Late Sh. Prem Chand Garg (through) legal heir Sh. Kewal Garg), Chandigarh V. DCIT, CC-II, Chandigarh

ITA 416/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2820 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 04-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH SR DR
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ITA NO. 416/CHD/2018 ASSESSMENT YEAR : 2011-12 LATE SHRI PREM CHAND GARG, (THROUGH LEGAL HEIR SHRI KEWAL GARG), H.NO. 340, SECTOR 9, CHANDIGARH. VS THE CIT, CENTRAL CIRCLE-II, CHANDIGARH. ./ PAN NO. : ABJPG6598B / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE # ! ' / REVENUE BY : SHRI MANJIT SINGH, SR.DR $ % ! & / DATE OF HEARING : 06.12.2018 '()* ! & / DATE OF PRONOUNCEMENT : 28.02.2019 CONCURRING ORDER PER DIVA SINGH AT THE TIME OF HEARING, THE PRESENT APPEAL WHEREIN DESPITE NOTICE THE ASSESSEE REMAINED UNREPRESENTED AND FURTHER THE DEFECT S POINTED OUT BY THE REGISTRY VIDE NOTICE DATED 18.05.2018 ALSO REMAINED UN ADDRESSED, IT WAS DEEMED APPROPRIATE TO PASS AN EX-PARTE ORDER AFTE R HEARING THE LD. SR. DR SHRI MANJEET SINGH. FOLLOWING THE ORDER IN THE CASE OF CIT VS MULTIPLAN INDIA PVT. LTD. (1991) 38 ITD 320 AND OTHERS IT WAS PRONO UNCED THAT IN VIEW OF THE AFOREMENTIONED REASONS, THE APPEAL OF THE ASSESSE E WAS BEING DISMISSED. THESE FACTS NOTICED ON THE BENCH WERE FOUND NO T INCLUDED IN THE PROPOSED ORDER. ACCORDINGLY, AS PER CONVENTIONS AND P RACTICES IN THE PECULIAR FACTS AND CIRCUMSTANCES THESE WERE BROUGHT TO THE NOTICE OF MY LEARNED SISTER VIDE D.O. LETTER NO. JM/CHD/2019/JUDICIAL/04 DATED 18.01.2019. HOWEVER, THE REQUEST HAS COME BACK ACCOMPA NIED BY D.O. LETTER NO. AM/CHD/2019/01 DATED 29.01.2019 WITH FULL SIGNATU RES AND THE INDICATION THAT CHANGES WERE NOT DEEMED NECESSARY. IN ORDER TO AVOID A CONFUSION AS TO THE NATURE OF COMMUNICATION AND INTENT, TH E FOLLOWING SPECIFIC PARA FROM THE AFORESAID D.O. LETTER ADDRESSED BY MY SISTER IS EXTRACTED HEREUNDER : ITA 416/CHD/2018 A.Y.2011-12 PAGE 2 OF 3 IT IS RESPECTFULLY STATED THAT I HAD VERY WELL NOT ED THE SAID FACT, BUT AT THE SAME TIME, WHILE GOING THROUGH THE FILE I NOTED THA T THE ASSESSEE HAD FILED AN APPLICATION FOR CONDONING THE DELAY ADDUCING REASON ABLE CAUSE LEADING TO THE DELAY. SINCE THE APPEAL HAS BEEN DISMISSED ON ACCOU NT OF THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE IN PURSUING THE APPEAL ,NO T ATTENDING THE HEARINGS FIXED ON VARIOUS DATES,THE FACT OF DELAY IN FILING THE APPEAL FOUND NO MENTION IN THE ORDER. EVEN -OTHERWISE, IT WOULD BE UNFAIR TO DISMI SS THE APPEAL BY ATTRIBUTING NON-SERIOUSNESS ON THE PART OF THE ASSESSEE IN PURS UING THE APPEAL ON THE GROUND OF DELAY IN FILING APPEAL WITHOUT CONSIDERIN G THE APPLICATION FOR CONDONATION OF DELAY.SINCE WE HAVE NOT DEALT WITH T HE MERITS OF THE CASE,HENCE THE NON- INCLUSION OF THE FACT IN THE PROPOSED ORDER. ACCORDINGLY, IN VIEW OF THE ABOVE CLARIFICATION ON YOUR SUGGESTED MODIFICATION TO THE PROPOSED ORDER, THE FILE ALONGW ITH THE PROPOSED DRAFT ORDER IS BEING SENT BACK FOR NECESSARY ACTION AT YOUR END. WITH DUE REGARDS. SD/- (ANNAPURNA GUPTA) ACCOUNTANT MEMBER 2. FOR THE SAKE OF COMPLETENESS AND IN ORDER TO AVOID A PERCEPTION OF FACTUAL INACCURACIES AS JUDGES(MEMBERS) ARE HEARD ONLY THROUGH THEIR JUDGEMENTS/ORDERS, THE SPECIFIC FACTS WHICH TRANSPIRED IN T HE COURT AND AVAILABLE ON RECORD BROUGHT TO THE NOTICE OF MY SISTER IN D.O. LETTER DATED 18.01.2019 ARE EXTRACTED HEREUNDER FOR READY REFERENCE : I MAY BRING TO YOUR NOTICE THAT IN THE PROPOS ED ORDER, YOU HAVE FAILED TO REFER TO: I) THE DELAY OF 58 DAYS POINTED OUT BY THE REGIST RY ; II) THIS FACT HAS BEEN NOTED BY THE BENCH CLERK/REGISTR Y ON THE COVER OF THE FILE ITSELF IN RED PEN; III) IT WAS ALSO NOTED BY US IN THE HEARING AND IS MENTIONED IN MY LOG BOOK; AND IV) IS ALSO EVIDENT FROM THE SHOW CAUSE NOTICE DATE D 18.05.2018 AVAILABLE ON THE FILE ISSUED ON 24.05.2018 BY SPEED POST 990/21 WHEREIN THE REGISTRY HAS POINTED OUT A DELAY OF 58 DAYS. 3. I FIND THAT IN THE PROPOSED ORDER, NO SUCH REFER ENCE HAS BEEN MADE BY YOU. I WOULD REQUEST YOU TO KINDLY TAKE NOTE THEREOF IN PARA 2 O F THE ORDER. THE FOLLOWING ORDER MADE AVAILABLE DOES NOT REFER TO THE SAID SALIENT FACT W HICH ULTIMATELY LED US TO CONCLUDE THAT THE ASSESSEE MAY NOT BE SERIOUS IN PURSUING THE APPEAL FILED :- THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS-3, GURGAON (IN SHORT 'CIT(A)' DATED 30.11.2017 PASSED U/S 250(6) OF THE INCOME TAX AT, 1961 (HEREINAFTER REFERRED TO AS 'ACT'). 2. THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 5.7.2018 AND THE SAME WAS ADJOURNED TO 11.9.2018. ON 11.9.2018 NONE APPEA RED ON BEHALF OF THE ASSESSEE AND THE CASE WAS ADJOURNED TO 6.11.2016. O N THE SAID DATE THE BENCH DID NOT FUNCTION AND THE CASE WAS ADJOURNED TO 6.12 .2018. NOTICE WAS ISSUED TO THE ASSESSEE ON 20.11.2018. HOWEVER, ON THE APPO INTED DATE OF HEARING I.E. 6.12.2018 NONE APPEARED ON BEHALF OF THE ASSESSEE N OR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. IT SEEMS THAT THE ASSESSEE I S NOT INTERESTED IN PURSUING THE APPEAL AND THE INSTANT APPEAL FILED BY THE ASSE SSEE IS LIABLE TO BE DISMISSED. 3. IN OUR ABOVE VIEW, WE GET SUPPORT FROM THE DEC ISION OF THE APEX COURT IN THE CASE OF CIT VS. B.N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 & 478) WHEREIN THEIR L ORDSHIPS HAVE HELD THAT : ' THE APPEAL DOES NOT MEAN MERELY FILING OF THE APP EAL BUT EFFECTIVELY PURSUING IT.' 4. OUR VIEW FURTHER FINDS SUPPORT FR OM THE FOLLOWING DECISIONS ALSO :- ITA 416/CHD/2018 A.Y.2011-12 PAGE 3 OF 3 I) CIT VS. MULTIPLAN INDIA (P) LTD., 38 ITD 320 (DEL) II) ESTATE OF LATE TUKOJIRAO HOLKAR VS.CWT, 223 ITR480 (MP) 5. RESPECTFULLY FOLLOWING THE DECISIO NS (SUPRA), WE DISMISS THE INSTANT APPEAL FILED BY THE ASSESSEE FOR NON-PR OSECUTION. 6. BEFORE PARTING, IT IS APPROPRIATE TO ADD THAT IN THE EVENTUALITY THE ASSESSEE IS ABLE TO SHOW THAT THERE WAS A REASONABLE CAUSE FOR NON-REPRESENTATION ON THE DATE OF HEARING, IT WOULD BE AT LIBERTY TO PRAY FOR A RECALL OF THIS ORDER BY MAKING AN APPROPRIATE PRAYER. SAID ORDER WAS PRONOUNCED IN THE O PEN COURT AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. 4. ACCORDINGLY, IN VIEW OF THE ABOVE, THE FILE ALON GWITH THE PROPOSED DRAFT ORDER IS SENT BACK FOR NECESSARY ACTION AT YOUR END. (EMPHASIS PROVIDED BY WAY OF UNDERLINING ) 3. ACCORDINGLY, DULY NOTING THAT THERE IS A PHOTO COPY O F A CONDONATION OF DELAY APPLICATION NOTICED BY MY SISTER UNILATERALLY IN CHAM BER WHICH WAS NEVER POINTED OUT ON THE BENCH, AN OFFICE REPORT WAS CALLE D FORTH. THOUGH THE FACT THAT THE DEPARTMENT WAS NEVER CONFRONTED WITH SAME IN THE TWO PASS OVERS GIVEN EVEN IF IGNORED AND ALSO WITHOUT GETTING INTO THE DEBATE OF UNILATERAL RE-APPRECIATION OF FACTS IN CHAMBER, THE REPORT O F THE REGISTRY STATES THAT THE PHOTO COPY MAKES A REFERENCE TO A DE LAY OF 68 DAYS WHICH AS PER REGISTRYS RESPONSE IS STATED TO BE NOT A REPLY T O THE SPECIFIC DEFECT OF 58 DAYS POINTED OUT IN THE NOTICE DATED 18.05.2018 WHICH AS PER RECORD HAS BEEN DULY DISPATCHED VIDE SPEED POST NO. 990/21. ACCOR DINGLY, TAKING NOTE OF THE CORRECT FACTS AS NOTICED IN THE COURT, THE ORDER PASSED BY MY SISTER SUBJECT TO THE ABOVE ADDITION IS BEING CONCURRED WITH. TH E APPEAL OF THE ASSESSEE IS DISMISSED IN VIEW OF THE ABOVE FACTS WITH THE LIBERTY TO THE ASSESSEE TO PRAY FOR A RECALL OF THE ORDER BY WAY OF A PROPER APPLICATION ADDRESSING THE SHORTCOMINGS AS PER LAW. IN TERMS OF THE PRONOUNCEMENT MADE, THE APPEAL IS DISMISSED. 4. IN THE RESULT, CONCURRING WITH THE VIEW, THE APPEAL OF T HE ASSESSEE IS DISMISSED IN LIMINE. ( ! ) (DIVA SINGH) ' #/ JUDICIAL MEMBER & % (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -0 2 , & 2 , 3456 / DR, ITAT, CHANDIGARH 6. 5 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR