Rakesh Kumar Jaiswal, Delhi V. ITO, Ward-47(1), New Delhi

ITA 4295/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2878 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SHAFIQ KHAN
• Keywords: Period of limitation; Reason to believe

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.4295/DEL./2018 ASSESSMENT YEAR 2012-2013 SHRI RAKESH KUMAR JAISWAL, A-129-130, DDA LIG FLATS, MOTIA KHAN, PAHARGANJ, NEW DELHI. PIN 110 055. PAN ACCPJ4222F VS., THE INCOME TAX OFFICER, WARD-47(1), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SHAFIQ KHAN, ADVOCATE FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 21.08.2019 DATE OF PRONOUNCEMENT : 02.09.2019 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-16, NEW DELHI, DATED 28.11.2016, FOR THE A.Y. 2012-2013. 2. THE OFFICE HAS REPORTED THAT APPEAL IS TIME BAR RED BY 477 DAYS. ACCORDING TO COLUMN NO.9 OF FORM NO.36 , ASSESSEE HAS MENTIONED 15.12.2016 IS THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST. HOWEVE R, THE APPEAL IS FILED IN THE O/O. TRIBUNAL ON 05.06.2018. THE 2 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF D ELAY SUPPORTED BY AFFIDAVIT OF ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SHRI TRILOK BANSAL, C.A. WA S AUTHORISED TO APPEAR BEFORE THE LD. CIT(A), BUT, NE ITHER INFORMED THE ASSESSEE ABOUT DEVELOPMENT OF THE CASE NOR ATTENDED THE APPELLATE PROCEEDINGS, THEREFORE, APPE AL WAS DECIDED EX-PARTE. HE HAS FURTHER SUBMITTED THAT SUBSEQUENTLY SHRI TRILOK BANSAL, C.A. WAS IMMEDIATE LY INFORMED ABOUT THE IMPUGNED ORDER WHO ASSURED TO FI LE APPEAL BEFORE THE TRIBUNAL WITHIN THE STIPULATED TI ME AND HE ALSO REGRETTED FOR HIS PAST CONDUCT AND THEREFORE, AGAIN HE WAS AUTHORISED TO FILE THE APPEAL BEFORE THE ITAT, BUT, TILL DATE HE DID NOT INFORM ANY THING AND ALSO DID NOT F ILE THE APPEAL BEFORE THE TRIBUNAL. HE HAS SUBMITTED THAT W HEN ASSESSEE RECEIVED PENALTY NOTICE, THEN HE CAME TO K NOW THAT APPEAL HAS NOT BEEN FILED BY THE COUNSEL FOR ASSESS EE. THE ASSESSEE IMMEDIATELY FILED THE APPEAL BEFORE THE TR IBUNAL. THE ASSESSEE, THEREFORE, PRAYED THAT DUE TO NEGLIGE NCE OF COUNSEL FOR ASSESSEE, ASSESSEE CANNOT SUFFER. THE A SSESSEE, 3 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. THEREFORE, PRAYED THAT DELAY IN FILING THE APPEAL M AY BE CONDONED. 3. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) AND A PPEAL HAS BEEN DECIDED EX-PARTE. THE LD. D.R. SUBMITTED T HAT ASSESSEE RECEIVED THE IMPUGNED ORDER ON 15.12.2016. DESPITE THAT NO STEPS HAVE BEEN TAKEN BY THE ASSESS EE TO FILE THE APPEAL BEFORE THE TRIBUNAL. THE LEARNED D.R. SU BMITTED THAT WHEN COUNSEL FOR ASSESSEE DID NOT APPEAR BEFOR E THE LD. CIT(A) AND APPEAL HAS BEEN DECIDED EX-PARTE, TH ERE WERE NO REASON TO BELIEVE THE SAME COUNSEL SUBSEQUENTLY FOR FILING THE APPEAL. THE LD. D.R. SUBMITTED THAT THE DELAY IS VERY HUGE IN FILING THE APPEAL WHICH CANNOT BE COND ONED. THE LD. D.R. RELIED UPON THE FOLLOWING DECISIONS : 1. MEWAT GRIT UDYOG VS. PCIT 2017-TIOL-607-ITAT-DEL . 2. M/S. KOLTE PATIL DEVELOPERS LTD., VS. DCIT 2016- TIOL- 3158-HC-MUM-IT. 3. M/S. KOLTE PATIL DEVELOPERS LTD., VS. DCIT 2017- TIOL- 185-SC-IT. 4. SHRI SUBODH PARKASH VS. JCIT [2017] 397 ITR 384 (P& H). 5. SHRI NANDKISHOR EDUCATION SOCIETY VS. CIT 2017-T IOL- 451-ITAT-PUNE. 4 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. 6. VAMA APPARELS (INDIA) (P.) LTD., VS. ACIT [2019] 261 TAXMAN 496 (BOM.). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT ASSESSEE RECEIVED THE IMPUGNED ORDE R DATED 28.11.2016 ON 15.12.2016. THE LD. CIT(A) PASSED THE EX- PARTE ORDER IN THE ABSENCE OF COUNSEL FOR ASSESSEE AND ALLOWED THE APPEAL OF ASSESSEE PARTLY. THESE FACTS, THEREFORE, CLEARLY SHOW THAT SHRI TRILOK BANSAL, C.A. DID NOT APPEAR BEFORE THE LD. CIT(A) FOR PROSECUTING THE APPEAL. T HEREFORE, THERE WAS NO REASON FOR ASSESSEE TO BELIEVE THE SAM E COUNSEL FOR FILING OF THE APPEAL BEFORE THE TRIBUNA L. THE ENTIRE FACTS HAVE BEEN MANIPULATED AND FABRICATED B Y ASSESSEE TO PUT BLAME ON SHRI TRILOK BANSAL, C.A. F OR NOT FILING THE APPEAL BEFORE THE TRIBUNAL. IT MAY BE NO TED HERE THAT ASSESSEE HAS DEPOSITED THE TRIBUNAL FEES FOR F ILING OF THE APPEAL ONLY ON 02.06.2018 AS PER THE CHALLAN FILED ON RECORD, WHICH WOULD SHOW THAT ASSESSEE NEVER ACTED BONAFIDELY TO TAKE STEPS TO FILE APPEAL WITHIN THE PERIOD OF LIMITATION BEFORE THE TRIBUNAL. 5 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. 5. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FI LING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. V. ITO [1979] 118 ITR 873, THE CALCUTTA HIGH COURT HELD TH AT A TRIBUNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICI ENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN T HE CASE OF VEDABAI ALIAS VIJAYANATABAI BABURAO PATIL V. SHANTA RAM BABURAO PATIL [2002] 253 ITR 798' (SC), WHERE IT WA S HELD THAT WHILE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIE NT CAUSE IN NOT FILING THE APPEAL WITHIN THE PERIOD PRESCRIB ED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MU ST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE A ND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OB SERVED THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDI CE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN THE LATTER CASE NO SUCH CONSI DERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROA CH. NOW IN THE PRESENT CASE DELAY IS NOT OF A FEW DAYS BUT OF 477 DAYS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLANA TION/ 6 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. REASON FOR THE DELAY. IN THE CASE OF CIT V. RAM MOH AN KABRA [2002] 257 ITR 773, THE HON'BLE PUNJAB & HARYANA HI GH COURT HAS HELD OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER T O CONDONE THE DELAY AS WELL, SUCH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PRO VISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN TH IS CASE DELAY FOR FILING THE APPEAL LATE FOR ONLY A FEW DAY S WAS NOT CONDONED. IN THE CASE OF ASSTT. CIT V. TAGGAS INDUS TRIES DEVELOPMENT LTD. [2002] 80 ITD 21(CAL.), TRIBUNAL, CALCUTTA BENCH, CALCUTTA, DID NOT CONDONE THE DELAY FOR FILI NG THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DU E TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGME NTS, I HOLD THAT ASSESSEE FAILED TO EXPLAIN THAT DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. IN VIEW OF THE ABOVE, I DO NOT FIND ANY REASON TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE APPEAL OF ASSESSEE IS ACCO RDINGLY DISMISSED BEING TIME BARRED. 7 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI. 6. IN THE RESULT, APPEAL OF ASSESSEE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 2 ND SEPTEMBER, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE //BY ORDER// ASST. REGISTRAR : ITAT : DELHI BENCHES : DELHI. DATE OF DICTATION 21.08.2019 DATE ON WHICH THE TYPED DRAFT ORDER IS PLACED BEFOR E THE DICTATION MEMBER 27.08.2019 DATE ON WHICH THE APPROVAL DRAFT COMES TO THE SR. P S 02.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATION MEMBER FOR PRONOUNCEMENT 02.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. 02.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 02.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 03. 09.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER. 8 ITA.NO.4295/DEL./2018 SHRI RAKESH KUMAR JAISWAL, DELHI.