Mellacheruvu Radhika, Narasaraopeta V. THE ITO, WARD - 1, Narasaraopeta

ITA 473/VIZ/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0191 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 31-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K SETHI
• Assessee Lawyers: A C GANGAIAH
• Keywords: Bonafide belief; Condonation of delay
• Section: 143(3); 142(1); 148; 154

Judgement Text

ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , ,, , . . . . , , , , % % % % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER . .. ./ // / I.T.A.NO.473/VIZAG/2014 ( / ASSESSMENT YEAR : 2006-07 ) SMT. MELLACHERUVU RADHIKA NARASARAOPET VS. ITO WARD - 1 NARASARAOPET [ PAN: AFSPM5850R] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) . .. ./ // / I.T.A.NO.474/VIZAG/2014 ( / ASSESSMENT YEAR : 2006-07 ) M.V. ELECTRONICS NARASARAOPET VS. ITO WARD - 1 NARASARAOPET [ PAN: AAJFM0497J] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) , / / APPELLANT BY : SHRI A.C. GANGAIAH, AR -., / / RESPONDENT BY : SHRI M.K. SETHI, DR / 3 / DATE OF HEARING : 29 .10.2015 / 3 / DATE OF PRONOUNCEMENT : 30.11.2015 ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 2 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE APPEALS FILED BY DIFFERENT ASSESSEES ARE DI RECTED AGAINST THE SEPARATE ORDERS OF CIT(A), GUNTUR DATED 13.11.2009 FOR THE ASSESSMENT YEAR 2006-07. SINCE, ISSUES INVOLVED IN THESE APPE ALS ARE COMMON, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FACTS ARE EXTRACTED FROM ITA NO.473 OF 2014, FOR THE SAKE OF CONVENIENCE. AS STATED, BRIEF FACTS OF THE CASE AR E THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER RETURN OF INCOME FOR THE AS SESSMENT YEAR 2006-07 ON 31.3.2007 DECLARING TOTAL INCOME OF RS. 2,02,510 /- AND SAME WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (H EREINAFTER CALLED AS THE ACT). SUBSEQUENTLY, A SURVEY OPERATION U/S 1 33A OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 29.10.2007. THEREAFTER, THE CASE WAS REOPENED AND ACCORDINGLY N OTICE U/S 148 OF THE ACT WAS ISSUED. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE HAS FILED HER RETURN OF INCOME ADMITTING A TOTAL INCOME OF ` 2,22,660/-. THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/ S 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO SHOW CAUSE NOTICE, THE ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 3 ASSESSEES A.R. APPEARED FROM TIME TO TIME AND FURN ISHED THE BOOKS OF ACCOUNTS AND OTHER DETAILS AS REQUIRED BY THE ASSES SING OFFICER. THE A.O. AFTER CONSIDERING THE DETAILS SUBMITTED BY THE ASSESSEE, COMPLETED THE ASSESSMENT U/S 143(3) R.W.S 147 OF THE ACT AND DETERMINED TOTAL INCOME OF RS.17,86,630/- AS AGAINST THE RETURNED IN COME OF RS. 2,22,660/-. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE A SSESSEE CHALLENGED THE VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER AND FILED DETAILED WRITTEN SUBMISSIONS. HOWEVER, THE CIT(A), AFTER CO NSIDERING THE EXPLANATION SUBMITTED BY THE ASSESSEE, CONFIRMED TH E ADDITIONS MADE BY THE ASSESSING OFFICER AND DISMISSED THE APPEAL. TH EREAFTER, THE A.O. INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, FOR CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME AND LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSEE CHA LLENGED THE PENALTY ORDER BEFORE THE CIT(A). THE CIT(A), AFTER CONSIDE RING THE EXPLANATIONS OF THE ASSESSEE DELETED THE PENALTY. 4. SUBSEQUENTLY, THE ASSESSEE TAKING A CLUE FROM TH E PENALTY ORDER, FILED A RECTIFICATION APPLICATION U/S 154 OF THE AC T BEFORE THE CIT(A) AND ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 4 REQUESTED TO RECTIFY THE ASSESSMENT ORDER DATED 13. 11.2009 PASSED U/S 143(3), R.W.S. 147 OF THE ACT. THE CIT(A), HOWEVER , REJECTED THE RECTIFICATION APPLICATION BY HOLDING THAT THE ASSES SEE SEEKING REVIEW OF APPELLATE ORDER ON MERITS, RATHER THAN POINTING OUT ANY MISTAKES APPARENT FROM THE FACE OF THE ORDER. THEREFORE, TH E RECTIFICATION APPLICATION FILED BY THE ASSESSEE CANNOT STAND IN T HE EYES OF LAW, THEREFORE, DISMISSED THE SAME. THE ASSESSEE CARRIE D THE MATTER TO THE ITAT, AGAINST THE CIT(A) ORDER REJECTING THE APPLIC ATION FILED U/S 154 OF THE ACT. THE ITAT DISMISSED THE APPEAL FILED BY TH E ASSESSEE. THEREAFTER, THE ASSESSEE FILED AN APPEAL AGAINST TH E ORDER OF CIT(A) DATED 13.11.2009 ALONG WITH PETITION FOR CONDONATIO N OF DELAY IN FILING THE APPEAL. 5. THE LD. A.R. OF THE ASSESSEE, DURING THE COURSE OF HEARING BEFORE US, SUBMITTED THAT THERE IS A DELAY OF 1653 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE A.R. SUBMITTED THAT THE A SSESSEE FILED A PETITION FOR CONDONATION OF DELAY WITH A REASON THA T THE ASSESSEE WAS ON THE BONAFIDE BELIEF THAT SHE CAN SOLVE HER PROBLEMS BY FILING RECTIFICATION APPLICATION BEFORE THE CIT(A), BUT SHE COULD NOT SU CCEED IN HER ATTEMPT. ONCE, SHE CAME TO KNOW THAT THE RECTIFICATION APPLI CATION FILED BY HER IS DISMISSED BY THE CIT(A) AND ALSO UPHELD BY THE ITAT , SHE HAD FILED ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 5 APPEAL AGAINST THE ORDER PASSED U/S 143(3) R.W.S. 1 47 OF THE ACT. THEREFORE, THERE IS A SUFFICIENT REASON FOR NOT FIL ING THE APPEAL WITHIN THE TIME LIMIT PROVIDED UNDER THE ACT AND THEREFORE REQ UESTED TO CONDONE THE DELAY AND ADMIT THE APPEAL ON MERITS. THE A.R. FURTHER SUBMITTED THAT THE ASSESSEE, ON THE EXPERT ADVICE OF A PROFES SIONAL, FILED RECTIFICATION APPLICATION BEFORE THE CIT(A), BUT TH E CIT(A) DISMISSED THE ASSESSEES APPLICATION IN TOTAL WITHOUT CONSIDERING THE ISSUES RAISED BY THE ASSESSEE. THEREFORE, IT CONSTITUTES A SUFFICI ENT CAUSE FOR NOT FILING THE APPEAL IN TIME. THE A.R. FURTHER SUBMITTED THA T THE ASSESSEE IS HAVING A MERIT ON ITS ARGUMENTS, UNLESS THE APPEAL IS ADMITTED, A MERITORIOUS CASE MAY BE THROWN OUT OF THE JUDICIAL REVIEW, THEREFORE, REQUESTED TO CONDONE THE DELAY IN FILING THE APPEAL . 6. ON THE OTHER HAND, THE LD. D.R. VEHEMENTLY OPPOS ED THE CONDONATION OF DELAY. THE D.R. ARGUED THAT THERE I S INORDINATE DELAY OF 1653 DAYS AND THE ASSESSEE HAS NOT GIVEN ANY VALID REASON FOR SUCH A HUGE DELAY. THE ASSESSEE STATED IN HER AFFIDAVIT TH AT SHE WAS MISTAKEN THE FACTS ON THE ADVICE OF A PROFESSIONAL AND SHE W AS UNDER THE BONA FIED BELIEF THAT HER PROBLEMS WILL BE TAKEN CARE OF BY RECTIFICATION APPLICATION U/S 154 FILED BEFORE CIT(A). IF THE DEL AY IS CONDONED FOR THESE REASONS, THEN, THERE IS NO MEANING FOR THE TI ME LIMITS SPECIFIED ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 6 UNDER THE ACT AND THE VERY PURPOSE OF THE STATUTE W OULD BE DEFEATED. THEREFORE, REQUESTED TO DISMISS THE ASSESSEE APPEAL . 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIALS AVAILABLE ON RECORD. ADMITTEDLY, IN THIS CASE, THE RE IS A DELAY OF 1653 DAYS IN PRESENTING THE APPEAL BEFORE THE ITAT. THE ASSESSEE CONTENDED THAT SHE HAD A SUFFICIENT REASON FOR DELAY IN FILIN G THE APPEAL, WITHIN THE TIME PRESCRIBED UNDER THE ACT. THEREFORE, REQUESTE D TO CONDONE THE DELAY IN FILING THE APPEAL. ON PERUSAL OF THE COND ONATION PETITION ALONG WITH AFFIDAVIT FILED BY THE ASSESSEE, WE NOTICED TH AT THE ASSESSEE STATED IN HER AFFIDAVIT THAT THE RECTIFICATION APPLICATION U/S 154 OF THE ACT, FILED BEFORE CIT (A) MAY RESOLVE THE DISPUTE, THEREFORE, SHE DID NOT OPT TO FILE THE APPEAL ON THE ORDER OF CIT (A) DATED 13-11-2009 . THE ASSESSEE FURTHER CONTENDED THAT SHE HAD MERIT IN HER CASE, B UT, THE CIT (A) DID NOT CONSIDER THE RELEVANT SUBMISSIONS BEFORE DISMIS SING THE APPEAL. THEREFORE, UNLESS THE APPEAL IS CONDONED AND HEARD ON MERITS, A MERITORIOUS CASE MAY BE THROWN OUT OF THE JUDICIAL REVIEW. THEREFORE, REQUESTED TO CONDONE THE DELAY IN FILING THE APPEAL . THE D.R. ON THE OTHER HAND, STRONGLY OPPOSING THE ASSESSEE CONTENTI ON, ARGUED THAT IF THE DELAY IS CONDONED FOR THESE REASONS, THEN, THER E IS NO MEANING FOR ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 7 THE TIME LIMITS SPECIFIED UNDER THE ACT AND THE VER Y PURPOSE OF THE STATUTE WOULD BE DEFEATED. 8. THE TRIBUNAL HAS INHERENT POWER U/S 253(5) OF TH E INCOME TAX ACT 1961, TO ADMIT THE APPEAL BEYOND THE TIME, IF IT IS SATISFIED THAT THERE IS SUFFICIENT REASON FOR THE APPELLANT FOR NOT PRESENT ING THE APPEAL IN TIME. BUT, IT IS THE DUTY OF THE APPELLANT TO PROVE THAT SHE HAD SUFFICIENT REASONS FOR NOT PRESENTING THE APPEAL WITHIN TIME A LLOWED UNDER THE ACT BEYOND DOUBT. IN THE PRESENT CASE ON HAND, FROM TH E RECORDS IT IS OBSERVED THAT THE ASSESSEE HAS FILED APPEAL AGAINST THE ASSESSMENT ORDER AND CONTENDED THE ISSUES ON MERITS BEFORE THE CIT(A). SINCE, SHE DID NOT GET A FAVOURABLE ORDERS FROM THE CIT(A), SH E HAD FILED AN APPLICATION U/S 154 OF THE ACT TO REVIEW THE APPELL ATE ORDER ON MERITS WITHOUT POINTING OUT ANY ERROR OR MISTAKES FROM THE ORDER. FROM THE RECORDS, WE NOTICED THAT THERE IS AN INORDINATE DEL AY OF MORE THAN 2 YEARS IN FILING THE RECTIFICATION APPLICATION BEFOR E THE CIT(A), BUT, THE ASSESSEE FAILED TO EXPLAIN THE REASONS FOR FILING T HE RECTIFICATION APPLICATION AFTER FOR SUCH A DELAY. THEREFORE, FRO M THIS CONDUCT OF THE ASSESSEE, WE ARE OF THE OPINION THAT THE ASSESSEE I S TRYING TO REVIEW THE ALREADY CONCLUDED PROCEEDINGS BY FILING THIS APPEAL . THE ASSESSEE, EXCEPT STATING THAT SHE WAS ON THE BONAFIDE BELIEF THAT SHE WOULD SOLVED ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 8 HER PROBLEM BY FILING APPLICATION U/S 154 OF THE AC T, COULD NOT ADDUCED ANY VALID REASONS FOR NON-FILING THE APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT. THOUGH JUDICIAL FORUMS IN THE COUNTRY CON SISTENTLY HELD THAT PRAGMATIC APPROACH IS REQUIRED IN CONDONING THE DEL AY IN FILING THE APPEAL, BUT IT IS ON THE PART OF THE ASSESSEE TO PR OVE BEYOND DOUBT THAT THERE IS A REASONABLE AND SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE TIME LIMIT PRESCRIBED UNDER THE ACT. IN THE PRESENT CASE ON HAND, THE ASSESSEE COULD NOT BROUGHT ON RECORD ANY SUFFICIENT AND VALID REASON FOR CONDONING THE DELAY OF 1653 DAYS IN FILI NG THE APPEAL. THE DELAY OF 1653 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL HAS OCCURRED SOLELY DUE TO THE NEGLIGENCE OF THE ASSESSEE AND AL SO WHICH IS NOTHING BUT AN ATTEMPT TO REVIEW THE CONCLUDED PROCEEDINGS BY FILING FRESH APPEAL. IF, SUCH A HUGE DELAY OF 1653 DAYS IS COND ONED FOR THESE REASONS, THE VERY PURPOSE OF PRESCRIBING THE TIME L IMIT FOR FILING THE APPEAL BY THE STATUTE WOULD BE DEFEATED. 9. THE ASSESSEE HAS PLACED HER RELIANCE UPON PLETHO RA OF CASE LAWS IN SUPPORT OF HER ARGUMENTS. WE HAVE EXAMINED THE CASE LAWS RELIED UPON BY THE ASSESSEE IN THE LIGHT OF THE FACTS OF THE PR ESENT CASE AND CAME TO THE CONCLUSION THAT THE CASE LAWS RELIED UPON BY TH E ASSESSEE IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 9 10. THE ITAT, CHENNAI BENCH THIRD MEMBER DECISION I N THE CASE OF JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. 104 ITD 14 9, CONSIDERED A SIMILAR ISSUE AND HELD AGAINST THE ASSESSEE AS FOLL OWS. THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE AP PELLANT'S CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVO LENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND COND ONING THE DELAY IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVE R. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PR OVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVO KING THE AID OF THE PROVISIONS. WHERE NO NEGLIGENCE, NOR INACTION, OR W ANT OF BONA FIDES CAN BE IMPUTED TO THE APPELLANT A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SE EKERS OF JUSTICE MUST COME WITH CLEA6 HANDS. THE ASSESSEE JUSTIFIED THE D ELAY ONLY WITH REFERENCE TO THE AFFIDAVIT OF A DIRECTOR OF THE COM PANY. IN THE SAID AFFIDAVIT HE STATED THAT THE CIT(A)'S ORDER WAS MIS PLACED AND FORGOTTEN. IT WAS FOUND WHILE SORTING OUT THE UNWANTED PAPERS. THEREAFTER STEPS WERE TAKEN FOR THE PREPARATION OF THE APPEAL. CONSE QUENTLY THE DELAY WAS CAUSED. THIS CLEARLY SHOWS THAT THE DELAY WAS DUE T O THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSES SEE COULD HAVE VERY WELL AVOIDED THE DELAY BY THE EXERCISE OF DUE CARE AND ATTENTION. THERE EXISTS NO SUFFICIENT AND GOOD REASON FOR THE DELAY OF 310 DAYS.VEDABAI ALIAS VAIJAYANATABAI EABURAO PAT/I VS . SHANTARAM BABURAO PAT/I (2002) 173 CTR (SC) 300 (2002) 253 IT R 798 (SC) AND RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361 APPLIED. 11. CONSIDERING THE FACTS AND CIRCUMSTANCE OF THE C ASE AND ALSO APPLYING THE RATIO OF COORDINATE BENCH DECISION, WE ARE OF THE OPINION ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 10 THAT, THE REASONS GIVEN BY THE ASSESSEE DOES NOT CO NSTITUTE A SUFFICIENT AND GOOD REASON FOR CONDONATION OF 1653 DAYS DELAY IN FILING THE APPEAL. THEREFORE, WE DISMISS THE APPEAL FILED BY THE ASSESSEE AS NOT MAINTAINABLE. 12. THE FACTS AND REASONS GIVEN BY THE ASSESSEE FOR CONDONATION OF DELAY IN ITA.NO. 474/VIZ/2014 IS IDENTICAL TO THAT OF ITA.NO. 473/VIZ/2014. THEREFORE, FOR THE DETAILED REASONS G IVEN BY US IN THE PRECEDING PARAGRAPHS, WE DISMISS THE APPEAL FILED B Y THE ASSESSE. 13 . IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE S IN ITA NOS.473 & 474/VIZAG/2014 ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 TH NOV15. SD/- SD/- ( (( ( . .. . ) ) ) ) ( (( ( . . . . ) ) ) ) ( (( ( V. DURGA RAO ) )) ) ( (( ( G. MANJUNATHA) / // / JUDICIAL MEMBER / // / ACCOUNTANT MEMBER /VISAKHAPATNAM: 6 / DATED : 30.11.2015 VG/SPS / - 7 / COPY OF THE ORDER FORWARDED TO :8 1. , / THE APPELLANT SMT. M. RADHIKA, W/O MVB GUPTA, 9-7-43/11 TOP FLOOR, MV TOWERS, ARUNDALPET, NARASARAOPET-522 601. 2. , / THE APPELLANT M.V. ELECTRONICS, C/O M.V. GUPTA, 9-7-43/11, TOP FLOOR, MV TOWERS, ARUNDALPET, NARASARAOPET-522601 . 2. -., / THE RESPONDENT ITO WARD-1, NARASARAOPET ITA NO.473/VIZAG/2014 SMT. MELLACHERUVU RADHIKA, NARASARAOPET ITA NO.474/VIZAG/2014 M.V. ELECTRONICS, NARASARAOPET 11 3. : / THE CIT, GUNTUR 4. : () / THE CIT (A), GUNTUR 5. -, , / // / DR, ITAT, VISAKHAPATNAM 6 . . . . / GUARD FILE / BY ORDER // TRUE COPY // @A ( SR.PRIVATE SECRETARY ) , / // / ITAT, VISAKHAPATNAM