MEKAN J GALA, MUMBAI V. ACIT 4(3), MUMBAI

ITA 4815/MUM/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1546 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-06-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay; Reassessment proceedings
• Section: 80IB; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4815/MUM/2011 ASSESSMENT YEAR: 2002-03 SHRI MEKAN J. GALA. 93, DADI SHETH AGIARY LANE, KALBADEVI ROAD, MUMBAI-400002 / VS. ACIT-4(3), 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( ! /ASSESSEE) ( ' / REVENUE) PAN. NO. AACPG1554D ! / ASSESSEE BY SHRI HARI RAHEJA ' / REVENUE BY SHRI SUMAN KUMAR-DR # '$ % ! & / DATE OF HEARING : 20/12/2016 % ! & / DATE OF ORDER: 20/12/2016 ITA NO.4815/MUM/2011 MEKAN J. GALA 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 31/03/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE PERTAI NS TO NOT ALLOWING THE DEDUCTION U/S 80IB OF THE INCOME TAX A CT, 1961 (HEREINAFTER THE ACT) AMOUNTING TO RS.6,23,487/- IN THE CASE OF M/S PRIME INDUSTRIES AND RS.2,78,982/- U/S 80IA AND 80IB OF THE ACT IN RESPECT OF PROFIT IN THE CASE OF TIME IN DUSTRIES. 2. SO FAR AS, INITIATING REASSESSMENT PROCEEDINGS U/S 148 OF THE ACT IS CONCERNED, THIS GROUND WAS NOT AG ITATED BY THE LD. COUNSEL FOR THE ASSESSEE, SHRI HARI RAHEJA, THEREFORE, THIS GROUND IS DISMISSED AS NOT PRESSED. 3. THE LD. COUNSEL FOR THE ASSESSEE ALSO MOVED APPLICATION, SUPPORTED BY AN AFFIDAVIT, FOR CONDONA TION OF DELAY OF EIGHT DAYS IN FILING THE APPEAL BEFORE THIS TRIB UNAL, ON THE REASONS STATED IN THE APPLICATION. THE LD. DR, SHRI SUMAN KUMAR OPPOSED THE CONDONATION OF DELAY. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO F AR AS, CONDONATION OF DELAY IS CONCERNED NO DOUBT FILING O F AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSE E AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN W HICH THE ITA NO.4815/MUM/2011 MEKAN J. GALA 3 APPEALS ARE TO BE FILED IN TERMS OF THE RELEVANT PR OVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPROACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA- FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILI NG OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFUSAL TO CO NDONED THE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THRO WN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISCARRIAGE OF JUS TICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPA BLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 3.2. THE HONBLE APEX COURT IN A CELEBRATED DECIS ION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTA NTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS A RE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT C AUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH S UB-SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND ITA NO.4815/MUM/2011 MEKAN J. GALA 4 TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS AP PROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILA TORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL C ONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COUR T IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC T O ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHIC H SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE T HAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN M ATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIE RARCHY. 3.3. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CAS E KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PR IME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUF FICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION. ITA NO.4815/MUM/2011 MEKAN J. GALA 5 3.4. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS T HE CASE OF THE PRESENT ASSESSEE. HAVING MADE THE AFORESAID OBS ERVATION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUD ING FROM HONBLE APEX COURT, THE CIRCUMSTANCES NARRATED BY T HE ASSESSEE, WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELAY IS CONDONED. 3.5. SO FAR AS, THE MAIN GROUND OF DEDUCTION U/S 8 0IA AND 80IB IS CONCERNED, AT THE OUTSET, THE LD. DR, C LAIMED THAT THE IMPUGNED ISSUE IS DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL FOR ASSESSMENT YEAR 1997-98, IN THE CASE O F ASSESSEE ITSELF VIDE ORDER DATED 15/06/2005 IN ITA NO.287/MU M/2002. THIS FACTUAL ASSERTION OF LD. DR WAS NOT CONTROVERT ED BY THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THAT THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF, WHILE DELIBERATING UPON THE ISS UE OF GRANT OF DEDUCTION U/S 80IA, ON IDENTICAL FACT, DULY CONSIDE RED THE PROVISION OF THE ACT, DECISION IN THE CASE OF CIT V S STERLING FOODS 213 ITR 851, ASPINWALL & COMPANY LTD. VS CIT 215 ITR 323 (SC), CIT VS SULTAN & CON RICE MILLS 272 ITR 18 1 AND HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION . EVEN OTHERWISE, THE LD. COUNSEL FOR THE ASSESSEE, IN THE LIGHT OF THE ITA NO.4815/MUM/2011 MEKAN J. GALA 6 ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1997-98, FAIRLY AGREED THAT THE IMPUGNED ISSUE IS COVERED AGAINST T HE ASSESSEE. RESPECTFULLY FOLLOWING THE SAME, WE FIND NO MERIT IN THE APPEAL OF THE ASSESSEE. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/12/2016. SD/- SD/- ( ASHWANI TA NEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ' DATED : 20/12/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / # 0! ( )* ) / THE CIT, MUMBAI. 4. / / # 0! / CIT(A)- , MUMBAI 5. 2'3 -! , / )*& ) 4 , # $ / DR, ITAT, MUMBAI 6. 5 6$ / GUARD FILE. / BY ORDER, .2*! -! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI