Blue Ocean Sea Transport Ltd., GANDHIDHAM V. The Income Tax Officer, Ward-1, GANDHIDHAM

ITA 427/RJT/2011

• Counselvise Citation: 42724914 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 03-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: WRITTEN SUBMISSIONS FILED
• Keywords: Rectification of order; Period of limitation; Condonation of delay
• Section: 143(3); 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT BEFORE SHRI T K SHARMA, JM AND SHRI D K SRIVASTAVA, AM ITA NO. 427 / RJ T/20 11 ASSESSMENT YEAR : 200 5 - 0 6 BLUE OCEAN SEA TRANSPORT LTD. MANALI CHAMBER, SECTOR - 1A GANDHDHAM PAN : AACCB 3183 E V. ITO, WARD - 1, GANDHIDHAM DATE OF HEARING : 02 .0 8 .2013 DATE OF PRONOUNCEMENT : 13 . 0 9 .2013 ASSESSEE BY : WRITTEN SUBMISSIONS FILED REVENUE BY : SHRI VILAS V SHINDE, DR ORDER D. K. SRIVASTAVA : THE APPEAL FILED BY THE ASSESS EE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - II , RAJKOT ON 05.09.201 , ON THE FOLLOWING GROUNDS: - 1. THE ORDER U/S 154 IS BAD IN LAW. 2. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON FACTS IN REJECTING APPELLANTS PETITION U/S 154 ON THE GROUND THAT THERE WAS NO APPARENT MISTAKE IN THE ASSESSMENT ORDER. THE LD CIT(A) HAS ERRED IN DISMISSING THE APPELLANTS APPEAL REJECTING THE PRAYER FOR CONDONATION OF DELAY WITHOUT GOING INTO THE MERITS OF THE CASE. 2. THE ASSESSEE IS A COMPANY LIMITED BY SHARES . IT IS ENGAGED IN THE BUSINESS OF SEA TRANSPORT. IT FILED ITS RETURN OF INCOME FOR THE A SSESSMENT Y EAR UNDER APPEAL ON 06.03.2006 RETURNING TOTAL INCOME AT RS.4,43,880/ - . IT WAS THE CASE OF THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT I T HAD OPTED FOR TONNAGE SCHEME U/S 115VP VIDE ITS APPLICATION DATED 27.12.2004. THE SAID APPLICATION WAS REJECTED BY THE ASSESSING OFFICER ON THE GROUND THAT IT WAS RECEIVED ON 04.01.2005 WHEREAS THE TIME LIMIT FOR MAKING THE SAID APPLICATION WAS AVAILABLE UP - TO DECEMBER 2004. AFTER REJECTING TONNAGE SCHEME AS OPTED BY THE ASSESSEE, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143(3) OF THE INCOME - TAX ACT ON 19.12.2007. THE ISSUE OF TONNAGE SCHEME WAS SUBJECT MATTER OF APPEAL FIRSTLY BEFORE THE LD CIT (A) AND THEREAFTER BEFORE THIS TRIBUNAL. BY ITS ORDER DATED 22.05.2012 THIS TRIBUNAL HAS DIRECTED THE REVENUE AUTHORITIES TO CONSIDER THE REQUEST OF THE ASSESSEE FOR TONNAGE SCHEME U/S 115VP ON MERIT S . IT WAS ALSO H E LD THAT THE PROVISIONS OF 2 427 - RJT - 2011 BLUE OCEAN SEA TRANSPORT LTD SECTION 115VP WERE DIRECT ORY IN NATURE AND THEREFORE DELAY OF FOUR DAYS IN FILING THE APPLICATION U/S 115VP WAS NOT FATAL. THE AFORESAID ORDER PASSED BY THIS TRIBUNAL HAS SINCE BEEN CONFIRMED BY THE HONBLE HIGH COURT. 3. AFTER THE ASSESSMENT WAS COMPLETED BY THE ASSE SSING OFFICER U/S 143(3) BY WHICH THE BENEFIT OF TONNAGE SCHEME WAS NOT EXTENDED TO THE ASSESSEE, THE ASSESSEE FIL E D AN APPLICATION U/S 154 ON 29.01.2008 IN WHICH HE REQUESTED THE AO THAT INCOME SHOULD BE COMPUTED UNDER THE NORMAL PROVISIONS OF THE ACT AS ITS OPTION FOR TONNAGE SCHEME HAS BEEN REJECTED BY THE ASSESSING OFFICER. BY HIS ORDER DATED 11.01.2008, THE ASSESSING OFFICER REJECTED THE APPLICATION FOR RECTIFICATION FILED BY THE ASSESSEE U/S 154 ON THE GROUND THAT THE AFORESAID APPLICATION DID NOT DIS CLOSE ANY MISTAKE APPARENT FROM THE RECORD. THERE WAS A DELAY OF 431 DAYS IN FILING APPEAL BEFORE THE LD. CIT(A) AGAINST THE AFORESAID ORDER PASSED BY THE ASSESSING OFFICER U/S 154 OF THE INCOME - TAX ACT. THE LD CIT(A) THEREFORE DISMISSED THE APPEAL FILED B Y THE ASSESSEE WITH THE FOLLOWING OBSERVATIONS: - 4. I HAVE CAREFULLY CONSIDERED THE RECTIFICATION ORDER AND SUBMISSION OF THE AR OF THE APPELLANT. THE AO HAS REJECTED THE CLAIM ON SOLE GROUND THAT THERE IS NO MISTAKE APPARENT FROM RECORD WHICH REQUIRED T O BE RECTIFIED , HENCE HE HAS DECLINED TO TAKE ANY SUCH ACTION ON HIS PART. HE HAS FURTHER REQUESTED THE APPELLANT TO TAKE NOTE OF THE SAME AND DISPOSED OFF THE RECTIFICATION APPLICATION FILED BY THE APPELLANT. THE APPELLANTS CONTENTION THAT THE DELAY IS I NADVERTENT AND HAPPENED DUE TO MISCONCEPTION THAT IT WOULD GET RELIEF IN THE APPEAL FILED AGAINST THE ORDER PASSED U/S 143(3) IS NOT ACCEPTABLE AS HOW IT CAN BEFOREHAND HAVE NOTION OF GETTING RELIEF? FURTHER, THE APPELLANT HAD NOT CITED ANY REASON FOR NOT FILING ANY APPEAL AGAINST THE REJECTION ORDER OF THE A.O. FOR THE PERIOD OF MORE THAN ONE YEAR. FROM THE FACTS OF THE APPELLANT S CASE, IT APPEARS THAT THE APPELLANT IS A HABITUAL DEFAULTER IN SUCH MATTERS, AS IT HAS NOT FILED THE APPLICATION FOR TONNAGE T AX SCHEME AS PER RULES IN TIME AS WELL. SUBSEQUENTLY, IT HAS AGAIN FAILED IN FILING APPEAL WITHIN THE TIME PRESCRIBED. NO CONVINCING REASON FOR 3 427 - RJT - 2011 BLUE OCEAN SEA TRANSPORT LTD SUCH OMISSIONS AND LAPSES HAS BEEN GIVEN BY THE APPELLANT. THE DELAY OF 431 DAYS IN FILING THIS APPEAL IS DENIED TO BE CONDONED. IN THIS REGARD, RELIANCE CAN BE PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RANKAK & ORS VS. REWA COALFIELDS LTD. AIR 1962 361 AND JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. (ITAT CHENNAI) (3 RD MEMBER) (104 ITD 149). I N VIEW OF THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND THE LEGAL POSITION IN THE SAID JUDICIAL DECISIONS, THIS APPEAL IS DISMISSED. 4. AGGRIEVED BY THE ORDER PASSED BY THE LD . CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 5. AT THE TIME OF HEARING, THE LD . AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FILED A LETTER DATED 01.08.2013 BEFORE THIS TRIBUNAL BY WHICH HE REQUESTED THAT THE APPEAL FILED BY THE ASSESSEE SHOULD BE TREATED AS INFRUCTUOUS. THE AFORESAID LETTER FILED BY HIM RE ADS AS UNDER: - IN THIS CONNECTION, WE HAVE TO SUBMIT THAT THIS IS AN APPEAL AGAINST ORDER OF CIT(A) DISMISSING OUR APPEAL FILED AGAINST THE REJECTION OF ORDER U/S 154 OF THE ACT BY A.O. WE UNDERSTAND THAT THE PRINCIPAL APPEAL IN RESPECT OF THE ISSUE IN VOLVED IN THE PRESENT APPEAL WAS DISPOSED OFF BY THE HONBLE BENCH ON 22/5/2012 VIDE CONSOLIDATED ORDER PASSED IN OUR CLIENTS CASE FOR A.Y. 2005 - 06 TO 2007 - 08 IN ITA NO.396/R/09 FOR A.Y. 2005 - 06. SINCE, THE RELIEF SOUGHT FOR IN THE PRESENT APPEAL HAS BEEN GRANTED BY THE HONBLE ITAT IN THEIR CONSOLIDATED ORDER BY RESTORING THE ISSUE TO THE FILE OF A.O., WHICH HAS ALSO BEEN NOW APPROVED BY HONBLE GUJARAT HIGH COURT IN TAX APPEAL NO.714 TO 716 OF 2012 FILED BY DEPARTMENT, THE PRESENT APPEAL U/S 154 OF THE A CT BECOMES ACADEMIC AND MAY BE TREATED AS INFRUCTUOUS WITH A LIBERTY TO REVIVE THE PROCEEDINGS IF THE ORDER OF HONBLE HIGH COURT IS REVERSED BY HIGHER UP AUTHORITIES. 6. IN REPLY, LD DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER PASSED BY THE LD . CIT( A). 4 427 - RJT - 2011 BLUE OCEAN SEA TRANSPORT LTD 7. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THEIR SUBMISSIONS. THE PRESENT APPEAL IS LIABLE TO BE DISMISSED FOR T HREE REASONS , EACH OF WHICH IS INDEPENDENT OF OTHER . ONE, THE APPLICATION FILED BY THE ASSESSEE U/S 154 BEFORE THE ASSESSI NG OFFICER DOES NOT DISCLOSE ANY MISTAKE APPARENT FROM THE RECORD AND IS THEREFORE NOT AMENABLE TO RECTIFICATION U/S 154 . T HE ASSESSING OFFICER AND LD . CIT(A) HAVE RIGHTLY HELD THAT THE SAID APPLICATION WAS NOT MAINTAINABLE U/S 154. TWO , NO MATERIAL HAS BE EN PLACED BEFORE THIS TRIBUNAL ON THE BASIS OF WHICH IT CAN BE CONCLUDED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CASE IN NOT FILING THE APPEAL BEFORE THE CIT(A) BEFORE THE EXPIRY OF PERIOD OF LIMITATION. THREE, THE DECISION OF THIS TRIBUNAL IN RESTOR ING THE MATTER TO THE FILE OF THE REVENUE AUTHORITIES HAS ALREADY BEEN CONFIRMED BY THE HONBLE HIGH COURT. IN VIEW OF THE AFORESAID, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 13 . 0 9 . 201 3 SD/ - SD/ - (T. K. SHARMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT: 13 . 0 9 .2013 B T COPY OF ORDER FORWARDED TO: - 1 . APPELLANT BLUE OCEAN SEA TRANSPORT LTD., MANALI CHAMBER, SECTOR - 1A GANDHDHAM 2 . RESPONDENT - ITO, WARD - 1, GANDHIDHAM 3 . CONCE RNED CIT - I , RAJKOT 4 . CIT (A) - I I , RAJKOT 5 . DR, ITAT, RAJKOT 6 . GUARD FILE. BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT