The Poonjar Service Co-op bank Ltd, Kottayam V. ITO, Kottayam

ITA 517/COCH/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4590 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 14-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 28-10-2009
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Assessee Lawyers: P BALAKRISHNAN ADV
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NO. 517COCH/ 2009 ASSESSMENT YEAR: 2005-06 THE POONJAR SERVICE CO-OP BANK LTD., POONJAR. [PAN:AAAAP 4839K] VS. THE INCOME-TAX OFFICER, WARD-3, KOTTAYAM. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI P.BALAKRISHNAN, ADV.-AR REVENUE BY SHRI T.J.VINCENT, DR O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME-TAX, KOTTAYAM (`CIT FOR SHORT) DATED 4.2.20 09 PASSED UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961 (`THE ACT HEREINAFTER), AND T HE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2005-06. 2. AT THE VERY OUTSET, IT WAS OBSERVED BY THE BENCH THAT THERE IS A DELAY OF 206 DAYS IN FILING OF THE APPEAL. THE SAME, FILED ON 28/10/ 2009, WAS ACCOMPANIED BY A CONDONATION PETITION DATED 27/10/2009. THE SAME IS FURTHER SUPPORTED BY A SWORN AFFIDAVIT DATED 17/11/2009 BY SHRI K.A.THOMAS, SON OF THOMAS. THE APPEAL BEING ATTENDED BY A SUBSTANTIAL DELAY, WAS HEARD QUA THE ASPECT OF CONDONATION OF DELAY, AS, IN THE EVENT OF IT FAILING THEREON, IT WOULD NOT BE MA INTAINABLE IN LAW. 3.1 THE REASONS FOR THE DELAY ARE STATED AT PARAS 3 AND 4 OF THE AFFIDAVIT, WHICH ARE REPRODUCED AS UNDER:- THE ORDER OF THE COMMISSIONER OF INCOME TAX PASSED UNDER SEC. 263 WAS RECEIVED BY US ON 04.02.2009. HOWEVER, THE ORDER OF THE COMMISS IONER OF INCOME TAX WAS MISPLACED BY THE OFFICE STAFF. ON RECEIPT OF THE SUBSEQUENT O RDER DATED 29.09.2009 PASSED BY THE ASSESSING OFFICER, EFFORTS WERE MADE TO LOCATE THE CERTIFIED COPY OF THE ORDER OF THE ITA.NO.517/COCH/2009 2 COMMISSIONER OF INCOME TAX AND THE ORDER COULD BE L OCATED ONLY LAST WEEK. THEREFORE THE APPEAL IS BEING PRESENTED ONLY TODAY. IN THE C IRCUMSTANCES THERE IS A DELAY OF 206 DAYS IN FILING THE ABOVE APPEAL. IT IS RESPECTFULLY SUBMITTED THAT THE DELAY OCCASIONED IS NOT DUE TO ANY WILFUL NEGLIGENCE OR LACHES ON THE P ART OF THE APPELLANT, BUT SOLELY FOR THE REASONS STATED ABOVE. THE SAID DELAY THEREFORE DES ERVES TO BE CONDONED IN THE INTERESTS OF JUSTICE. 3.2 THE SAME, AS APPARENT, ATTRIBUTE THE DELAY TO T HE MISPLACEMENT OF THE IMPUGNED ORDER BY THE ASSESSEES OFFICE STAFF, THE EFFORTS T O LOCATE WHICH WERE MADE ONLY ON THE RECEIPT OF THE SUBSEQUENT ORDER BY THE ASSESSING OF FICER DATED 29/9/2009. CLEARLY, THE ASSESSEES CONDUCT IS MARKED BY NEGLIGENCE THROUGHO UT. FIRSTLY, IS THE ADMITTED FACT OF THE MISPLACEMENT OF THE IMPUGNED ORDER BY THE OFFIC E STAFF, WHICH THOUGH IS NOT PROVED. THAT BEING THE CASE, SINCERE EFFORTS TO LOCATE THE SAME OUGHT TO HAVE BEEN INITIATED RIGHT AWAY, PARTICULARLY AS THE ORDER WAS PROPOSED TO BE AGITATED IN FURTHER APPEAL. FURTHER, IF THE SAME PROVED FUTILE, AND WHICH COULD BE APPARENT WITHIN A FEW DAYS TIME, EFFORTS TO OBTAIN A CERTIFIED COPY OF THE ORDER OUGHT TO HAVE BEEN COMMENCED WITH THE DEPARTMENT, AND WHICH, AGAIN, WERE NOT DONE. IT IS ONLY ON THE RECEIPT OF THE REVISED ASSESSMENT ORDER AT THE END OF SEPTEMBER, 2009, THAT THE ASSESSEE ST ARTED TO LOCATE THE ORDER, AND WHICH TOOK A COUPLE OF WEEKS, BEARING OUT THE FACT THAT I F THE EFFORTS HAD BEEN COMMENCED IN TIME, THERE WOULD HAVE BEEN NO, OR AT THE MOST A MA RGINAL, DELAY, I.E., OVER THE TIME PERIOD OF 60 DAYS STATUTORILY ALLOWED FOR THE FILING OF TH E SECOND APPEAL BEFORE THE TRIBUNAL. WE ALSO OBSERVE INCONSISTENCY IN THE AFFIDAVIT, WHICH IS TO BE DISCOUNTENANCED, BEING A SWORN STATEMENT AS TO FACT TO THE BEST OF ONES KNOWLEDGE . IT SPEAKS OF THE IMPUGNED ORDER HAVING BEEN LOCATED `LAST WEEK, IMPLYING THAT THE ORDER WAS LOCATED SOMETIME BETWEEN 7 TH NOVEMBER AND 17 TH NOVEMBER, 2009, I.E., ALLOWING A MARGIN OF A COUPL E OF DAYS IN STATING THE SAID TIME. HOWEVER, THIS IS NOT TRUE A S THE APPEAL IN THE INSTANT CASE, ALONG WITH THE IMPUGNED ORDER, STOOD FILED ON 28/10/2009. 4. IN VIEW OF THE FOREGOING, IN OUR VIEW, THE IMPUG NED DELAY IN THE PRESENT CASE HAS OCCURRED ON ACCOUNT OF WILFUL NEGLIGENCE, AND THE A SSESSEE IS GUILTY OF LACHES. THE ASSESSEE, BEING ONLY AWARE OF THE MISPLACEMENT OF I TS ORDER, HAD SHOWN DISREGARD TOWARD ITS STATUTORY OBLIGATIONS. THE LAW REQUIRES AN ASSE SSEE, WHO WISHES TO AGITATE ITS RIGHTS, TO SHOW RESPECT FOR ITS NORMS, I.E., BE VIGILANT IN PR OSECUTING AND CONTESTING ITS RIGHTS ITA.NO.517/COCH/2009 3 THROUGH THE DUE PROCESS OF LAW, WHILE WE FIND NO RE ASONABLE CAUSE FOR THE IMPUGNED DELAY BY 7 MONTHS. THE ASSESSEES CONDONATION APPLI CATION IS WITHOUT MERIT, AND IS ACCORDINGLY REJECTED. THE APPEAL, CONSEQUENTLY, IS DISMISSED AS NOT MAINTAINABLE. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D IN LIMINE AS NOT MAINTAINABLE. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST APRIL, 2011 GJ COPY TO: 1. THE POONJAR SERVICE CO-OP BANK LTD., NO. 3963, P OONJAR P.O., MEENACHIL TALUK, KOTTAYAM. 2. THE INCOME-TAX OFFICER, WARD-3, KOTTAYAM. 3. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 4. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 5. GUARD FILE. BY ORDER (ASSISTANT REGI STRAR) ITA.NO.517/COCH/2009 4