V.M. Besan & Chana Dal Mill, Dist.Anand V. The Income tax Officer,Ward-3(4), Petlad

ITA 4171/AHD/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9213 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-09-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 31-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Keywords: Corroborative evidences; Onus to prove; Condonation of delay

Judgement Text

IN THE INCOME_TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI H.L.KARWA AND SHRI A.N.PAHUJA ITA NO.4171/AHD/2008 (ASSESSMENT YEAR : 2005-06 ) V.M.BESAN & CHANA DAL MILLS AT & PO BHETASI ANKLAV. VS. I.T.O. WARD 3(4), PETLAD. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI C.K.MISHRA, D.R. ( (( ( )/ )/)/ )/ ORDER PER KARWA, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF CIT(A)-I, BARODA DATED 01.8.2008 RELATING TO ASSESSMEN T YEAR 2005-06. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING G ROUNDS: 1. THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER AND PART LY CONFIRMED BY THE FIRST APPEAL AUTHORITY IS BAD IN LAW AND DESERVE TO BE UNCALLED FOR. 2. THE ASSESSING OFFICER AS WELL AS FIRST APPELLANT AUTH ORITY HAS ERRED IN LAW & ON FACTS IN CONFORMING ADDITION OF RS.7,00,000/- U/S 68 OF I. T. ACT, THE SAME DESERVES TO BE DELETED. 3. THE ASSESSING OFFICER AS WELL AS FIRST APPELLANT AU THORITY HAS ERRED IN LAW & ON FACTS IN CONFORMING ADDITION OF RS.7,66,300/- U/S 68 OF I. T. ACT. THE SAME DESERVES TO BE DELETED. 4. THE APPELLANT, CRAVES TO RESERVE ITS RIGHT TO ADD , ALTER, AMEND, OR DELETE ANY GROUND OF APPEAL DURING THE COU RSE OF HEARING. 2 3. THE ABOVE APPEAL WAS FIXED FOR HEARING ON 01.9.20 09. EARLIER, THE APPEAL WAS FIXED FOR HEARING ON 21.5.2009. ON THE SAI D DATE, THE ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT OF HEARING , WHICH WAS ALLOWED AND HEARING OF THE APPEAL WAS FIXED ON 01.9. 2009. NONE APPEARED FOR THE ASSESSEE ON THE DATE OF HEARING. THE ASSESSEE HAS ALSO NOT MOVED ANY APPLICATION FOR ADJOURNMENT OF HEARING . IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE THE MATTER. UNDER THE CIRCUMSTANCES, WE ARE CONSTRAINED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERITS, OF COURSE, AFTER HEARING THE LD. D.R. 4. WE HAVE HEARD THE LD. D.R. IT IS OBSERVED THAT THE APPEAL FILED BY THE ASSESSEE IS BARRED BY 79 DAYS. THE ASSESSEE HAS FILED AN A PPLICATION FOR CONDONATION OF DELAY WHICH READS AS UNDER: RESPECTED SIR, WITH REFERENCE TO THE ABOVE THERE IS A DELAY IN APPEA L FILLING BY ABOUT 70 DAYS BECAUSE OF THE FOLLOWING REASONS. (1) THE APPELLANT IS CARRYING ON ITS BUSINESS IN REMOT E AREA WHERE VERY FEW PEOPLE ARE KNOWING ENGLISH. (2) THE ORDER RECEIVED WAS SEND & KEPT BY OUR CONSULTAN T AT BORSAD, BUT AS OUR RELATION WITH HIM WAS NOT GOOD AS BE FORE SO THE APPEAL WORK WAS KEPT PENDING. (3) AS SOON AS IN DECEMBER WHEN WE CAME TO KNOW FROM ON E OF THE CHARTERED ACCOUNTANT THAT THE APPEAL TO HONORABLE TRIBUNAL HAS TO PREFERRED WITHIN 60 DAYS OF THE RECEIP T OF FIRST APPELLANT AUTHORITY WE IMMEDIATELY DECIDED TO CHANGE THE AUTHORISED REPRESENTATIVE AND TOOK OVER ALL THE RELAT ED PAPERS FROM OUR OLD CONSULTANT AND HANDED TO NEW CONSULTANT WH O FILLED THE APPEAL AT THE EARLIEST POSSIBLE TIME. (4) THUS THE DELAY WAS NOT FROM OUR SIDE BUT ON ACCOUN T OF GUIDANCE FROM OUR CONSULTANT. (5) CONSIDERING THE ABOVE FACTS THE DELAY SHOULD BE CO NDONED BY 3 ADMITTING OUR APPEAL. THANKING YOU, SD/- PARNTER VM BESAND & CHANA DAL MILL 5. AFTER PERUSING THE ABOVE APPLICATION, WE ARE OF TH E VIEW THAT THE ASSESSEE HAS MISERABLY FAILED TO EXPLAIN THE DELAY OF 79 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE INSTANT APPLICATI ON, THE ASSESSEE HAS NOT DISCLOSED THE NAME OF THEIR INCOME-TAX CONSULTANT WH O HAD ALLEGEDLY RECEIVED THE IMPUGNED ORDER. FURTHER, THE ASSESSEE HAS AL SO NOT DISCLOSED THE NAME OF CHARTERED ACCOUNTANT WHO ADVISED THEM TO F ILE THE APPEAL WITHIN 60 DAYS OF RECEIPT OF THE ORDER BEFORE THE TRI BUNAL. IN FACT, THE ASSESSEE HAS NOT ENCLOSED THE AFFIDAVITS OF THEIR TAX CONSUL TANT AND ALSO THAT OF THE CHARTERED ACCOUNTANT WHO ADVISED THEM TO F ILE THE APPEAL BEFORE THE TRIBUNAL. IN THE INSTANT CASE, THE ASSESSEE HAS NOT PLACED THE RELEVANT FACTS THAT THERE WAS SUFFICIENT CAUSE FOR DELAY I N FILING THE APPEAL. FURTHERMORE, THE ASSESSEE HAS ALSO NOT FILED ANY SUPPORTI NG EVIDENCE. IN THE ABSENCE OF SUCH SUPPORTING EVIDENCE, NO PRESUMPTION CA N BE DRAWN THAT THERE MUST BE SUFFICIENT CAUSE FOR NOT FILING THE A PPEAL WITHIN THE PRESCRIBED TIME. IT IS WELL SETTLED LAW THAT WHILE DECID ING PRAYER FOR CONDONATION OF DELAY, THE COURT/TRIBUNAL CANNOT IGNORE OR GIVE A GO BYE TO THE SPECIFIC PRINCIPLE THAT THE BURDEN TO PROVE THE EXI STENCE OF SUFFICIENT CAUSE IS ALWAYS UPON THE APPLICANT/APPELLANT AND THERE I S NO PRESUMPTION THAT THE DELAY OCCASIONED IN FILING OF THE APPEAL IS AL WAYS BONA FIDE AND THE COURT/TRIBUNAL MUST IN ALL CASES CONDONE THE DELAY A S A MATTER OF COURSE. THUS, WHERE THE APPLICANT/APPELLANT HAS FAILED T O SHOW SUFFICIENT CAUSE FOR CONDONATION OF DELAY, THE APPLICATION FOR COND ONATION OF DELAY IS LIABLE TO BE REJECTED. THUS, CONSIDERING THE ENTIRE FACT S AND CIRCUMSTANCES OF THE PRESENT CASE, AS WELL AS SETTLED LEGAL POSITION, W E REFUSE TO CONDONE THE DELAY AND DISMISS THE APPEAL ON THIS SCORE ALO NE. SINCE WE 4 HAVE REFUSED TO CONDONE THE DELAY AND DISMISSED THE APP EAL, THEREFORE, WE DO NOT THINK IT NECESSARY TO DECIDE THE GROUNDS ON ME RITS. 6. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 01.9. 2009. SD/- (A.N.PAHUJA) ACCOUNTANT MEMBER SD/- (H.L.KARWA) JUDICIAL MEMBER AHMEDABAD, DATED: 01.9.2009 PSP* COPY TO : (1) THE ASSESSEE (2) THE ASSESSING OFFICER (3) THE CIT(A) CONCERNED, (4) THE CIT, CONCERNED, (5) THE DR, ITAT, AHMEDABAD, (6) GUARD FILE. BY ORDER ASSTT. REGISTRAR / D EPUTY REGISTRAR ITAT, AHMEDABAD BENCHES AHMEDABAD.