Dr Damodar Rout, Chennai V. DCIT, Trivandrum

ITA 489/COCH/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4593 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 06-06-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 18-08-2010
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: GOPINATH MENON
• Keywords: Condonation of delay
• Section: 263

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.489 /COCH/2010 ASSESSMENT YEAR : 2004-05 DR. DAMODAR ROUT, PLOT NO. 1264, 4 TH STREET, JAYALAKSHMI NAGAR, KATTUPAKKAM, CHENNAI-600 056 [PAN:ACKPR 9917K] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(2), TRIVANDRUM. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI GOPINATH MENON, ADV. REVENUE BY SMT. SUSAN GEORGE VARGHESE, SR DR DATE OF HEARING 06/06/2013 DATE OF PRONOUNCEMENT 16/08/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE VALIDITY OF THE REVISION ORDER DATED 24.03.2009 PASSED BY LD CIT, THIRUVANAN THAPURAM U/S 263 OF THE ACT FOR THE ASSESSMENT YEAR 2004-05. THE APPEAL IS BARRED BY LIMITATION BY 439 DAYS. 2. THE ASSESSEE HAS FILED A PETITION REQUESTING THE BENCH TO CONDONE THE DELAY AND THE SAME READS AS UNDER:- I, DR. DAMDODAR ROUT, SON OF LATE DIBAKAR ROUT, AG ED 66 YEARS, RESIDING AT PLOT NO. 1264, 4 TH STREET, JAYALAKSHMI NAGAR, KATTUPAKKAM, CHENNAI 60 0 056 DO HEREBY SOLEMLY AFFIRM AND STATE AS FOLLOWS: I.T.A. NO. 489/COCH/2010 2 1. I AM THE PETITIONER PRACTICING AS SENIOR NEUROSU RGEON AT THE SRI RAMACHANDRA HOSPITAL AND ALSO PROFESSOR IN THE DEPA RTMENT OF NEURO SCIENCE AT SRI RAMACHANDRA MEDICAL COLLEGE AND RESE ARCH INSTITUTE (SRMC & RI), A THEN DEEMED UNIVERSITY, WHICH IS RUN BY SR I RAMACHANDRA EDUCATIONAL & HEALTH TRUST, CHENNAI. I AM CONVERSAN T WITH THE FACTS OF THE CASE AND AM SWEARING THIS AFFIDAVIT. 2. FOR THE ASSESSMENT YEAR 2004-05, THE COMMISSION ER OF INCOME TAX, TRIVANDRUM INVOKED THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT 1961 PASSED AN ORDER ON 24-3-2009, RECEIVED BY THE ASSESSEE ON 6.4.2009 BY SETTING ASIDE THE ORDER OF THE ASSESSING OFFICER BY DISALLOWING EXPENSES CLAIMED BY THE PETITIONER FROM OUT OF PROFESSIONAL INCOME UNDER THE PRETEXT THAT THE PETITIONER WAS RECEIVING SALARY AS A TEACH ING FACULTY, BY TREATING BOTH THE INCOME AS SALARIES. 3. GIVING EFFECT TO THE ORDER OF COMMISSIONER OF I NCOME TAX, TRIVANDRUM U/S. 263 OF THE INCOME TAX ACT, THE ASSISTANT COMMI SSIONER OF INCOME TAX, PASSED AN ORDER DATED 12.11.2009 (RECEIVED BY THE P ETITIONER ON 19.11.2009) REVISING THE ORIGINAL ASSESSMENT ORDER WITH A DEMAND OF RS. 5,20,790/- AFTER GIVING CREDIT FOR THE PREPAID TAXE S AMOUNTING TO RS. 4,13,416/-. 4. THE PETITIONER APPEALED BEFORE THE COMMISSIONER OF INCOME TX (APPEALS), TRIVANDRUM, AGAINST THE ABOVE ORDER OF T HE ASSISTANT COMMISSIONER OF INCOME TAX ON 9.12.2009, WITHIN THE TIME ALLOWED UNDER THE ACT. 5. THE PETITIONER WAS UNDER THE IMPRESSION THAT T HE APPEAL LIED BEFORE THE CIT APPEALS, TRIVANDRUM AND HENCE FILED THE APPEAL ON TIME AND NOW AFTER GETTING THE LEGAL ADVICE, GOT TO KNOW THAT THE ORDE R OF CIT, TRIVANDRUM U/S 263 HAS TO BE PREFERRED BEFORE TRIBUNAL WITHIN 60 D AYS FROM THE DATE OF THE SAID ORDER. 6. WHILE THE ORDER UNDER CIT, TRIVANDRUM U/S 263 WAS SERVED ON 6.4.2009 AND AN APPEAL AGAINST THE SAME SHOULD HAVE BEEN FIL ED ON OR BEFORE 5.6.2009. 7. YOUR PETITIONER IS NOW FILING AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, ERNAKULAM NOW WITH A DELAY O F 439 DAYS. 8. YOUR PETITIONER SUBMITS THAT THE DELAY WAS NOT INTENTIONAL, BUT WAS ON ACCOUNT OF AN IMPRESSION THAT THE APPEAL LIED BEFOR E CIT APPEALS, I.T.A. NO. 489/COCH/2010 3 TRIVANDRUM WHICH WAS PROMPTLY MADE. ALSO, YOUR PET ITIONER WAS ON TRAVEL AND WAS ENGAGED IN HECTIC PROFESSIONAL COMMITMENTS. 9. YOUR PETITIONER PRAYS THAT THE DELAY MAY BE C ONDONED AND THE APPEAL BE CONSIDERED. 3. WE HEARD THE PARTIES ON THE PRELIMINARY ISSUE OF CONDONATION OF DELAY. THE ONLY REASON CITED BY THE ASSESSEE IS THAT HE CA ME TO KNOW OF THE FACT THAT THE APPEAL AGAINST THE ORDER OF CIT PASSED U/S 263 OF THE ACT HAS TO BE PREFERRED BEFORE THE TRIBUNAL WITHIN 60 DAYS FROM THE DATE OF SAID ORDER. THUS, IT IS SEEN THAT THE ASSESSEE DID NOT CITE ANY VALID REASON FOR FILING APPEAL AGAINST THE REVISION ORDER PASSED BY THE LD ADMINISTRATIVE COMM ISSIONER. IT IS NOT THE CASE OF THE ASSESSEE THAT HE WAS NOT ASSISTED BY ANY PRO FESSIONAL IN FILING RETURNS OF INCOME, REPRESENTING THE MATTERS BEFORE THE ASSESSI NG OFFICER AND FILING APPEALS BEFORE LD CIT(A) AGAINST THE ASSESSMENT ORDER. FUR THER, IT IS SEEN THAT THE ASSESSEE IS A SENIOR NEURO SURGEON AT ONE OF THE LE ADING HOSPITALS OF THE COUNTRY AND HENCE IT IS BEYOND OUR COMPREHENSION THAT HE DI D NOT SEEK PROPER LEGAL ADVICE IN THIS MATTER. 4. AT THIS JUNCTURE, WE FEEL IT APPROPRIATE TO R EFER 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 DISTRIBUTOR S 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 D ELAY COULD 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 A S UNDER: THAT IN THE ABSENCE OF MATERIAL PARTICULARS AS TO WHY DELAY HAD BEEN CAUSED, THE DELAY COULD NOT BE CONDONED BY MERELY A CCEPTING THE EXPLANATION THAT THE DELAY OCCURRED IN THE GOVERNME NT OFFICE. I.T.A. NO. 489/COCH/2010 4 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 SUFFI CIENT CAUSE WITHIN THE MEANING OF SECTION 5 OF LIMITATION ACT. WHERE NO N EGLIGENCE NOR INACTION NOR WANT OF BONA FIDES CAN BE IMPUTED TO THE APPLIC ANT, A LIBERAL CONSTRUCTION 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 A ND MUST EXPLAIN THE DELAY MADE THEREAFTER DAY-BY-DAY TILL THE ACTUA L 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 UN DER:- THE EXISTENCE OF SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR THE EXERCISE OF DISCRETION UNDER SECTION 5 OF THE INDIA N LIMITATION ACT. SUFFICIENT CAUSE MUST MEAN A CAUSE BEYOND THE CON TROL OF THE PARTY INVOKING THE AID OF THE SECTION. A CAUSE FOR DELAY WHICH THE PARTY COULD HAVE AVOIDED BY THE EXERCISE OF THE CARE AND ATTENT ION CANNOT BE A SUFFICIENT CAUSE. IN OTHER WORDS, THE COURT MUST B E ABLE TO SAY, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE T HAT THE DELAY WAS REASONABLE. A CAUSE ARISING FROM THE NEGLIGENCE OF THE PARTY CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING O F SECTION 5 . 5. VIEWED FROM THE BACK GROUND OF THE JUDICIAL PRONOUNCEMENTS, IN OUR VIEW, THE REASONS CITED BY THE ASSESSEE FOR THE DELAY CAN NOT BE TAKEN AS SUFFICIENT CAUSE. ACCORDINGLY, WE DISMISS THE APPEAL IN LIMI NE, AS UNADMITTED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 16-08-20 13. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 16TH AUGUST, 2013 I.T.A. NO. 489/COCH/2010 5 GJ COPY TO: 1. DR. DAMODAR ROUT, PLOT NO. 1264, 4 TH STREET, JAYALAKSHMI NAGAR, KATTUPAKKAM, CHENNAI-600 056 2. . THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRC LE-1(2), TRIVANDRUM 3. THE COMMISSIONER OF INCOME-TAX, THIRUVANANTHAP URAM.. 4. . D.R., I.T.A.T., COCHIN BENCH, COCHIN. 5. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR ) I.T.A.T, COCHIN