Hindustan Fertiliser Corporation Ltd., Noida V. CIT, New Delhi

ITA 3909/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97313 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 27-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ EEV RANKA; A K SAROHA
• Assessee Lawyers: AJAY CHAWLA
• Keywords: Period of limitation; Condonation of delay
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH C NEW DELHI BEFORE : SHRI I.C. SUDHIR , JUDICIAL MEMBER & SHRI L.P. SAHU , ACCOUNTANT MEMBER ITA NO. 3909/DEL./2012 ASSTT. YEAR : 2004 - 05 HINDUSTAN FERTILIZER CORPN. LTD., VS. COMMISSIONER OF PDIL BHAWAN, A - 14, SECTOR 1, INCOME - TAX IV, NEW DELHI. NOIDA [PAN:AAACH0907N] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY CHAWLA, C.A. RESPONDENT BY : SHRI A.K. SAROHA, CIT/DR & SH. R AJEEV RANKA, SR. DR DATE OF HEARING : 01.09.2015 DATE OF PRONOUNCEMENT : 17 .09.2015 ORDER PER L.P. SAHU, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 23.03.2009 OF THE LD. CIT(A) PASSED U/S. 263 OF THE IT ACT FOR THE ASSESSMENT YEAR 2004 - 05. 2. THE RECORD REVEALS THAT THE ASSESSMENT O F THE ASSESSEE WAS REVISED BY THE LD.CIT U/S. 263 VIDE ORDER DATED 23.03.2009, WHICH IS SHOWN TO HAVE BEEN COMMUNICATED ON THE ASSESSEE ON 30.03.2009. ACCORDINGLY, THE APPEAL FOR BEING WITHIN THE PERIOD OF LIMITATION OUGHT TO HAVE BEEN FILED ON OR BEFORE 29.05.2009 , BUT THE SAME HAS BEEN FILED ON 27.07.2012 WITH A DELAY OF 115 5 DAYS. THE ASSESSEE HAS FILED AN APPLICATION TO CONDONE TH IS DELAY ON THE AVERMENTS THAT THE BUSINESS OF THE ASSESSEE WAS CLOSED DOWN BY THE DECISION OF THE GOVT. OF INDIA DATED 10 TH SEPT., 2002, AS A RESULT OF WHICH ALMOST STAFF WAS RELIEVED UNDER VOLUNTARY SEPARATION ITA NO. 3909/DEL./2012 2 SCHEME (VSS). CONSEQUENTLY, THE WORK OF ACCOUNTS AND TAXATION WAS DEPUTED TO BE LOOKED A FTER BY ONE PERSON FROM NATIONAL FERTILIZERS LIMITED, WHO USED TO VISIT THE OFFICE TWICE A WEEK FOR ROUTINE JOB. IT IS SUBMITTED THAT TAXATION MATTERS INCLUDING APPEARANCE BEFORE THE AUTHORITIES IN SCRUTINY CASES AND FILING OF NECESSARY PAPERS AND REPLIES WERE BEING LOOKED AFTER BY SH. SUBHASH CHAND PANWAR AND A CHARTERED ACCOUNTANT SH. SUNIL AGGARWAL WAS APPOINTED TO AD V ISE ON THE TAXATION MATTER, PREFERRING APPEALS, ATTENDING APPEAL PROCEEDINGS ETC. IT WAS SUBMITTED THAT CA SUNIL AGGARWAL DID NOT ADVISE T HE ASSESSEE FOR FILING AN APPEAL BEFORE THE ITAT AGAINST THE IMPUGNED ORDER U/S. 263, WHICH RESULTED INTO FILING THE APPEAL WITH A DELAY. AFFIDAVIT OF SHRI SUBHASH CHANDER PANWAR IS PLACED ON RECORD WITH THE CONTENTION THAT THE DELAY OF 1152 DAYS IN FILING THE APPEAL IS UNINTENTIONAL AND LIABLE TO BE CONDONED. THE LEARNED DR, ON THE OTHER HAND, OPPOSED THE APPLICATION FOR CONDONATION OF DELAY. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD, WE FIND THAT THERE IS NO SUFFICIENT C AUSE EXPLAINING THE INORDINATE DELAY OF 115 5 DAYS (WRONGLY SHOWN AS 1152 DAYS IN THE AFFIDAVIT OF SUBHASH CHANDER PANWAR) CAUSED IN FILING THE APPEAL. THE CONTENTIONS RAISED IN THE APPLICATION FOR CONDONATION OF DELAY SHOW THAT THE DELAY HAS BEEN EXPLAINED ON ACCOUNT OF INACTION ON THE PART OF CHARTERED ACCOUNTANT WHO IS SAID TO HAVE NOT ADVISED THE ASSESSEE TO FILE THE APPEAL AGAINST THE ORDER U/S. 263 OF THE ACT. HOWEVER, THERE IS NO EVIDENCE TO SUBSTANTIATE THIS FACT FROM THE SIDE OF THE CHARTERED ACCOUN TANT. THE APPELLANT COMPANY IS A GOVT. COMPANY WHO IS NOT SUPPOSED TO KEEP SLEEPING OVER THEIR RIGHTS FOR SUCH A LONG PERIOD AND NO BONA FIDE EXPLANATION HAS BEEN OFFERED TO JUSTIFY THE REASONS ASSIGNED FOR CONDONATION OF 115 5 DAYS DELAY. HON BLE SUPREME COURT IN A RECENT DECISION DATED 24.03.2014 IN THE CASE OF BRIJESH KUMAR & ORS. VS. STATE OF HARYANA & ORS. (SLP(CIVIL) NOS. 6609 - 6613), ITA NO. 3909/DEL./2012 3 OF 2014, AFTER CONSIDERING VARIOUS DECISIONS OF APEX COURT, HAS LAID DOWN AS UNDER : THE COURTS SHOULD NOT ADOPT AN INJUSTICE - ORIENTED APPROACH IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY. HOWEVER, THE COURT WHILE ALLOWING SUCH APPLICATION HAS TO DRAW A DISTINCTION BETWEEN DELAY AND INORDINATE DELAY FOR WANT OF BONA FIDES OF AN I NACTION OR NEGLIGENCE WOULD DEPRIVE A PARTY OF THE PROTECTION OF SECTION 5 OF THE LIMITATION ACT , 1963.SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR EXERCISE OF DISCRETION BY THE COURT FOR CONDONING THE DELAY. THIS COURT HAS TIME AND AGAIN HELD THAT WHEN M ANDATORY PROVISION IS NOT COMPLIED WITH AND THAT DELAY IS NOT PROPERLY, SATISFACTORILY AND CONVINCINGLY EXPLAINED, THE COURSE CANNOT CONDONE THE DELAY ON SYMPATHETIC GROUNDS ALONE. 4. IN VIEW OF THIS VERDICT OF HON BLE APEX COURT AND THERE BEING NO REA SONABLE CAUSE EXPLAINED BY ASSESSEE FOR INORDINATE DELAY, WE ARE INCLINED TO DISMISS THE APPEAL AS BARRED BY LIMITATION. 5. IN THE RESULT, THE APPEAL IS DISMISSED, AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 17.09.2015 . SD/ - S D/ - ( I.C. SUDHIR ) ( L.P. SAHU ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 17.09.2015 *AKS/ - COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES , NEW DELHI