DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Trade Apartment Ltd., Kolkata

ITA 46/KOL/2011

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0539 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 08-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 11-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A P ROY
• Assessee Lawyers: D S DAMLE
• Keywords: Period of limitation; Condonation of delay

Judgement Text

I.T.A. NO . 46 / KOL ./20 1 1 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 46 / KOL / 20 1 1 ASSESSMENT YEAR : 200 7 - 20 0 8 DEPUTY COMMISSIONER OF INCOME TAX, .... ........ .... .... . APPELLANT CIRCLE - 4 , KOLKATA, P - 7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA - 700 0 69 - VS. - M/S. TRADE APARTMENT LTD., ... ..... ... ...................... . RESPONDE NT 3 1 , N.S. ROAD, DUNCAN HOUSE KOLKATA - 700 001 [PAN : A A BC T 2 117 P ] APPEARANCES BY: SHRI A .P. ROY , JCIT, SR. D.R., FOR THE DEPARTMENT SHRI D.S. DAMLE , FCA , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JU LY 0 6 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 08 , 201 5 O R D E R PER P.K. BANSAL : THIS A PPEAL HA S BEEN FILED BY THE R EVENU E AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - I V , KOLKATA D ATED 20 . 09 .20 10 FOR THE ASSESSMENT YEAR 200 7 - 0 8 . 2. THE APPEAL HAS BEEN FILED LATE BY 15 DAYS. THE R EVENUE HAS MADE AN APPLICATION FOR CONDONATION OF THE DELAY. AS PER THE RECOR D, THE R EVENUE HAS RECEIVED THE ORDER OF THE CIT(APPEALS) ON 2 8 . 10 .2010 , WHILE THE APPEAL WAS FILED BEFORE THE TRIBUNAL ON 1 1 . 0 1 .201 1 . IN THE AFFIDAVIT FILED FOR THE CONDONATION OF DELAY, THE R EVENUE HAS GIVEN THE FOLLOWING REASON S : - THE LAST DATE FOR FIL ING OF APPEAL EXPIRED ON 27.12.2010. THAT DIRECTION FROM CIT, KOL - II, KOLKATA FOR FILING APPEAL WAS RECEIVED BY THIS OFFICE ON 10.1.2011. BUT IT COULD NOT BE FILED FOR FOLLOWING REASONS: - DATE REASONS 27 .1 2 .2010 TO 0 1 . 1 .201 1 DIRECTION FROM CIT OFFICE I.T.A. NO . 46 / KOL ./20 1 1 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 2 OF 4 NOT COMMUNICATED TO THIS OFFICE. 10 . 1 .201 1 DIRECTION FROM CIT OFFICE RECEIVED BY THIS OFFICE. 11 . 1 .201 1 THE PAPERS A RE BEING FILED FOR SECOND APPEAL. THAT W ITHIN A SPAN OF ONE WEEK THIS OFFICE RECEIVED 93 APPELLATE ORDERS FROM THE OFFICE OF LD. CIT(A) RELATING TO SEVERAL MONTHS BATCHES APART FROM HAVING 19 OLD APPELLATE ORDER S OF WHICH APPEAL SCRUTINY REPORTS ARE BEING PREPARED AND SENT TO THE OFFICE OF CIT, KOL - II, KOLKATA. BESIDES THIS, DUE TO HUGE PENDENCY OF ABOUT 200 TIME BARRING CASES TO BE COMPLETED BY 31.12.2010 A DELAY OCCURRED IN SENDING PAPERS FOR FILING OF APPEAL. THAT THE DELAY IS NOT DELIBERATE AND THE RESPONDENT DOES NOT GAIN IN ANY MANNER BY DELAY COMMITTED. THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY AND IT IS PRAYED THAT THE SAME MAY BE CONDONED. THAT APPEAL IS BEING FILED TODAY, 11.01.2011 BY COMMITTING 15 (FIFTEEN) DAYS DELAY . 3. AFTER HEARING THE RIVAL SUBMISSIONS ON THE CONDONATION OF THE DELAY, WE FIND THAT THE REVENUE HAS FILED THE CONDONATION PETIT ION IN A MECHANICAL MANNER. THE REASONS FILED ARE THAT THE FAILURE OF THE MACHINERY OF REVENUE THAT THERE IS DELAY AT EVERY STAGE FROM APPLICATION FOR FILING THE SECOND APPEAL TO THE CIT, KOLKATA - II AND THE APPROVAL FROM THE OFFICE OF THE CIT, KOLKATA - II, WHILE APPROVING THE APPEAL TO BE FILED BEFORE THE TRIBUNAL. THE REASONS MENTIONED BY THE R EVENUE, IN OUR OPINION, ARE NOT P LAU SIBLE. THE DELAY CANNOT BE CONDONED MECHANICALLY MERELY BECAUSE THE R EVENUE IS A PARTY BEFORE US. WE DO AGREE THAT IN A MATTER OF CONDONATION OF DELAY WHEN THERE IS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE , LIBERAL APPROACH HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE . I N THE IMPUGNED FACTS AND CIRCUMSTANCES OF THE CASE IT CANNOT BE SAID THAT THERE WAS NO NEGLIGENCE OR INACTI ON ON BEHALF OF THE REVENUE. THE ORDER WAS RECEIVED BY THE OFFICE OF CIT - II ON I.T.A. NO . 46 / KOL ./20 1 1 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 3 OF 4 2 8 . 10 .2010 AND THE APPEAL HAS TO BE FILED IN ANY CASE BY 27 . 1 2 .201 0 , BUT THE DEPARTMENT HAS MOVED FOR FILING THE SECOND APPEAL ONLY ON THE LAST DATE OF FILING THE APPEAL AND THE PAPERS REMAINED PENDING IN THE O FFICE OF CIT - II, KOLKATA FOR FIFTEEN DAYS . THIS, IN OUR OPINION, IS A CLEAR CASE OF GROSS NEGLIGENCE ON THE PART OF THE REVENUE. THE MACHINERY IS NOT SUPPOSED TO BE ACTIVE FOR FILING THE APPEAL JUST ON THE LAST DATE OF FILING OF THE APPEAL AND THEN TOOK MORE T IME IN FILING OF THE APPEAL. THE LAW OF LIMITATION BINDS NOT ONLY THE ASSESSEE BUT ALSO THE REVENUE. HON BLE SUPREME COURT IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL & ANOTHER VS. - LIVING M EDIA INDIA LIMITED & ANOTHER IN CIVIL APPEAL NO. 2474 - 2475 OF 2012 DATED 24.02.2012 REGARDING THE CONDONATION OF THE DELAY HELD AS UNDER: - 12) IT IS NOT IN DISPUTE THAT THE PERSONS(S) CONCERNED WERE WELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLU DING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATER BY WAY OF FILING A SPECIAL LEAVE PETITION IN THIS COURT. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LIMITATION WHEN THE DEPARTMENT WAS POSSESSED WITH COMPETENT PERSONS FAMILIAR WIT H COURT PROCEEDINGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, WE ARE POSING A QUESTION WHY THE DELAY IS TO BE CONDONED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT IS A PARTY BEFORE US. THOUGH WE ARE CONSCIOUS OF TH E FACT THAT IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE, A LIBERAL CONCESSION HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES, TH E DEPARTMENT CANNOT TAKE ADVANTAGE OF VARIOUS EARLIER DECISIONS. THE CLAIM ON ACCOUNT OF IMPERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES CANNOT BE ACCEPTED IN VIEW OF THE MODERN TECHNOLOGIES BEING USED AND AVAILABLE. THE LAW OF LIMITATION UNDOUBTEDLY BINDS EVERYBODY INCLUDING THE GOVERNMENT. 13) IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT UNLESS THEY HAVE REASONABLE AND ACCEPTABLE EXPLANATION FOR THE D ELAY AND THERE WAS BONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS/YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED - TAPE IN THE PROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OB LIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERYONE UNDER THE SAME LIGHT AND SHOULD NOT BE SWIRLED FOR THE BENEFIT OF A FEW. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, ACCORDING TO US, THE DEPARTMENT HAS MISERABLY FAILED TO GIVE ANY ACCEPTABLE AND COGE NT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. ACCORDINGLY, THE APPEALS ARE LIABLE TO BE DISMISSED ON THE GROUND OF DELAY. I.T.A. NO . 46 / KOL ./20 1 1 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 4 OF 4 4. THE FACTS INVOLVED IN THE CASE BEFORE US ARE ALSO IDENTICAL TO THE FACTS IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENE RAL & ANOTHER VS. - LIVING MEDIA INDIA LIMITED & ANOTHER(SUPRA), WHEREIN THE GOVERNMENT MACHINERY HAS WORKED IN A PARTICULAR FASHION AND IN ALL THE DELAY THERE IS NO EXPLANATION WHATSOEVER. SIMILAR VIEW HAS BEEN TAKEN BY THIS TRIBUNAL IN ITA NO. 563/KOL/20 12 IN THE CASE OF DCIT VS. - M/S. G.V.N. FUELS LIMITED VIDE ORDER DATED 22.05.2015. RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH OF THIS TRIBUNAL AND THAT OF THE HON BLE SUPREME COURT, WE ARE OF THE VIEW THAT IT IS NOT A CASE WHERE THE REVENUE HAS BEEN PREVENTED TO SUFFICIENT CAUSE TO FILE THE APPEAL WITHIN THE PERMITTED TIME. WE, THEREFORE, REJECT THE CONDONATION OF DELAY AND DECLINE TO ADMIT THE APPEAL. THE APPEAL OF THE REVENUE IS, THEREFORE, DISMISSED AS NOT ADMITTED. 5. IN THE RESULT, THE A PPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 08 , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 8 TH D AY OF JU LY , 201 5 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 4, KOLKATA, P - 7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA - 700 069 (2) M/S. TRADE APARTMENT LTD., 31, N.S. ROAD, DUNCAN HOUSE, KOLKATA - 700 001 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LA HA/SR. P.S .