ACIT, Ghaziabad V. Pradeep Kumar Jain, Ghaziabad

ITA 4224/DEL/2011

• Counselvise Citation: 422420114 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-05-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 21-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M B REDDY
• Assessee Lawyers: B N GOSWAMI
• Keywords: Principle of natural justice; Cost of acquisition; Reasonable cause; Fair market value; Right to appeal; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER ITA NO.4224/DEL/2011 ASSESSMENT YEAR : 2005-06 ACIT, CIRCLE-2, GHAZIABAD. VS. PRADEEP KUMAR JAIN, H. NO.1, PLOT NO.178, SHYAM PARK MAIN, SHAHIBABAD, GHAZIABAD. PAN : AEIPJ2905D ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI B.N. GOSWAMI, ADVOCATE DEPARTMENT BY : S HRI M.B. REDDY, CIT, DR ORDER PER A.D. JAIN, JUDICIAL MEMBER: THIS IS DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 2005-06 A GAINST THE ORDER DATED 20.11.2009, PASSED BY THE LD. CIT(A), MEE RUT, TAKING THE FOLLOWING GROUNDS:- 1. THAT THE LD. CIT (A) HAS WRONGLY DELETED THE ADDITI ON MADE BY THE AO ON ACCOUNT OF INDEXED COST OF ACQUISITION OF THE PROPERTY SITUATED AT 2, UNDER HILL ROAD, CIVIL LINES, NEW DELHI AMOUNTING TO RS.1,26,18,872/- BY ADOPTING THE RATE OF PROPERTY AS O N 01.04.1981 AT RS.2400/- PER SQ. YARD IN PLACE OF RS.533/- PER SQ. YARD TAKEN BY THE AO. 2. THAT THE CIT (A) HAS WRONGLY ADOPTED THE CIRCLE RATE OF COMMERCIAL PROPERTY AT RS.2400/- PER SQ. YARD ON THE B ASIS OF ASSESSEES COMPUTATION FOR THE CALCULATION OF INDEXED COST OF ACQUISITION. BECAUSE THE AO HAS TAKEN THE FAIR MARKET VALUE AT THE RATE ITA NO.4224/DEL/2011 2 OF RS.533/- PER SQ. YARD. BEING RESIDENTIAL ONE ON TH E BASIS OF ADJOINING PROPERTY SOLD BY THE ANOTHER ASSESSEE SMT. VEER BALA AG ARWAL IN WHICH THE RATE OF PROPERTY FOR COMPUTATION OF INDEXED COST WAS TAKEN AT RS.533/- PER SQ. YARD AS ON 01.04.1981. 2. THERE IS A DELAY OF 599 DAYS OF LIMITATION, IN FIL ING THE APPEAL. IN THE APPLICATION FILED FOR CONDONATION OF DELAY, THE DEP ARTMENT HAS CONTENDED THAT THE DELAY OCCURRED DUE TO THE FACT THAT THE JU RISDICTION ORDER OVER THE CASE WAS PASSED BY THE LD. CIT (CENTRAL), KANPUR TRANSF ERRING THE CASE FROM ACIT, CENTRAL CIRCLE, MEERUT TO ACIT, CIRCLE-2, GHA ZIABAD ON 19.5.2010 AND THE CASE RECORD WAS TRANSFERRED IN JANUARY, 2011; THA T WHILE GOING THROUGH THE CASE RECORDS, THE ACIT, CIRCLE-2, GHAZIABAD NOTIC ED THAT APPEAL BEFORE HONBLE ITAT WAS TO BE FILED IN THIS CASE BY 30.1.2010 ; THAT THE SAME WAS CONVEYED TO COMMISSIONER OF INCOME TAX, GHAZIABAD OFF ICE; THAT HOWEVER, FROM THE PERUSAL OF THE RECORDS IT WAS NOT CLEAR WHETH ER ANY APPEAL WAS FILED IN THIS CASE OR NOT; THAT ACCORDINGLY, A LETTER WAS WR ITTEN TO THE CIT (CENTRAL), KANPUR TO ENQUIRE WHETHER SECOND APPEAL WAS AUTHORIZE D IN THIS CASE OR NOT; THAT VIDE HIS LETTER DATED 03.08.2011, IT HAS BEEN CO NFIRMED THAT NO SECOND APPEAL WAS AUTHORIZED IN THIS CASE; THAT DUE TO CHANGE OF JURISDICTION FROM ACIT, CIRCLE-2, GHAZIABAD TO ACIT, CENTRAL CIRCLE, MEERUT AND FURTHER FROM ACIT, CENTRAL CIRCLE, MEERUT TO ACIT, CIRCLE-2, GHA ZIABAD, THE APPEAL COULD NOT BE FILED WITHIN TIME; THAT THE OMISSION WAS UNINTE NTIONAL AND BEYOND THE IMMEDIATE KNOWLEDGE OF THE AO; AND THAT HOWEVER, IM MEDIATE ACTION WAS TAKEN WHEN THE LAPSE CAME TO NOTICE. 3. THUS, THE REASON FOR THE DELAY HAS BEEN STATED TO BE CHANGE OF JURISDICTION OF THE CASE FROM ACIT, CIRCLE-2, GHAZIAB AD TO ACIT, CENTRAL CIRCLE, MEERUT AND FURTHER FROM ACIT, CENTRAL CIRCLE, MEERU T TO ACIT, CIRCLE-2, GHAZIABAD. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS PLA CED ON RECORD ORDER DATED 21.12.12, PASSED BY THE B BENCH, DELHI TRIBUNAL IN A CONNECTED MATTER IN DCIT CIR.1, GHAZIABAD VS. DEEPAK KUMAR JA IN, GHAZIABAD IN ITA NO.5222/D/2012 FOR AY 05-06 (THE SAME YEAR AS THE ONE PRESENTLY UNDER ITA NO.4224/DEL/2011 3 CONSIDERATION). IN THE SAID ORDER, UNDER CIRCUMSTANCES EXACTLY SIMILAR TO THOSE IN THE PRESENT CASE, THE APPEAL FILED BY THE DEP ARTMENT WAS DISMISSED FOR DELAY. 5. THE LD. DR, HOWEVER, HAS STRONGLY REQUESTED FOR CON DONATION OF DELAY, STATING THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY I N FILING THE APPEAL, DUE TO THE TRANSFER OF THE CASE, AS ABOVE AND DUE TO THE C ONSEQUENTIAL TRANSFER OF THE CASE RECORD. 6. HAVING CONSIDERED THE RIVAL CONTENTIONS, WE FIND T HAT UNDER SIMILAR CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY T HE TRIBUNAL IN THE CASE OF DEEPAK KUMAR JAIN (SUPRA), A CONNECTED ASSESSEE. WHILE DOING SO, THE TRIBUNAL HAS OBSERVED AS FOLLOWS:- 5. AFTER CONSIDERING FACTS, MATERIAL ON RECORD AND VARIOUS CASE LAW AS CITED BY RIVAL SIDES, WE FIND IT TO BE SETTLED POSITIO N OF LAW THAT RIGHT OF APPEAL IS NEITHER AN ABSOLUTE NOR AN INGREDIENT OF NATURAL JUSTICE, THE PRINCIPLE OF WHICH MUST BE FOLLOWED IN JUDICIAL A ND QUASI-JUDICIAL ADJUDICATION. THE RIGHT TO APPEAL IS A STATUTORY RIGHT AND IT CAN BE CIRCUMSCRIBED BY THE CONDITION IN HE GRANT. IF A STATU TE GIVES RIGHT TO APPEAL UPON CERTAIN CONDITIONS IT IS UPON FULFILLMENT O F THOSE CONDITIONS THAT THE RIGHT BECOMES VESTED IN AND EXERCISA BLE BY THE APPELLANT. AS PER S.253 (3), APPEAL IS REQUIRED TO BE FILED BY THE ASSESSEE OR THE DEPARTMENT WITHIN SIXTY DAYS FROM THE DA TE OF COMMUNICATION OF THE ORDER TO BE APPEALED AGAINST ON TH E ASSESSEE OR THE CIT, AS THE CASE MAY BE AND UNDER S.253(5), TRIBU NAL MAY ADMIT AN APPEAL AFTER EXPIRY OF RELEVANT PERIOD REFERRED TO IN S.253(3), IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENT ING THE APPEAL WITHIN THAT PERIOD. NO DOUBT, IT IS SPECIFICALLY PROVIDE D THAT APPEAL CAN BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE ASSESSEE SATISFIES THE TRIBUNAL THAT HE/SHE HAD SUFFICIENT CAUSE FOR NOT PREFE RRING THE APPEAL WITHIN PERIOD AS PRESCRIBED IN THIS BEHALF. WHERE THE TIME FOR PREFERRING AN APPEAL HAS EXPIRED, A VALUABLE RIGHT I S SECURED TO THE RESPONDENT OR THE OPPOSITE PARTY AND SUCH RIGHT OUGHT NO T TO BE LIGHTLY DISTURBED [AS HELD BY HONBLE SUPREME COURT IN THE CAS E OF RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361, 363]. THE APPE AL PREFERRED OR MADE AFTER THE EXPIRY OF THE PRESCRIBED PERIOD CAN BE ADMITTED ONLY IF THE ASSESSEE SATISFIED THE TRIBUNAL THAT THERE WAS SUFFIC IENT CAUSE FOR NOT PREFERRING THE APPEAL WITHIN SUCH PERIOD. THE TRIB UNAL HAS POWER TO CONDONE THE DELAY ONLY WHEN SUFFICIENT CAUSE IS SHO WN WITH A VIEW TO ADVANCE SUBSTANTIAL JUSTICE AND EVEN AFTER SUFFICIENT CAUSE HAS BEEN SHOWN THE PARTY IS NOT ENTITLED TO CONDONATION OF DEL AY, AS A MATTER OF RIGHT. IF SUFFICIENT CAUSE IS SHOWN THEN TRIBU NAL HAS TO ENQUIRE, WHETHER IN ITS DISCRETION, IT SHOULD CONDONE THE DELAY, ITA NO.4224/DEL/2011 4 CONSIDERATION OF BONA FIDES OR DUE DILIGENCE IS ALWA YS MATERIAL. SINCE ALL OTHER CIRCUMSTANCES ARE ALSO TO BE TAKEN INTO ACCOUN T BEFORE APPLYING THE PROVISIONS OF LAW IN THIS REGARD AND IN THIS CASE THE DEPARTMENT DID NOT FILE THE APPEALS WITHIN DUE TIME IN TH E CASE AND CAUSE SHOWN BY IT DOES NOT CONCLUSIVELY SHOW THAT SAME IS REASONABLE OR SUFFICIENT. NO DOUBT, AT MORE THAN ONE OCCASION HON BLE SUPREME COURT HAS SPECIFICALLY HELD THAT STATE CANNOT BE PUT ON THE SAME FOOTING AS AN INDIVIDUAL BECAUSE INDIVIDUAL WOULD BE QUICK IN TAKING THE DECISION WHEREAS GOVERNMENT MACHINERY, THERE IS IM PERSONAL MECHANISM THROUGH ITS OFFICERS OR SERVANTS BUT POSITION HERE IS NOT THE SAME AS IT WAS NOT A CASE OF SIMILAR NATURE AND NO SUC H PLEA HAS BEEN RAISED NOR ANY REASON OR MATERIAL IN THIS DIRECTION H AS BEEN PLEADED OR FILED AND DEPARTMENT HAS JUST SOUGHT CONDONATION OF DE LAY, WHICH, IN OUR CONSIDERED VIEW, CANNOT BE HELD TO BE A SUFFICIEN T OR REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN STIPULATED TIME IN THE LIGHT OF FACTS AND CIRCUMSTANCES EXPLAINED AND DISCUSSED ABOVE . 6. AS SUCH, CONSIDERING THE TOTALITY OF FACTS AND CIRCUM STANCES, PLEAS RAISED AND DISCUSSION HELD IN THE LIGHT OF DECI DED CASES, AS RELIED UPON, WE DECLINE TO CONDONE THE DELAY CAUSED IN FILIN G OF THE APPEAL, REFUSE TO ADMIT THE SAME FOR HEARING AND DISMISS IT IN LIMINE. AS APPEAL IS NOT BEING ADMITTED SO IT IS NOT TO BE CONSIDER ED ON MERITS. 7. THE FACTS CONCERNING THE DELAY IN THE PRESENT CASE BEING THE SAME, AS THOSE IN DEEPAK KUMAR JAIN (SUPRA) (THE REASON FOR D ELAY IS THE SAME IN THAT CASE), FOLLOWING THE SAID ORDER, FINDING NO SUFFICIEN T CAUSE FOR CONDONING THE DELAY, THE APPLICATION FILED BY THE DEPARTMENT FOR CONDONATION OF DELAY IS REJECTED. 8. THE APPLICATION FOR CONDONATION OF DELAY HAVING BEEN REJECTED AS ABOVE, GROUNDS OF APPEAL RAISED NO LONGER SURVIVE FOR ADJUDICATION, AS THE APPEAL ITSELF STANDS DISMISSED FOR LIMITATION. 9. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISM ISSED FOR LIMITATION. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.05.201 4. SD/- SD/- [ J.S. REDDY ] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 22 ND MAY, 2014. ITA NO.4224/DEL/2011 5 DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.