TAS ENGINEERING CO. P. LTD, MUMBAI V. ITO 3(3)(4), MUMBAI

ITA 3839/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49205 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 29-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 12-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI PRAMOD KUMAR, A.M. AND SHRI V. DURGA R AO, J.M. ITA NO. 3839/MUM/2010 ASSESSMENT YEAR: 2003-04 TAS ENGINEERING CO. PVT. LTD., APPELLANT 715, RAHEJA CHAMBERS, NARIMAN POINT, MUMBAI 400 021 (PAN _ AAACT3206G) VS. INCOME TAX OFFICER -3(3)(4), RESPONDENT AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. APPELLANT BY : MR. PRAKASH PANDIT RESPONDENT BY : MR. S.K. SINGH . ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF CIT(A)- XXXII, MUMBAI, PASSED ON 25/10/2007 FOR THE ASSESSMENT YEAR 2003-04, WHEREIN THE ASSESSEE HAS RAISED THE F OLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN LAW IN UPHOLDING THE ADDITION OF RS . 50,00,000/- WITHOUT APPRECIATING THE FACTS OF THE APPELLANT HAS VALUED CLOSING WORK IN PROGRESS AT COST OR MARKET VALUE WHICHEVER IS LOWER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN LAW IN UPHOLDING THE ASSESSING OFFI CERS ORDER OVERLOOKING THE FACT THAT THE ASSESSEE HAD PRODUCED FULL QUANTITATIVE DETAILS OF OPENING & CLOSING WORK IN P ROGRESS & ADDITION WAS MERELY ON TECHNICAL GROUND DUE TO DIFF ERENCES OF OPINION ON VALUATION OF CLOSING WORK IN PROGRESS. ITA NO. 3839/M/2010 TAS ENGINEERING CO.PVT. LTD. 2 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) & I TO ON THE ABOVE GROUNDS BE SET ASIDE. 2. AT THE TIME OF HEARING BEFORE US, WE FIND THAT T HIS APPEAL FILED BEFORE US TIME BARRED BY 821 DAYS. TO THIS EFFECT T HE ASESSSEE HAS EXECUTED AN AFFIDAVIT AFFIRMING ON OATH THE REASONS FOR THE DELAY IN FILING THE APPEAL, WHICH ARE AS UNDER:- 2. THE APPEAL WAS AGAINST THE ADDITION OF RS. 50,00 ,000/- IN CLOSING WORK IN PROGRESS BY LEARNED ASSESSING OFFIC ER WARD 3(3)(4). COMPANY HAD SUFFERED HEAVY LOSSES OF RS. 3 ,46,47,009/- DURING THE RELEVANT FINANCIAL YEAR & EVEN AFTER ADD ITION OF RS. 50,00,000/- THE TAX LIABILITY WAS NIL. 3. THE COMPANY WAS ON THE VERGE OF LIQUIDATION DUE TO HEAVY LOSSES & DIRECTORS WERE NOT IN PROPER STATE OF MIND TO TAKE THE RIGHT DECISION TO FILE APPEAL BEFORE HON. ITAT. 4. THE BOARD HAS REALIZED THE ERROR NOW & HAS DECID ED TO REQUEST HONBLE BENCH TO ALLOW TO FILE THE APPEAL BY CONDON ATION OF DELAY. 3. THE LEARNED COUNSEL FOR THE ASESSSEE HAS REITERA TED THE REASONS MENTIONED IN THE AFFIDAVIT AND PLEADED TO CONDONE T HE DELAY IN FILING APPEAL BEFORE US. THE LEARNED DR, ON THE OTHER HAND , STRONGLY OPPOSED THE CONDONATION OF DELAY. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. THE TRIBUNAL MAY ADMIT AN APPEA L FILED BEYOND THE PERIOD OF LIMITATION IF IT IS SATISFIED THAT TH ERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN TIME. SECTION 253(5) OF THE ACT, WHICH AUTHORIZES THE TRIBUNAL TO ADMIT A BELATED AP PEAL READS AS UNDER:- THE APPELLATE TRIBUNAL MAY ADMIT AN APPEAL OR PERMI T THE FILING OF A MEMORANDUM OF CROSS-OBJECTIONS AFTER THE EXPIR Y OF THE RELEVANT PERIOD REFERRED TO IN SUB-SECTION (3) OR S UB-SECTION (4), IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. 5. WE ARE OF THE VIEW THAT THE REASONS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE NOT SUFFICIENT REASONS FOR NON-FILING APPEAL WITHIN THE PRESCRIBED TIME. IN OUR CONSIDERE D VIEW, THE ITA NO. 3839/M/2010 TAS ENGINEERING CO.PVT. LTD. 3 ASSESSEE HAS FAILED TO SHOW SUFFICIENT CAUSE FOR NO N-FILING OF APPEAL WITHIN THE TIME PRESCRIBED BY THE STATUTE AND ALSO FAILED TO SHOW SUFFICIENT CAUSE FOR CONDONATION OF INORDINATE DELA Y OF 821 DAYS. IN THIS CONTEXT, THE HON'BLE SUPREME COURT IN THE CASE OF P.K. RAMACHANDRAN VS. STATE OF KERALA IV (1997) CLT 95 ( SC) 2276. IN PARA 6 OF THE JUDGMENT, THE HON'BLE SUPREME COURT H AS OBSERVED AS UNDER :- LAW OF LIMITATION MAY HARSHLY AFFECT A PARTICULAR PARTY BUT IT HAS TO BE APPLIED WITH ALL ITS RIGOR WHEN THE STATU TE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND THE PERIOD O F LIMITATION ON EQUITABLE GROUNDS. THE DISCRETION EXERCISED BY T HE HIGH COURT WAS, THUS, NEITHER PROPER NO JUDICIOUS. THE ORDER C ONDONING THE DELAY CANNOT BE SUSTAIN. THIS APPEAL, THEREFORE, S UCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY, THE APPLICATION FOR CONDONATION OF DELAY FILED IN THE HIGH COURT WO ULD STAND REJECTED AND THE MISC. FIRST APPEAL SHALL STAND DIS MISSED AS BARRED BY TIME. NO COSTS. 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF THE HON'BLE SUPREME COURT AND SINCE THE ASSESSEE HAS N OT MADE OUT SUFFICIENT CAUSE FOR CONDONATION OF DELAY OF 821 DA YS IN THE PRESENT APPEAL, THE PRAYER FOR CONDONATION OF DELAY IS REJE CTED AND DELAY OF CONDONATION APPLICATION FILED BY THE ASSESSEE IS DI SMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED AS BARRED BY LIMITATION. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JUNE, 2011. SD/- SD/- (PRAMOD KUMAR) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 29 TH JUNE, 2011 KV ITA NO. 3839/M/2010 TAS ENGINEERING CO.PVT. LTD. 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, J BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.