Shri Avara Haji, Cochin V. ITO, Palakkad

ITA 483/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58373 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 13-08-2010
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: C K RAMAKRISHNAN
• Keywords: Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A NO. 483/COCH/2010 ASSESSMENT YEAR : 1999-2000 SHRI AVARA HAJI, KATTUKANDAN HOUSE, KULIKKILIYAD P.O., KOTTAPURAM, PALAKKAD DISTRICT. [PAN: A 1899] VS. THE INCOME TAX OFFICER, WARD-2, PALAKKAD. (ASSESSEE-APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI C.K.RAMAKRISHNAN, ADV. REVENUE BY SMT. VIJAYAPRABHA, JR. DR DATE OF HEARING 20/03/2012 DATE OF PRONOUNCEMENT 29/03/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 21-12-2006 PASSED BY LD CIT(A)-V, KOCHI AND IT RELATES TO THE ASSESSM ENT YEAR 1999-2000. 2. THE APPEAL IS BARRED BY LIMITATION BY 1270 DA YS. THE ASSESSEE HAS FILED TWO AFFIDAVITS, ONE DATED 13-08-2010 AND ANOTHER ONE DA TED 14-09-2010, WHERE IN HE HAS PRAYED THE TRIBUNAL TO CONDONE THE DELAY. THE CONTE NTS OF THE AFFIDAVIT DATED 14.09.2010 ARE EXTRACTED BELOW:- I AM THE APPELLANT IN THE PRESENT APPEAL. APPELLA NT WOULD HAVE TO FILE APPEAL AGAINST THE ORDER OF APPELLATE COMMISSIONER WITHIN 60 DAYS FROM THE ORDER OF COMMUNICATION DATED 21.12.2006 . THE APPELLANT WAS UNDER TREATMENT FOR BACK PAIN. HE WAS UNABLE TO WALK AND SO HE COULD NOT ENQUIRE ABOUT THE APPEAL CASE. MOREOVER, HE WAS UN DER CONTINUOUS I.T.A. NO. 483 /COCH/2010 2 TREATMENT. HE COULD NOT PAY LITIGATION EXPENSES AT THAT TIME DUE TO THE TREATMENT CONTINUED BY THE AYURVEDIC DOCTOR. APPEL LANT HAS FILED DELAY PETITION IN THE EARLIER APPEAL ALSO AND PRODUCED ME DICAL CERTIFICATE SHOWING THE TREATMENT MADE BY THE AYURVEDIC DOCTOR. HE WAS UNDER TREATMENT DURING EARLIER PERIOD ALSO. AT THE TIME OF FILING APPEAL HE WAS UNABLE TO PAY LITIGATION EXPENSES AND EXPENSES FOR PAYMENT OF CHA LLAN ETC DUE TO THE TREATMENT. BUT NOW THIS APPELLANT RECEIVED A DEMAN D NOTICE DATED 30.3.2010 FROM THE INCOME TAX OFFICER, PALAKKAD. A GAINST THAT APPELLANT APPROACHED THE HONBLE HIGH COURT AND FILED WRIT PE TITION 16414/2010 . BUT THE HONBLE HIGH COURT DISMISSED THE WRIT PE TITION ON THE GROUND THAT THERE IS NO INTERFERENCE UNDER ARTI CLE 226 DUE TO THE AVAILABILITY OF STATUTORY REMEDY TO FILE APPEAL BEF ORE THE TRIBUNAL. SO APPELLANT CAUSED SOME DELAY AFTER THE ORDER OF TRIB UNAL DUE TO THE FILING OF THE WRIT PETITION BEFORE THE HONBLE HIGH COURT. T HE APPELLANT IS SUFFERING FROM BACK PAIN AND CONTINUING TREATMENT BY THE SAME DOCTOR. THERE IS NO OTHER DELIBERATE LACHES ON THE PART OF APPELLANT. HENCE THERE IS NO OTHER ALTERNATIVE REMEDY THAN TO FILE APPEAL BEFORE THIS HONBLE TRIBUNAL. SO IT IS HUMBLY PRAYED THAT THIS HONBLE TRIBUNAL MAY BE PLE ASED TO CONDONE THE DELAY OF 1270 DAYS IN FILING THE APPEAL. 3. IN ORDER TO DISPOSE OF THIS PETITION PRAYING THE TRIBUNAL TO CONDONE THE DELAY IN FILING THE APPEAL, IT IS NECESSARY TO DWELL UPON TH E CHEQUERED HISTORY OF THE ASSESSEE. THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS COM PLETED TO THE BEST OF JUDGEMENT OF THE ASSESSING OFFICER U/S 144 OF THE ACT ON 11.02.2 004. THE ASSESSEE CHOSE TO FILE REVISION PETITION BEFORE THE ADMINISTRATIVE COMMISS IONER U/S 264 OF THE ACT AND IT APPEARS THAT THE SAID PETITION WAS DISMISSED. AGAINST THE ASSESSMENT ORDER AS WELL AS THE REVISION ORDER PASSED U/S 264 OF THE ACT, THE ASSESSEE FILED WRIT PETITION WP(C) NO.7108 OF 2005 BEFORE THE HONBLE HIGH COURT OF KERALA. THE HONBL E HIGH COURT, VIDE ITS ORDER DATED 07-03-2005, SET ASIDE THE ORDER PASSED U/S 264 OF T HE ACT WITH A DIRECTION THAT THE REVISION APPLICATION FILED U/S 264 SHOULD BE RECORDED AS APP EAL FILED U/S 246A AND THE SAME BE I.T.A. NO. 483 /COCH/2010 3 TRANSFERRED TO CIT(APPEALS) FOR DISPOSAL ACCORDING TO LAW. PURSUANT TO THE ORDER OF HONBLE HIGH COURT, THE LD CIT(A) PASSED ORDERS ON 21.12.2006. THERE AFTER, THE ASSESSEE REMAINED SILENT AND DID NOT PURSUE THE MAT TER FURTHER BEFORE THE TRIBUNAL. 4. AS MENTIONED IN THE AFFIDAVIT, THE ASSESSEE RECEIVED A NOTICE DATED 30-3-2010 DEMANDING THE TAX ARREARS. AGAINST THE SAID DEMAND NOTICES, THE ASSESSEE FILED ANOTHER WRIT PETITION NUMBERED AS WP(C) NO.16414 OF 2010 BE FORE THE HONBLE HIGH COURT OF KERALA AND THE HONBLE HIGH COURT, VIDE ITS ORDER D ATED 12-07-2010, DISMISSED THE WRIT PETITION. THE FOLLOWING OBSERVATIONS MADE BY THE H ONBLE HIGH COURT IN THE ORDER DATED 12.07.2010 CITED ABOVE ARE RELEVANT. 3. BY VIRTUE OF THE ORDER PASSED BY THE APPELLATE AUTHORITY, THE ORIGINAL TAX LIABILITY TO AN EXTENT OF RS.9,35,624/- WAS BROUGHT DOWN TO JUST 1/3 RD OF RS.3,51,794/-. THE PETITIONER DID NOT CHOOSE TO FI LE ANY FURTHER APPEAL BEFORE THE TRIBUNAL AND AS SUCH, THE APPELLATE ORDE R PASSED ON 21-12-2006 BY THE STATUTORY APPELLATE AUTHORITY HAS BECOME FIN AL. THIS BEING THE POSITION, THE PETITIONER CANNOT VAGUELY OR INDIRECT LY CLUB THE TWO DIFFERENT CAUSE OF ACTIONS TOGETHER AND CONTEND THAT NO AMOUN T IS LIABLE TO BE PAID BY THE PETITIONER AND AS SUCH, NO INTERFERENCE IS WARR ANTED, SUBMITS THE LEARNED COUNSEL. 4. THIS COURT FINDS CONSIDERABLE FORCE IN THE S AID SUBMISSION. THERE IS NO CASE FOR THE PETITIONER THAT, THE PETITIONER HAS CHALLENGED FIXATION OF TAX LIABILITY, AFTER THE DISPOSAL OF THE STATUTORY APPE AL ON 21.12.2006, BY RESORTING ANY PROCEDURE KNOWN TO LAW AND THIS BEING THE POSITION, THE CHALLENGE RAISED AGAINST EXT. P2 DOES NOT STAND THE TEST OF LAW. MORE SO, WHEN THE RESPONDENT HAS ASSERTED IN THE STATEMENT, THAT THE AMOUNT SOUGHT TO BE RECOVERED FROM THE PETITIONER IS NOT PENALTY BUT THE TAX ELEMENT. WITH REGARD TO THE AMOUNT DEMANDED IN RESPECT OF TH E ASSESSMENT YEAR 2005-06, IT IS ONLY A SUM OF RS.3,855/-. WITH REGA RD TO THIS EXTENT AS WELL, I.T.A. NO. 483 /COCH/2010 4 THERE IS NO SUCH CHALLENGE RAISED IN THE WRIT PETIT ION. ACCORDINGLY, INTERFERENCE IS DECLINED AND THE WRIT PETITION IS D ISMISSED. 5. AFTER THE ORDER DATED 12-07-2010 PASSED BY T HE HONBLE HIGH COURT, REFERRED SUPRA, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL ON 13-08-2010 AGAINST THE APPELLATE ORDER DATED 21.12.2006, WITH A DELAY OF 1270 DAYS. 6. IN THE AFFIDAVIT, THE ASSESSEE DID NOT GIVE A NY SPECIFIC REASON FOR THE DELAY. THE REASONS CITED BY THE ASSESSEE SUCH AS TREATMENT FOR BACK PAIN, SHORTAGE OF MONEY ETC. ARE VERY VAGUE AND GENERAL IN NATURE. THE ASSESSEE HAS ATTACHED THREE CERTIFICATES FROM MANNARKKAD AYURVEDIC CLINIC IN SUPPORT OF THE AFF IDAVIT, IN WHICH THE PERIOD OF TREATMENT IS MENTIONED AS UNDER:- DATE OF CERTIFICATE PERIOD OF TREATMENT 10-02-2007 10-01-2006 TO 09-02-200 7 10-08-2009 02-10-2007 TO 10-08-200 9 26-06-2010 05-10-2009 TO 25.06.20 10 ALL THE CERTIFICATES ARE WORDED IDENTICALLY AND IT IS MENTIONED THAT THE ASSESSEE WAS SUFFERING FROM URUSTAMBHA ROGHA AND HE WAS UNDER THE TREATMENT OF THE CERTIFYING DOCTOR. 7. IT IS PERTINENT TO NOTE THAT THE MEDICAL CE RTIFICATES DID NOT MENTION THAT THE ASSESSEE WAS IMMOBILISED OR HE WAS UNDER TREATMENT AS IN-PA TIENT. FURTHER THE TREATMENT WAS UNDERTAKEN INTERMITTENTLY AND NOT CONTINUOUSLY. IT WAS ALSO NOT SHOWN THAT THE ASSESSEE COULD NOT CARRY OUT ANY TYPE OF WORK DURING THE PER IOD OF 1270 DAYS. HOWEVER, THE FACT REMAINS THAT THE ASSESSEE HAS FILED WRIT PETITION B EFORE THE HONBLE HIGH COURT AND WAS ALSO PURSUING THE SAME. IT APPEARS THAT THE ASSESS EE CHOSE TO PREFER THIS APPEAL ONLY AFTER THE ORDER DATED 12-07-2010 PASSED BY THE HONBLE HI GH COURT, PARTICULARLY IN VIEW OF THE CONTENTION OF THE LD. COUNSEL FOR THE DEPARTMENT TH AT THE APPELLATE ORDER DATED 21-12- 2006 HAS BECOME FINAL. HENCE, WE ARE OF THE VIEW T HAT THE REASONS CITED FOR THE DELAY ARE SELF SERVING REASONS AND HENCE WE ARE NOT CONVINCED WITH THE SAME AND HENCE THE PRESENT APPEAL IS LIABLE TO BE DISMISSED IN LIMINE. I.T.A. NO. 483 /COCH/2010 5 8. BEFORE CONCLUDING MATTER, WE FEEL IT APPROP RIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF CONDONATION OF DELAY . THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. METAL DISTRIBUTORS LTD (1988 ) 172 ITR 356 HAS HELD AS UNDER:- THAT IN THE ABSENCE OF PROP0ER EXPLANATION FOR THE DELAY IN PRESENTING FOR LEAVE TO APPEAL TO THE HONBLE SUPREME COURT, THE DELAY COUL D NOT BE CONDONED. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF STA TE OF RAJASTHAN VS. CHAUDHURY CONSTRUCTION AIR 1988 RAJ. 123 HAS HELD AS UNDER: THAT IN THE ABSENCE OF MATERIAL PARTICULARS AS TO WHY DELAY HAD BEEN CAUSED, THE DELAY COULD NOT BE CONDONED BY MERELY ACCEPTING THE EXPLANATION THAT THE DELAY OCCURRED IN THE GOVERNMENT OFFICE. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SOOR AJAMULL NAGARMAL (SUPRA) HAS HELD THAT:- THE CAUSE FOR DELAY IN MAKING THE APPLICATION WHIC H BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUS E WITHIN THE MEANING OF SECTION 5 OF LIMITATION ACT. WHERE NO NEGLIGENCE N OR INACTION NOR WANT OF BONA FIDES CAN BE IMPUTED TO THE APPLICANT, A LIBERAL CO NSTRUCTION OF THE SECTION HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. THE APPLICANT HAS TO SHOW SUFFICIENT CAUSE FOR NOT FILING THE APPLICATION ON THE LAST DAY OF THE LIMITATION AND MUST EXPLAIN THE DELAY MADE THEREAFTER DAY-BY-D AY TILL THE ACTUAL DATE OF FILING OF THE APPLICATION. IN ONE ANOTHER CASE OF ASHUTOSH BHADRA VS. JATINDER MOHAN SEAL AIR 1954 CAL.238, HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER:- THE EXISTENCE OF SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR THE EXERCISE OF DISCRETION UNDER SECTION 5 OF THE INDIAN LIMITATION ACT. SUFFICIENT CAUSE MUST MEAN A CAUSE BEYOND THE CONTROL OF THE PARTY INVOKI NG THE AID OF THE SECTION. A CAUSE FOR DELAY WHICH THE PARTY COULD HAVE AVOIDED BY THE EXERCISE OF THE CARE AND ATTENTION CANNOT BE A SUFFICIENT CAUSE. IN OTHER W ORDS, THE COURT MUST BE ABLE TO SAY, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE THAT THE DELAY WAS REASONABLE. A CAUSE ARISING FROM THE NEGLIGENCE OF THE PARTY CA NNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF SECTION 5 . I.T.A. NO. 483 /COCH/2010 6 9. VIEWED FROM THE BACK GROUND OF THE JUDICIAL PRONOUNCEMENTS, IN OUR VIEW, THE REASONS CITED BY THE ASSESSEE FOR THE DELAY CANNOT BE TAKEN AS SUFFICIENT CAUSE. ACCORDINGLY, WE DISMISS THE APPEAL IN LIMINE, AS UN ADMITTED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S DISMISSED. PRONOUNCED ACCORDINGLY ON 29/3/12 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED:29 TH MARCH, 2012 GJ COPY TO: 1. SHRI AVARA HAJI, KATTUKANDAN HOUSE, KULIKKILIYAD P.O., KOTTAPURAM, PALAKKAD DISTRICT 2. THE INCOME-TAX OFFICER, WARD-2, PALAKKAD. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-V, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, TRICHUR.. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE . BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN