KRISHNA DEVELOPERS, MUMBAI V. DCIT 8(1), MUMBAI

ITA 3914/MUM/2015

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5814 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 24-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIYA
• Keywords: Period of limitation; Reasonable cause; Time period of passing order

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI SHAMIM YAHA , A M & HONBE SH. SANDEEP GOSAIN, J M ./ I.T.A. NO . 3914 /MUM/2015 ( / ASSESSMENT YEAR: 2010 - 11) KRISHNA DEVELOPERS, PROP . RAJIV RAJARAM K ASHYAP, 51/54, JUHU SUPREME SHIPPING CENTRE, GULMOHAR CROSS RD NO. 9 JVPD SCHEME, ANDHERI(W), MUMBAI - 400049 / VS. DCIT 8(1) 210, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. A CUPK9810E ( / APPELL ANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI CHAITANYA ANJARIYA, DR / DATE OF HEARING : 04/12 /201 8 / DATE OF PRONOUNCEMENT : 05/12/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISS I ONER OF INCOME TAX - 16 , DATED 08.01.15 FOR AY 2010 - 11 . 2 ITA NO. 3914/MUM/2015(A.Y. 2010 - 11 ) RAJIV RAJARAM KASHYAP 2. AT THE VERY OUTSET, IT IS NOTICED THAT NONE HAS APPEARED ON BEHALF OF ASSESSEE IN SPITE OF SEVERAL CALLS AND EVEN NO APPLICATION FOR ADJOURNMENT WAS MOVED. FROM THE RECORDS, WE ALSO NOTICED THAT NOTICE WAS ISSUED TO THE ASSESSEE ON THE ADDRESS GIVEN BY THE ASSESSEE ON FORM NO. 36, BUT THE REPORT OF THE POSTAL AUTHORITY SHOWS THAT THE ASSESSEE HAS LEFT FROM THE SAID ADDRESS. AGAIN THE NOTICE WAS ISSUED THROUGH RPAD ON THE LAST AND BEST KNOWN ADDRESS WITH THE REVENUE AUTHORITIES. BUT EVEN IN SPITE OF THAT NONE HAD APPEARED ON THE DATE FIXED. ON THE OTHER HAND L D. DR IS PRESENT IN THE CO URT AND IS READY WITH ARGUMENTS. THEREFORE WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PA RTE WITH THE ASSISTANCE OF THE L D. DR AND THE MATERIAL PLACED ON RECORD. 3 . AT THE VERY OUTSET, OUR ATTENTION WAS DRAWN TO THE LETTER DATED 30.05.15 FIL ED BY THE ASSES SEE THAT THERE IS A DELAY OF 107 DAYS IN FILING THE APPEAL AND FOR THAT AN AFFIDAVIT WAS ALSO FILED. FROM THE CONTENTS OF THE APPLICATION AS WELL AS AFFIDAVIT, WE NOTICE THAT THE ASSESSEE HAD PUT FAULT UPON THE CHARTERED ACCOUNTANT, BUT NO A FFIDAVIT OF CHARTED ACCOUNTANT HAS BEEN PLACED ON RECORD. 4 . WE HAVE HEARD LD. DR ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. AFTER ANALYZING THE RECORDS, WE ARE OF THE C ONSIDERED VIEW THAT CONDONATION IS NOT A 3 ITA NO. 3914/MUM/2015(A.Y. 2010 - 11 ) RAJIV RAJARAM KASHYAP MATTER OF RIGHT AND THERE HAS TO BE A REASONABLE CAUSE FOR THE SAME AND THEREFORE EACH CASE HAS TO BE WEIG HED FROM ITS OWN FACTS AND CIRCUM STANCES IN WHICH THE PARTY INITIALLY ACTS AND BEHAVES . A S PE R THE FACTS OF THE PRESENT CASE, THERE IS A LONG DE LAY OF 107 DAYS IN FILING THIS APPEAL BEFORE US. A LTHOUGH AS PER THE PROVISIONS OF SECTION 253(5 ) OF INCOME TAX ACT AND APPEAL BEFORE THE APPELLATE TRIBUNAL AFTER THE EXPIRY OF STATUTORY PERIOD FROM THE DATE OF ORDER CA N BE ADMITTED IF THE ASSESS EE SATISFIED THAT THE ASSESSEE HA S SUFFICIENT CAUSE FOR NOT PRESENT ING APPEAL WITHIN TIME. 5 . WE HAVE GONE THROUGH THE PROVISIONS OF SECTION - 3 , OF THE LIMITATION ACT WHICH READS AS UNDER: - BAR OF LIMIT ATION IS (I) SUBJECT TO T HE PROVISIONS CONTAINED IN SECTION 4 TO 24 (INCLUSIVE) EVERY SUIT INSTITUTED, APPEAL PREFERRED, AND APPLICATION MADE AFTER THE PRESCRIBED PERIOD SHALL BE DISMISSED ALTHOUGH LIMITATION HAS NOT BEEN SET UP AS DEFENCE. T HE PROVISIONS OF SECTION 3 OF THE LI MITATION ACT PROHIBITS FILING OF ANY PROCEEDING AFTER THE EXPIRY OF LIMITATION PERIOD. HOWEVER, SECTION 5 OF THE LIMITATION ACT 1963 GIVES POWER TO THE COURT TO CONDONE THE DELAY IF THE APPLICANT/APPELLANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE HAVE NOT PREFERRING THE APPEAL WITHIN SUCH TIME. 4 ITA NO. 3914/MUM/2015(A.Y. 2010 - 11 ) RAJIV RAJARAM KASHYAP 6. WE AR E CONSCIOUS OF THE FACT THAT RULES OF LIMITATION ARE NOT MEANT TO DES TROY THE RIGHTS OF PARTIES, B UT AT THE SAME TIME T HEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS AND SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE C AUSED BY REASON OF LEGAL INJURY AND T HE LAW OF LIMITATIO N FIXES A LIFESPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS AL OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATIO N IS THUS FOUNDED ON PUBLIC POLICY WHICH IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION) . HOWEVER, IN THE CASE OF RANKAK & OTHERS VRS. REVA COAL LTD [AIR 1962 (SC) 361] , THE HONBLE APEX COURT HAVE HELD THAT CONDONATION IS NOT A MATTER OF RIGHT AND THERE HAS TO BE A REASONABLE CAUSE FOR THE SAME. SIMILAR OBSERVATIONS WERE MADE BY HONBLE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA VRS. ACIT [317 ITR 458] . 7 . AFTER APPRECIATING THE JUDG MENTS AS REFERRED ABOVE , WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO THUMB RULE THAT THE DELAY IN ALL CASES IS TO BE CONDONE D. HOWEVER, A CCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERIA . SOMETIMES THE DE LAY OF THE SHORTEST RA NGE MAY BE UNCONDONABLE DUE TO WANT OF ACCEPTABLE EXPLANATION WHEREAS IN CERTAIN OTHER CASES, DELAY OF A LONG RANGE CAN BE CON DONED AS THE EXPLANATION THEREOF IS SATISFACTORY . B UT WHEN THERE IS REASONABLE GROUND TO 5 ITA NO. 3914/MUM/2015(A.Y. 2010 - 11 ) RAJIV RAJARAM KASHYAP THINK THAT THE DELAY WAS OCCASIONED BY TH E PARTY DELIBERATELY TO GAIN TIME, THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION . IN THE FACTS OF THE PRESENT CASE, TH E ASSESSEE HAS WOKEN UP FROM HIS S LUMBER AFTER A HUGE DELAY OF 107 DAYS AND IT HAS NOT BEEN SHOWN THAT ALL POSSIBLE STEPS TO FILE THE APPEAL BEFORE THE TRIBUNAL WERE TAKEN AND THE DELAY IN FILING THE APPEAL WAS NOT BECAUSE OF ANY FACTORS WHICH WERE BEYOND THE CONTROL OF ASSESSEE. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE NOT AT ALL C ONVINCED WITH THE CASUAL AND CAVALIER APPROACH OF THE ASSESSEE IN PURSUING THE LEGAL REMEDY OF APPROACHING THE APPELLATE TRIBUNAL BY WAY OF FILING APPEAL. RESULTANTLY, THIS PLEA RAISED BY THE ASSESSEE FOR CONDONING THE DELAY IN FILING APPEAL STANDS DISMI SSED . 8 . SINCE WE HAVE ALREADY DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND OF LIMITATION , THEREFORE THERE IS NO NEED TO ADJUDICATE OTHER GROUNDS RAISED BY THE ASSESSEE. 9 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PR ONOUNCED IN THE OPEN COURT ON 5 TH DEC. 2018. SD/ - SD/ - ( SHAMIM YAHYA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 05 . 12 .201 8 SPS/DHANANJAY 6 ITA NO. 3914/MUM/2015(A.Y. 2010 - 11 ) RAJIV RAJARAM KASHYAP / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER , / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI