-II, JAIPUR DATED 18-05-2010 FOR THE ASS ESSMENT YEAR 2007-08. 2.1 THE APPEAL HAS BEEN FILED BELATEDLY AND A REQUE ST HAS BEEN MADE FOR CONDONATION OF DELAY. IN THE CONDONATION OF DELAY, IT WAS SUBMITTED THAT REVENUE FILED AN APPEAL AGAINST THE ORDER OF THE LD .CIT(A) AND HIS EX- COUNSEL MADE HIM TO UNDERSTAND THAT HE HAS FILED TH E CROSS OBJECTION. THE ASSESSEE RECEIVED NOTICE DATED 7 TH DEC. 2010 AND IN THE NOTICE, IT WAS 2 MENTIONED AS ACIT VS LALIT SINGH (I.E. ASSESSEE). HOWEVER, THE NOTICE WAS ADDRESSED TO LALIT SINGH VS ACIT, AND THEREFORE , THE ASSESSEE WAS UNDER IMPRESSION THAT CROSS OBJECTION HAS BEEN FILE D. LATER ON, IT CAME TO THE NOTICE OF THE ASSESSEE THAT ASSESSEES CROSS OB JECTION WAS NOT FILED. WHEN THE APPEAL OF THE DEPARTMENT WAS HEARD ON 11- 04-2011, THE ASSESSEE CAME TO KNOW THAT CROSS OBJECTION HAS NOT BEEN FILED. THUS THE ASSESSEE FILED AN APPEAL AFTER DELAY OF NEARLY 09 M ONTHS. THE ASSESSEE MADE A REQUEST FOR CONDONATION OF DELAY AND ALSO EN CLOSED THE AFFIDAVIT OF HIS COUNSEL. 2.2 IN THE AFFIDAVIT, THE COUNSEL STATED THAT THE C ROSS OBJECTION WAS PREPARED BUT DUE TO NEGLIGENCE ON THE PART OF HIS A SSISTANT, THE SAME COULD NOT BE FILED. THE ASSESSEE IS FILING FRESH APPEAL A S MAIN APPEAL HAS ALREADY BEEN DISPOSED OFF. 2.3 WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF CONDONATION OF DELAY. THE APPEAL FILED BY THE REVENUE WAS HEARD ON 11-04-2011. THE ASSESSEE GAVE THE POWER OF ATTORNEY IN THE NAME OF SHRI R..C. SHAH FOR APPEARING BEFORE THE TRIBUNAL. THE DATE IS NOT MENT IONED ON THE POWER OF ATTORNEY. BEFORE THE LD.CIT(A), SHRI K.L. DUA, C.A. APPEARED ON BEHALF OF THE ASSESSEE. THE WRITTEN SUBMISSIONS WERE FILED BY THE LD COUNSEL OF THE ASSESSEE WHEN APPEAL FILED BY THE REVENUE WAS HEARD . THE WRITTEN 3 SUBMISSIONS WERE FILED ON 8-04-2011. IT MEANS THAT THE ASSESSEE WAS FULLY AWARE OF THE FACT THAT APPEAL OF THE REVENUE HAS BE EN FIXED AND THE MATTER IS TO BE HEARD. EVEN DURING THE COURSE OF HEARING, NOTHING WAS MENTIONED THAT THE ASSESSEE WAS INTERESTED IN FILING THE CROS S OBJECTION. IT IS REALLY STRANGE THAT PRESENT APPEAL MENTIONS THAT THE ASSES SEE HAS VERIFIED FORM NO. 36 ON 11-04-201 I.E. THE DATE ON WHICH THE APPE AL FILED BY THE REVENUE WAS HEARD. THE DELAY CAN BE CONDONED IN CASE THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE SAME WITHIN THE PERIOD. THE EXPRESSION SUFFICIENT CAUSE IMPLIES NO NEGLIGENCE, NOR ANY ACTION NOR WA NT OF BONAFIDES. IN THE INSTANT CASE, NOTICE WAS ISSUED ON THE APPEAL FILED BY THE REVENUE AND SUCH NOTICE HAS BEEN SERVED ON THE ASSESSEE. AFTER RECEIPT OF THIS NOTICE, THE ASSESSEE MUST HAVE CONTACTED THE LD. COUNSEL. T HE LD. COUNSEL HAS FILED THE WRITTEN SUBMISSIONS WHILE ARGUING THE APP EAL FILED BY THE REVENUE. THE LD. COUNSEL WAS FULLY AWARE OF THE ORD ER OF THE LD.CIT(A). IT APPEARS THAT THE ASSESSEE TOOK A CONSCIOUS DECISION OF NOT AGITATING THE ISSUE ON WHICH THE LD.CIT(A) HAS DECIDED THE ISSUE AGAINST HIM. FOR CONDONTION OF DELAY, THE ASSESSEE SHOULD BE DILIGEN T AND SHOULD NOT BE GUILTY OF NEGLIGENCE CAUSE FOR DELAY IN FILING THE APPEAL. IF IT CAN BE AVOID BY DUE CARE AND ATTENTION THEN SUCH CAUSE IS NOT SUFFICIENT CAUSE. RELIANCE IS PLACED ON THE DECISION OF THIRD MEMBER IN THE CA SE OF JCIT VS TRACTORS 4 FARMS AND EQUIPMENT LTD., 104 ITD 149 . HON'BLE DELHI HIGH COURT IN THE CASE OF SURENDER KUMAR BOVEJA VS CWT, 287 ITR 52 H ELD THAT THE ASSESSEE IS NEGLIGENT OR FAILURE TO SEEK LEGAL ADVI CE, CANNOT BE A SUFFICIENT CAUSE. WE HAVE CONSIDERED THE CASE LAWS ON WHICH TH E ASSESSEE HAS RELIED UPON AND THOSE DECISIONS ARE NOT APPLICABLE BECAUSE IN THOSE CASES, THE APPEAL WAS NOT FILED EVEN AFTER NOTING THAT REVENUE HAS ALREADY FILED THE APPEAL. WE THEREFORE, DECLINE THE CONDONATION OF DE LAY. 3,1 THE ASSESSEE RAISED AN APPEAL IN RESPECT OF DI SALLOWANCE U/S 40A(IA). THE ASSESSEE ENTERED INTO CONTRACT WITH M/ S. NOKIA INDIA (P) LTD. TO PROVIDE VEHICLES. THE ASSESSEE HIRED THOSE VEHIC LES. BEFORE THE AO, IT WAS NEVER SUBMITTED THAT THE ASSESSEE IS NOT REQUIR ED TO DEDUCT THE TAX AT SOURCE. IT IS NOT THE CASE OF THE ASSESSEE THAT IT HAS NOT DEDUCTED THE TAX ON ALL THE PAYMENTS. THE AO IN HIS ORDER HAS CLEARLY M ENTIONED THAT THERE ARE INSTANCES WHERE TDS WAS DEDUCTIBLE BUT NOT DEDUCTE D AT ALL OR THE CASE WHERE TDS WAS DEDUCTED BUT NOT PAID TO THE CREDIT O F CENTRAL GOVT. THE DISALLOWANCE WAS TO THE EXTENT OF RS. 2,84,591/- OU T EXPENSES INCURRED TO THE EXTENT OF RS. 41,41,146/-. 3.2 BEFORE THE LD CIT(A), IT WAS CONTENDED THAT TDS WAS NOT DEDUCTED. THE PAYEE HAD INFORMED THAT THEIR INCOME WAS BELOW TAXABLE LIMIT. HOWEVER, FORM NO. 15H WAS NOT RECEIVED FROM THE PAY EE AND THEREFORE, 5 THE LD CIT(A) HAS UPHELD THE DISALLOWANCE OF RS. 2, 84,591/-. THE ASSESSEE GAVE THE SUB-CONTRACT AND THEREFORE, THE ASSESSEE W AS REQUIRED TO DEDUCT THE TDS @. 1%. IN CASE THE TDS IS DEDUCTED THEN TH E ASSESSEE WILL BE ENTITLED TO DEDUCTION OF THE SUM OF RS. 2,84,595/- FOR THE YEAR IN WHICH SUCH DEDUCTION IS MADE. THE ASSESSEE CAN CLAIM THE DEDUCTION AS PER PROVISIONS OF THE ACT IN THE YEAR IN WHICH TDS IS P AID. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07-10 -2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 07 /10/2011 *MISHRA COPY FORWARDED TO :- 1. SHRI LALIT SINGH MUKTAWAT, JAIPUR 2. THE ACIT, CIRCLE- 6, JAIPUR 3. THE LD. CIT BY ORDER 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.346/JP /11) A.R, ITAT, JAIPUR 6