ACIT, UDAIPUR V. M/s. Mona Granites P. Ltd., RAJSAMAND

ITA 48/JODH/2014

• Counselvise Citation: 4823314 RSA 2014
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Keywords: Assessment record; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 48 /JODH/2014 (A.Y. 20 1 0 - 11 ) ACIT, CIRCLE - 2, UDAIPUR. VS. M/S. MONA GRANITE P. LTD. , HOSPITAL ROAD, DEOGARH, RAJASMAND. APPELLANT) PAN NO. AABCM 8761 A (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI . DEPARTMENT BY : SHRI JAI SINGH - D.R. DATE OF HEARING : 27 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 28 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 2 6 /0 9 /2013 OF L D . CIT(A), UDAIPUR . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CA S E, THE LD. CIT(A) HAS ERRED IN: - 1. DELETING THE DISALLOWANCE OF EXCESS INTEREST PAYMENT OF RS. 2,10,260/ - MADE TO THE PERSONS COVERED UNDER THE PROVISIONS OF SECTION 40A(2)(B) OF THE I.T. ACT, WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE HAS PAID THE INTEREST AT HIGHER RAT E TO THE PERSONS COVERED UNDER THE 2 PROVISIONS OF SECTION 40(2)(B) OF THE I.T. ACT, FOR NON BUSINESS PURPOSE AND ONLY WITH AN INTENTION TO REDUCE THE TAX PURPOSE. 2. DELETING THE ADDITION AMOUNTING TO RS. 21,78,496/ - MADE BY THE A.O. ON ACCOUNT OF SUPPRESSION OF THE SALES WITHOUT APPRECIATING THE FACTS THAT THE ACTUAL SALES OF THE ASSESSEE ON THE BASI S OF MODUS OPERANDI FOR NINE MO NTH DETECTED DURING THE COURSE OF SURVEY AND WHICH HAS BEEN ACCEPTED BY THE ASSESSEE ALSO. ADDITIONAL GROUNDS OF APPEAL THAT THE PETITIONER DID NOT DELAY THE PRESENT APPEAL PETITION DELIBERATELY AND DELAY INVOLVED IN FILING THE APPEAL IS NEITHER INTENTIONAL NOR DELIBERATE AND THE SAME WAS DUE TO CIRCUMSTANCES BEYOND THE KNOWLEDGE OF THE PETITIONER. 2 REGISTRY HAS POI NTED OUT THAT THIS APPEAL IS BARRED BY LIMITATION BY 37 DAYS. THE DEPARTMENT MOVED AN UNSIGNED , UNDATED APPLICATION FOR CONDONATION OF DELAY WHICH IS PLACED ON RECORD AND READS AS UNDER: - 1 . THAT BEING AGGRIEVED BY THE ORDER PASSED U/S 143(3) OF THE I.T. ACT DATED 28.02.2013, OF THE ASSESSING OFFICER (ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 2, UDAIPUR) THE ASSESSEE FILED FIRST APPEAL BEFORE LD CIT(A), UDAIPUR, WHO VIDE ORDER DATED 26.09.2013 PROVIDED CERTAIN RELIEF TO THE ASSESSEE. THE SAID ORDER WAS RECEIVED IN THIS OFFICE ON 15.10.2013 AND AS SUCH TIME LIMIT FOR FILING THE APPEAL BEFORE HON'BLE ITAT BENCH WAS 13.12.2013. REQUISITE AUTHORIZATION OF WORTHY CIT, UDAIPUR FOR FILLING THE APPEAL BEFORE THE BENCH WAS RECEIVED IN THIS OFFICE ON 02.12.2013, BUT INADVERTENTLY APPEAL COULD NOT BE FILED WITHIN PRESCRIBED TIME LIMIT, THE FACTS CONTAINED THEREIN AND THE GROUNDS RAISED THEREFORE MAY KINDLY BE TREATED AS A PART OF THIS APPLICATION FOR CONDO NATION OF DELAY. 2. THE MISTAKE COMMITTED IN SUCH A CRUCIAL MATTER IS DEEPLY REGRETTED AS THE MISTAKE COMMITTED IS BY VIRTUE OF HUMAN NATURE AND REQUEST YOUR HONOUR TO CONSIDER THE CONDONATION OF DELAY FOR LATE FILLING THE APPEAL IN THE SAID CASE. 3. IN THIS RESPECT IT IS SUBMITTED THAT IN FUTURE SUCH CRUCIAL MATTERS WILL BE ATTENDED PROMPTLY AND NO DELAY WILL BE COMMITTED. 3 4. THAT THE PETITIONER RESPECTFULLY SUBMITS THAT IN VIEW OF THE FOLLOWING GROUNDS THERE HAS BEEN A DELAY IN FILING THE APPEAL PETITION: GROUND 1. THAT THE PETITIONER DID NOT DELAY THE PRESENT APPEAL PETITION DELIBERATELY AND DELAY INVOLVED IN FILLING THE APPEA L IS NEITHER INTENTIONAL NOR DELIBERATE AND THE SAME WAS DUE TO CIRCUMSTANCES BEYOND THE KNOWLEDGE OF THE PETITIONER. 2. THAT FOR THE SAKE OF CONVENIENCE AND AS A PART OF HOUSEKEEPING, OFFICE RECORDS ARE PLACED AT PROPER PLACE FROM TIME TO TIME. AT THAT TIME ASSESSMENT RECORDS, NO MORE IN IMMEDIATE USE OR WHERE ONGOING PROCEEDINGS WERE JUST CONCLUDED WERE BEING RESETTLED ON THEIR RESPECTIVE PLACE. THE PROCESS OF PLACING/RE - SETTLEMENT OF RECORDS UNFORTUNATELY CO - INCIDED WITH RECEIPT OF CIT'S ORDER (I.E. AUTHOR IZATION) FOR FILING APPEAL BEFORE HON'BLE ITAT, JODHPUR ALONGWITH ASSESSMENT RECORD OF THE SAID CASE. A VERY SERIOUS MISTAKE WAS COMMITTED AT THIS POINT OF TIME AND THE ASSESSMENT RECORD IN THIS CASE, WHICH WAS OF VITAL IMPORTANCE AND REQUIRED IMMEDIATE NE CESSARY ACTION FOR FILING APPEAL, WAS MIXED WITH OTHER RECORDS AND WAS SHIFTED TO PROPER PLACE. BY MISTAKE THE RECORD AND AUTHORIZATION LETTER FOR FILING APPEAL COULD NOT BE PUT UP AND PURSUED FOR FILLING THE APPEAL BEFORE HON'BLE ITAT. WHEN THE MISTAKE CA ME TO THE NOTICE, LEGAL TIME LIMIT FOR FILING APPEAL HAD EXPIRED. PRAYER UNDER THE ABOVE FACTS AND CIRCUMSTANCES, IT IS MOST RESPECTFULLY PRAYED THAT YOUR HONOUR MAY BE GRACIOUSLY PLEASED TO CONDONE THE DELAY INVOLVED IN FILING THE APPEAL PETITION AND CONSIDER THE SAME ON MERITS AND PASS SUCH ORDER AS MAY BE DEEMED FIT AND JUST. THE HUMBLE PETITIONER . 3. D U R ING THE COURSE OF HEARING, LEARNED D.R. REITERATED THE CONTENTS OF THE AFORESAID APPLICATION AND PRAYED TO CONDONE THE DE LAY IN FILING THE APPEAL. 4. IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE STRONGLY OPPOSED THE AFORESAID REFERRED TO APPLICATION MOVED BY THE DEPARTMENT 4 AND SUBMITTED THAT NO REASON HAS BEEN GIVEN FOR DELAY, THEREFORE, THE APPEAL SHOULD NOT BE ADMITTED. RELIANCE WAS P L ACED ON THE DECISION OF THE ITAT CHANDIGARH BENCH IN THE CASE OF ACIT VS. RANBIR CHEMICALS INDUSTRIES P. LTD. REPORTED AT [2008] 301 ITR (AT) 104 (CHANDIGARH). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE T HROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE APPEAL FILED BY THE DEPARTMENT IS BARRED BY LIMITATION AND NO SPECIFIC REASON HAS BEEN GIVEN FOR FILING BELATEDLY EXCEPT THE INTERNAL WORKING OF THE DEPARTMENT WH ICH IS N OT A SUFFICIENT REASON TO CONDONE THE DE L A Y. IT IS ALSO NOTICED THAT THE DEPARTMENT IS TAKING THE MATTER IN CASUAL MANNER THAT IS WHY THE APPLICATION MOVED FOR CONDONATION OF DELAY IS UNSIGNED AND UNDATED. 6. ON A SIMILAR ISSUE, THE ITAT, CHANDIGARH BENCH IN THE CASE OF ACIT VS. RANBIR CHEMICALS INDUSTRIES P. LTD. (SUPRA) WHEREIN ONE OF US (ACCOUNTANT MEMBER) IS A SIGNATORY, HAS HELD AS UNDER: - IT WAS NOT IN DISPUTE THAT THE DEPARTMENT FILED THE APPEAL LATE AND THE DELAY WAS 8 YEARS AND 47 DAYS. THE FACT THAT NO APPEAL HAD BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF COMMISSIONER (APPEALS) FOR THE ASSESSMENT YEAR 1994 - 95 WAS NOTED BY THE C OMMISSIONER (APPEALS) AS WELL AS THE TRIBUNAL IN THEIR ORDERS FOR THE ASSESSMENT YEAR 1995 - 96. THEREFORE, THE DEPARTMENT COULD NOT 5 CLAIM COMMUNIC ATION GAP AS THE MAIN REASON FOR FILING THE APPEAL LATE. FAULTY INTERNAL WORKING IN THE DEPARTMENT COULD NOT B E CONSIDERED A SUFFICIENT CAUSE FOR CONDONING THE DELAY. 7 . WE THEREFORE, BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER IN THE CASE OF ACIT VS. RANBIR CHEMICALS INDUSTRIES P. LTD. (SUPRA) , DISMISS THE APPEAL OF THE DEPARTMENT IN LIMIN E BEING BARRED BY LIMITATION . 8 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 28 TH AUGUST , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .