Kundayam Service Co-op Bank Ltd, Kollam V. The ITO,Wd-4, Kollam

ITA 415/COCH/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2633 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-10-2018
• Assessment Year: 2014-2015
• Appeal Filed On: 06-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: BINDU
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., JM I .T . A. NO. 415 / COCH/ 201 8 ASSESSMENT YEAR : 2014 - 15 M/S. KUNDAYAM SERVICE CO - OPERATIVE BANK LTD., KUNDAYAM P.O., PATHANAPURAM, KOLLAM. [PAN:AADAT 2149P] VS. THE INCOME TAX OFFICER, WARD - 4, KOLLAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I .T.A. NO. 414 /COCH/201 8 ASSESSMENT YEAR : M/S. P I DAVOOR SERVICE CO - OPERATIVE BANK LTD., AVANEESHWARAM P.O., KOLLAM. [PAN:AACAP 7516M] VS. THE INCOME TAX OFFICER, WARD - 4, KOLLAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) ASSESSEE BY MS. BINDU, ADV. REVENUE BY SMT. A.S. BINDHU, DR D ATE OF HEARING 29 /10/2018 DATE OF PRONOUNCEMENT 30 / 10 /2018 I.T.A. NO.414&415 /COCH/2018 2 O R D E R PER CHANDRA POOJARI, AM: THESE TWO APPEALS FILED BY DIFFERENT ASSESSES ARE DIRECTED AGAINST DIFFERENT ORDERS OF THE CIT(A), TRIVANDRUM DATED AND PERTAIN TO THE ASSESSMENT YEAR 2014-15. 2. SINCE THE ISSUES ARE COMMON IN THESE TWO APPEALS, THEY WERE CLUBBED TOGETHER, HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 3. THE ASSESSEES HAVE RAISED THE COMMON GROUND THAT THE CIT(A) OUGHT TO HAVE FOUND THAT THE SOCIETY WAS SEEKING DEDUCTION OF OPERATIONAL INCOME INCLUDING INTEREST INCOME ACCRUED FROM THE DEPOSIT OF SURPLUS FUNDS WITH DISTRICT CO-OPERATIVE BANKS AND SUB TREASURIES. 4. THESE APPEALS ARE FILED WITH THE DELAY OF 132 DAYS. ORIGINALLY, THE ASSESSES HEREIN FILED CONDONATION PETITIONS FOR CONDONING THE DELAY OF 139 DAYS. HOWEVER, THE DELAY WAS ONLY FOR 132 DAYS. LATER, THE ASSESSEE FILED ONE MORE AFFIDAVIT IN PLAIN PAPER AND NOT ON NON JUDICIAL STAMP PAPER, STATING THE DELAY WAS ONLY FOR 132 DAYS. THE CONDONATION PETITIONS FILED BY THE ASSESSEES ARE HAVING THE ADVOCATES SIGNATURE WITHOUT MENTIONING HIS NAME AND THEY ARE NOT BEARING OFFICE SEAL OF EITHER THE ADVOCATE OR THE NOTARY PUBLIC. THE FIRST CONDONATION I.T.A. NO.414&415 /COCH/2018 3 PETITIONS FILED BY BOTH THE ASSESSEES MENTIONED THE REASON FOR THE DELAY AS FOLLOWS: IT IS SUBMITTED THAT ON RECEIPT OF THE ORDER DATED 20/02/2018, THE APPELLANT TRIED TO GET LEGAL OPINION WITH REGARD TO THE ISSUE U/S. 143(3) OF THE ACT AND ALSO WITH THE PROVISIONS OF SECTION 80P(2)(A)(I) AND 80P(4), BUT THE ADVOCATE CONCERNED WAS OUT OF STATION AND SOME TIME WAS TAKEN FOR NEGOTIATION. LATER ON, THE APPELLANT WAS SICK DUE TO SEVERAL HEALTH PROBLEMS AND IN SUCH CIRCUMSTANCES, THERE WAS DELAY OF 139 DAYS IN FILING THE APPEAL ON TIME. THE DELAY WAS CAUSED IN FILING THE APPEAL UNDER THE AFORESAID CIRCUMSTANCES. THERE IS NO WILLFUL NEGLIGENCE OR LATCHES ON MY PART IN FILING THE APPEAL. THE APPELLANT WILL PUT TO IRREPARABLE INJURY AND HARDSHIP, IF THE DELAY OF 139 DAYS IN FILING THE APPEAL IS NOT CONDONED. 5. FURTHER, IN BOTH THE CASES, THE ASSESSEES HAVE NOT EXPLAINED THE SICKNESS OF THE SECRETARIES BY ANY CONCRETE EVIDENCE, LIKE MEDICAL CERTIFICATE. THE PETITIONS FILED BY THE ASSESSEES ARE VERY CASUAL AND OF GENERAL NATURE. WE ARE NOT ABLE TO COMPREHEND HOW BOTH THE SECRETARIES OF THE SOCIETIES ARE SUFFERING FROM SAME HEALTH PROBLEMS AT THE SAME TIME AND FOR SAME DURATION. IN THE ABSENCE OF ANY PROPER EXPLANATION FOR CONDONING THE DELAY, WE ARE NOT IN A POSITION TO CONDONE THIS DELAY. THE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIGI (167 ITR 471) HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL (253 ITR 798) 253 ITR 798, THE SUPREME COURT HELD THAT IN EXERCISING DISCRETION U/S. 5 OF THE LIMITATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST I.T.A. NO.414&415 /COCH/2018 4 BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE, THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND AS SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. IN THE ABOVE CASES, THE APEX COURT CLEARLY LAID DOWN THAT A DISTINCTION BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE LAW ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP OVER THEIR RIGHTS. IN THE PRESENT CASE, THOUGH THERE WAS DELAY OF 132 DAYS, THE ASSESSEE WAS NOT ABLE TO SPECIFY THE REASONS FOR THE LAPSE ON THE PART OF THE SECRETARIES IN THEIR OFFICIAL DUTIES. IN THE ABSENCE OF THESE DETAILS, THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE ASSESSEES CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHOSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE SUPREME COURT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361 HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN I.T.A. NO.414&415 /COCH/2018 5 AVOIDED CANNOT BE SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE, NOR INACTION, OR WANT OF BONA FIDE CAN BE IMPUTED TO THE ASSESSEE, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE AND SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. 5. IN THE PRESENT CASE, THE ASSESSEES JUSTIFIED THE DELAY ONLY WITH CONDONATION PETITIONS WHICH ARE VERY CASUAL AND GENERAL IN NATURE. BEING SO, THERE WAS NO PROPER EXPLANATION GIVEN BY THE ASSESSEE FOR THE DELAY IN FILING THE APPEALS. IN OUR OPINION, THERE IS NO GOOD AND SUFFICIENT REASON TO CONDONE THE DELAY. ACCORDINGLY, WE DECLINE TO CONDONE THE DELAY OF 132 DAYS IN FILING THE TWO APPEALS AND THE APPEALS ARE DISMISSED IN LIMINE. IN VIEW OF THE ABOVE, WE REFRAIN FROM GOING INTO OTHER GROUNDS OF APPEALS RAISED BEFORE US. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH OCTOBER, 2018. SD/- SD/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 30 TH OCTOBER, 2018 GJ COPY TO: 1. M/S. KUNDAYAM SERVICE CO-OPERATIVE BANK LTD., KUNDAYAM P.O., PATHANAPURAM, KOLLAM. 2. M/S. PIDAVOOR SERVICE CO-OPERATIVE BANK LTD., AVANEESHWARAM P.O., KOLLAM. I.T.A. NO.414&415 /COCH/2018 6 3. THE INCOME TAX OFFICER, WARD-4, KOLLAM 4. THE COMMISSIONER OF INCOME-TAX(APPEALS), TRIVANDRUM. 5. THE PR. COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 6. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 7. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN