Pedarla Srinivasa Murthy, Vijayawada V. THE CIT, Vijayawada

ITA 451/VIZ/2014

• Counselvise Citation: 45125314 RSA 2014
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV K SINGH
• Keywords: Right to appeal; Condonation of delay
• Section: 263

Judgement Text

ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, & SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 451/VIZAG/2014 ASSESSMENT YEAR: 2008-09 SHRI PEDARLA SRINIVASA MURTHY VIJAYAWADA THE COMMISSIONER OF INCOME TAX, VIJAYAWADA (APPELLANT) PAN NO:AHUPP 6015 B VS. (RESPONDENT) ASSESSEE BY: SHRI D.L. NARASIMHA RAO, ADVOCATE DEPARTMENT BY: SHRI RAJEEV .K. SINGH, DR DATE OF HEARING: 02/03/2015 DATE OF PRONOUNCEMENT: 04/03/2015 ORDER PER SAKTIJIT DEY. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 28.03.2013 PASSED BY THE LEARNED CIT, VIJAYAWADA UN DER SECTION 263 OF THE ACT FOR THE ASSESSMENT YEAR 2008-09. 2. THERE IS A DELAY OF 405 DAYS IN FILING OF THE AF ORESAID APPEAL. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PA RTIES ON THE ISSUE OF CONDONATION OF DELAY. UNDISPUTEDLY, THE IM PUGNED ORDER OF THE LEARNED CIT PASSED ON 20.08.2013 WAS SE RVED ON THE ASSESSEE ON 29.03.2013. HOWEVER, THE PRESENT APPE AL HAS BEEN FILED BY THE ASSESSEE ONLY ON 7.7.2014. RIGHT OF APPEAL UNDER THE INCOME TAX ACT IS A STATUTORY RIGHT CIRCUMSCR IBED BY ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 2 OF 6 THE PROVISIONS CONTAINED THEREIN. SECTION 253(1) OF THE ACT CONFERS A RIGHT ON THE ASSESSEE TO PREFER APPEAL BEFOR E THE TRIBUNAL AGAINST ANY ORDER AS MENTIONED IN SUB SECTION (1) OF SECTION 253. AS PER SECTION 253(3) EVERY APPEAL BEFOR E THE TRIBUNAL HAS TO BE FILED BEFORE SIXTY DAYS FROM THE RECEIPT OF THE APPEALABLE ORDER. HOWEVER, UNDER SUB SECTION (5) OF SECTION 253, THE TRIBUNAL IS EMPOWERED TO ADMIT AN APPEAL OR P ERMIT FILING OF AN APPEAL AFTER EXPIRY OF PRESCRIBED PERI OD, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN PRESCRIBED TIME. FROM THE AFORESAID STATUTORY PRO VISION, IT IS CLEAR, CONDONATION OF DELAY, AS ENVISAGED UNDE R SECTION 253 (5) IS NEITHER AUTOMATIC NOR AN EMPTY FORMALITY. CONDONATION OF DELAY IS ALSO NOT A MATTER OF RIGHT. THER E MUST BE BONAFIDE AND SUFFICIENT REASONS FOR CONDONING DEL AY. KEEPING IN VIEW THE AFORESAID STATUTORY PROVISION WE HA VE TO EXAMINE WHETHER THERE IS SUFFICIENT CAUSE FOR CONDONIN G DELAY. 3. THE CAUSE OF DELAY AS EXPLAINED BY THE ASSESSEE I N THE PETITION FOR CONDONATION OF DELAY IS AS UNDER: 2. IT IS TO SUBMIT THAT THE APPELLANT RETIRED FROM SERVICE AS A SCIENTIST AND HE IS AGED NOW ABOUT 72 YEARS. IT IS EARNESTLY AND HUMBLY SUBMITTED THAT HE IS IGNORANT OF THE COMPLEX PROVISIONS OF INCOME TAX LAW AND THEREBY HE WAS NOT AWARE OF THE IMPACT OF THE ADVERSE FINDINGS RECORDED BY THE LEARNED COMMISSIONER OF INCOME TAX, VIJAYAWADA IN THE AFORESAID ORDER WHICH IS APPEALED AGAINST NOW. DUE TO THE OLD AGE AILMENTS AND DUE TO SOME ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 3 OF 6 DISTURBED DOMESTIC CONSTRAINTS, THE APPELLANT COULD NOT CONSULT HIS TAX CONSULTANT IN TIME AND IN THIS PROCESS THE ISSUE OF FILING OF APPEAL MISSED THE ATTENTION OF THE APPELLANT. 3. HOWEVER, WHEN THE ISSUE IN QUESTION WAS BROUGHT TO THE NOTICE OF SOME TAX EXPERTS RECENTLY, THE APPELLANT WAS ADVISED THAT THE VARIOUS FINDINGS AS CONTAINED IN THE ORDER UNDER SECTION 263 OF THE ACT DO NOT APPEAR TO BE IN CONFORMITY WITH THE PROVISIONS OF LAW AND THERE LIES A STRONG CASE TO TAKE IT ON APPEAL BEFORE THE HON'BLE ITAT. 4. IN THE AFORESAID FACTUAL BACKGROUND, THE APPELLANT HAS CHOSEN TO FILE THE PRESENT APPEAL BEFORE THE HON'BLE ITAT AT THE ADVICE OF THE SENIOR TAX CONSULTANTS AT VIJAYAWADA AND AS THE DELAY EMERGED BY INADVERTANCE AND DUE TO THE CIRCUMSTANCES BEYOND THE CONTROL OF THE APPELLANT, AS AFORESAID, IT IS EARNESTLY AND HUMBLY PRAYED THAT THE HON'BLE ITAT MAY BE PLEASED TO CONDONE THE DELAY TO THE EX RECORDED ABOVE BY EXTENDING A LENIENT VIEW IN THE INTERESTS OF EQUITY AND JUSTICE FOR WHICH ACT OF KINDNESS, THE APPELLANT WOULD REMAIN GRATEFUL FOREVER. 4. AS COULD BE SEEN, ASSESSEE HAS ADVANCED TWO REAS ONS FOR DELAY IN FILING APPEAL. FIRST REASON IS ASSESSEE BEI NG IGNORANT OF COMPLEX PROVISIONS OF INCOME TAX ACT COULD NOT FATHO M THE IMPACT OF THE ADVERSE FINDING OF CIT IN THE REVISION O RDER. SECOND REASON SHOWN BY ASSESSEE IS,DUE TO OLD AGE AI LMENTS AND DOMESTIC PROBLEM ASSESSEE COULD NOT CONSULT HIS TAX CONSULTANT IN TIME. IN THE CONTEXT OF FACTS AND MATERIALS ON RECORD, WE HAVE TO EXAMINE HOW FAR THE REASONS SHOWN BY ASSESSEE CAN BE CONSIDERED TO BE BONAFIDE AND REASON ABLE. AS COULD BE SEEN FROM RECORD, ASSESSEE IS BEING REPRES ENTED BY A ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 4 OF 6 CHARTERED ACCOUNTANT, SRI T. NEHRU IN INCOME TAX PROC EEDINGS REGULARLY. 5. NOT ONLY SHRI T. NEHRU REPRESENTED ON BEHALF OF T HE ASSESSEE BEFORE THE ASSESSING OFFICER DURING THE ORI GINAL ASSESSMENT PROCEEDINGS, BUT HE ALSO APPEARED IN COURS E OF THE REVISION PROCEEDINGS BEFORE THE CIT. IN FACT, IN THE CONSEQUENTIAL ASSESSMENT PROCEEDINGS ALSO SHRI T. NEH RU, CHARTERED ACCOUNTANT APPEARED BEFORE THE ASSESSING OFF ICER. THEREFORE, WHEN IT IS MANIFEST FROM RECORD THAT ASSESSE E IS BEING REPRESENTED AND ASSISTED BY A PROFESSIONAL WHO IS APPEARING IN ALL THE PROCEEDINGS BEFORE THE DEPARTMENTA L AUTHORITIES AND WHO MUST BE WELL AWARE WITH THE PROVISI ONS OF I.T. ACT, IT IS HIGHLY IMPROBABLE AND INCOMPREHENSIBL E TO EVEN THINK THAT THE IMPACT/REPERCUSSIONS OF THE ORDER PASSE D BY THE CIT UNDER SECTION 263 OF THE ACT COULD HAVE BEEN LOS T EITHER ON THE ASSESSEE OR HIS COUNSEL. THE OTHER REASON SHOWN B Y THE ASSESSEE IS THAT BEING RESTRICTED BY OLD AGE AILMENTS AN D DOMESTIC PROBLEMS; HE HAS NOT BEEN ABLE TO CONSULT HIS TAX CONSULTANT WHICH RESULTED IN DELAY. THE AFORESAID EXPL ANATION IS ALSO NOT ACCEPTABLE. AS CAN BE SEEN, THE ASSESSEE I S REPRESENTED BY A PROFESSIONAL WHO APPEARS IN ALL THE PROCEEDINGS BEFORE THE DEPARTMENTAL AUTHORITIES. IT IS ALSO RELEVANT TO NOTE, THE CONSEQUENTIAL ORDER IN PURSUANCE TO THE ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 5 OF 6 DIRECTIONS OF LEARNED CIT WAS PASSED BY ASSESSING OF FICER ON 28.3.2014. AGAINST THE SAID ORDER OF ASSESSING OFFIC ER, ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A) ON 29.4.2014 I.E. EXACTLY WITHIN ONE MONTH PERIOD AS PRE SCRIBED UNDER THE STATUTE. THEREFORE, WHEN THE ASSESSEE CAN TAKE PROMPT ACTION IN FILING APPEAL BEFORE THE FIRST APPELLA TE AUTHORITY IN ACCORDANCE WITH LIMITATION PRESCRIBED IN THE STATUTE AND WHEN ASSESSEE IS BEING ASSISTED BY A PROFES SIONAL IN ALL INCOME TAX PROCEEDINGS, THERE IS NO REASON WHY HE SHOULD NOT HAVE TAKEN SUCH STEP AGAINST THE REVISION O RDER. IGNORANCE OF ASSESSEE IN RESPECT OF PROVISIONS OF IN COME TAX ACT CANNOT BE SELECTIVE. THEREFORE, THE REASONS SHOWN B Y ASSESSEE, IN OUR VIEW, ARE NEITHER SUFFICIENT NOR BON AFIDE. RATHER, IT IS TELLTALE FROM THE FACTS ON RECORD THAT THE ASS ESSEE HAD CONSCIOUSLY TAKEN A DECISION NOT TO PREFER APPEAL AGAINST THE IMPUGNED ORDER PASSED UNDER SECTION 263 OF THE AC T. IF ASSESSEE DECIDED TO ABANDON HIS RIGHT TO APPEAL, HE C ANNOT BE PERMITTED TO PURSUE THAT REMEDY AGAIN AFTER CONSIDERABL E LAPSE OF TIME, UNLESS THE REASONS ARE BONAFIDE. FINALITY OF AN ORDER CANNOT BE TINKERED WITH AT THE WHIMS OF A PARTY. 6. ON GOING THROUGH THE FACTS AND MATERIALS ON RECORD, WE ARE OF THE FIRM VIEW THAT THE EXPLANATION OFFERED BY THE ASSESSEE IS NEITHER REASONABLE NOR BONAFIDE. AFTER THE CONSEQU ENTIAL ORDER WAS PASSED, ASSESSEE AND HIS TAX CONSULTANT HAV ING ITA NO.451 OF 2014 PEDARLA SRINIVASA MURTHY VIJAYAW ADA PAGE 6 OF 6 SECOND THOUGHT THAT THE APPEAL BEFORE THE CIT (A) MAY NO T BE MAINTAINABLE AS THE ASSESSING OFFICER HAS PASSED CONSEQUENTIAL ORDER IN TERMS WITH DIRECTIONS UNDER SEC TION 263, THE ASSESSEE CAME FORWARD TO FILE THE PRESENT APPE AL. IN THE AFORESAID FACTS AND CIRCUMSTANCES AS THE ASSESSEE H AS FAILED TO SHOW SUFFICIENT CAUSE FOR CONDONING THE DELA Y, WE REFUSE TO CONDONE THE DELAY. ACCORDINGLY THE APPEAL IS DISMISSED IN LIMINE WITHOUT BEING ADMITTED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2015. SD/- SD/- (J. SUDHAKAR REDDY) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 4 TH MARCH,2015 PVV/SPS CAMP: VISAKHAPATNAM, COPY TO 1 SHRI PEDARLA SRINIVASA MURTHY, D.NO.56-06-26/1, S RI SAI NILAYA APARTMENTS, MARUTHI COLONY, VIJAYAWADA 2 THE CIT, 1 ST FLOOR, SRIKANTH COMPLEX, GOVERNORPET, VIJAYAWADA 3 ITO WARD 2(3) VIJAYAWADA 4 DEPARTMENTAL REPRESENTATIVE ITAT VISAKHAPATNAM 5 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM