Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0590 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 6 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
29-05-2013
Assessment Year
2006-2007
Appeal Filed On
19-10-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 497/AGRA/2012 ASSTT. YEAR : 2006-07 SHRI SHYAM KHANDELWAL, VS. INCOME-TAX OFFICER, PROP. M/S. K. GUPTA & CO. RANGE 1(2), GWALIOR. NEAR HARI NIRMAL TALKIES, NAI SADAK, LASHKAR, GWALIOR. (PAN: AKCPK 1365 O) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 29.05.2013 DATE OF PRONOUNCEMENT OF ORDER : 31.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GWALIOR DATED 25.04.2012 FOR THE ASSESSMENT YEAR 20 06-07. 2. ACCORDING TO COLUMN NO. 9 OF APPEAL PAPERS (FORM NO. 36), THE ASSESSEE HAS MENTIONED 30.04.2012 THE DATE OF COMMUNICATION OF T HE ORDER APPEALED AGAINST. HOWEVER, THE APPEAL IS RECEIVED IN THE OFFICE OF TH E TRIBUNAL ON 19.10.2012. ACCORDING TO THE OFFICE, THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 112 DAYS. THE ASSESSEE WAS INTIMATED OF THE DEFECT IN THE APPEAL PAPERS. THE ASSESSEE FILED ITA NO. 497/AGRA/2012 2 AFFIDAVIT STATING THEREIN THAT THE DELAY IN FILING OF APPEAL FOR THE ASSESSMENT Y EAR 2006-07 OCCURRED DUE TO MISPLACEMENT OF CIT(A) ORDE R IN MY OFFICE. 3. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ABOVE AVERMENT MADE IN THE AFFIDAVIT OF THE ASSESSEE. ON THE OTHER HAND, THE L D. DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THAT THE DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE AND NO SUPPORTING EVIDENCES HAVE BEEN FILED. THEREF ORE, DELAY SHOULD NOT BE CONDONED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY JUSTIFICATION TO CONDONE THE DELAY IN FILING THE APPEAL BEYOND TH E PERIOD OF LIMITATION. THE ASSESSEE IN THE AFFIDAVIT MERELY STATED THAT DUE TO MISPLACEMENT OF THE IMPUGNED ORDER IN HIS OFFICE, THE APPEAL COULD NOT BE FILED ON TIME. IT IS VERY VAGUE AND GENERAL REASON AND IS NOT SUPPORTED BY ANY EVIDENCE OR MATERIAL. NO DATE IS GIVEN AS TO WHEN THE IMPUGNED ORDER WAS MISPLACED IN HIS OFFICE AND AS TO WHEN THE IMPUGNED ORDER WAS AGAIN FOUND BY THE ASSESSEE IN H IS OFFICE. THE APPEAL IS FILED ON THE BASIS OF COPY OF THE IMPUGNED ORDER, IN WHIC H ON THE LEFT SIDE, THE ASSESSEE HAS NOTED THAT THE IMPUGNED ORDER IS RECEIVED ON 30 .04.2012. THE ASSESSEE HAS NOT EXPLAINED IN THE AFFIDAVIT AS TO HOW HE GOT THE PHO TOCOPY OF THE ORDER AND HOW THIS APPEAL HAS BEEN PREFERRED WITHOUT HAVING THE CERTIF IED COPY OF THE IMPUGNED ORDER SUPPLIED TO HIM BY THE OFFICE OF THE LD. CIT(A). IN THE ABSENCE OF ANY SPECIFIC EXPLANATION AND THE MATERIAL ON RECORD, THE GENERAL AND VAGUE EXPLANATION OF THE ASSESSEE WOULD NOT PROVE THAT THE ASSESSEE HAS ANY SUFFICIENT CAUSE FOR FAILURE TO ITA NO. 497/AGRA/2012 3 FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. I T WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. VS. ITO, 118 IT R 873, THE CALCUTTA HIGH COURT HELD THAT A TRIBUNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE C ASE OF VEDABAI ALIA VIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL, 253 ITR 798 (SC), WHERE IT WAS HELD THAT WHILE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING TH E APPEAL WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROAC H. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVED THAT WHEREAS IN THE FORMER , CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NOW, IN THE PRESENT CASE DELAY IS NOT OF A FEW DAYS BUT OF ABOUT FOUR MONTHS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLA NATION/REASON FOR THE DELAY. IN THE CASE OF CIT VS. RAM MOHAN KABRA, 257 ITR 773, T HE HONBLE PUNJAB & HARYANA HIGH COURT HAS OBSERVED THAT WHERE THE LEGI SLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DE LAY AS WELL AS, SUCH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASO NS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW T HAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE ITA NO. 497/AGRA/2012 4 CONSEQUENCES. IN THIS CASE DELAY FOR FILING THE APP EAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF ASSTT. CIT VS. TAGGAS INDUSTRIES DEVELOPMENT LTD., 80 ITD 21 (CAL.), TRIBUNAL, CALCUTTA BENCH, CALCUTT A DID NOT CONDONE THE DELAY FOR FILING THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DUE TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, WE HOLD THAT ASSESSEE FAILED TO EXPLAIN DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. 5. CONSIDERING THE ABOVE DISCUSSION AND IN THE ABSE NCE OF ADEQUATE EXPLANATION AND MATERIAL ON RECORD, WE HOLD THAT THE ASSESSEES APPEAL IS TIME BARRED AND IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED IN LIMINE BEING TIME BARRED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY
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