VIJAY. V MEGHANI, MUMBAI V. DCIT CIR 23(3), MUMBAI

ITA 5419/MUM/2011

• Counselvise Citation: 541919914 RSA 2011
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 30-12-2013
• Assessment Year: 1996-1997
• Appeal Filed On: 20-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Assessee Lawyers: VIPUL JOSHI; ABHISHEK TILAK
• Keywords: Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ! ./I.T.A. NO.5418 AND 5419/MUM/2011 ( '#$ % / ASSESSMENT YEARS : 1994-95 AND 1996-97) SH RI VI JAY V MEGHANI, FLAT NO.1, 1 ST FLOOR, ATUR TERRACES, 19, CUFFE PARADE, MUMBAI-400005. / VS. DY . COMMISSIONER OF INCOME TAX 23(3), AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020. ( !&' / APPELLANT) .. ( ()&' / RESPONDENT) & ./ *+ ./ PAN/GIRNO.:AAFPM4172N !&' , / APPELLANT BY : S/ SHRI VIPUL JOSHI AND ABHISHEK TILAK ()&' - , /RESPONDENT BY : S H RI SAMBIT MISHRA . / - 01 / DATE OF HEARING : 30.7.2014 2 %$ - 01 /DATE OF PRONOUNCEMENT : 20.8.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE TWO SEPARATE ORDERS DATED 01-02-2000 PASSED BY LD CIT(A )-XIX, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 1994-95 AND 1996-97. IN BOTH THE YEARS, THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN REJECTING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80-O OF THE ACT. 2. BOTH THE APPEALS ARE BARRED BY LIMITATION BY 298 4 DAYS. WE HEARD THE RIVAL CONTENTIONS ON THIS PRELIMINARY ISSUE FIRST. HENCE, WE PROCEED TO ADJUDICATE THE SAME. IN A NUTSHELL, THE CONTENTION OF THE LD A.R WAS THAT THE ASSESSEE WAS FOLLOWING THE ADVICES GIVEN BY HIS CHARTERED ACCOUN TANT, WHICH ULTIMATELY TURNED I.T.A. NO.5418 AND 5419/MUM/2011 2 OUT TO BE INCORRECT, AND HENCE THE ASSESSEE SHOULD NOT SUFFER FOR THE IMPROPER ADVICES GIVEN BY HIS COUNSEL. FURTHER IT WAS SUBMI TTED THAT THE WORDS SUFFICIENT CAUSE SHOULD BE CONSTRUED LIBERALLY AND THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH FOR ADVANCING SUBSTANTIAL JUSTICE TO THE A SSESSEE. THE LD A.R FURTHER SUBMITTED THAT THE IMPROPER GUIDANCE GIVEN THE CHAR TERED ACCOUNTANT WAS SINCERELY FOLLOWED BY THE ASSESSEE AND THE SAME WOU LD CONSTITUTE SUFFICIENT CAUSE FOR CONDONING THE DELAY. THE LD A.R PLACED H IS RELIANCE ON HOST OF CASE LAW IN SUPPORT OF THE ABOVE SAID SUBMISSIONS. ON THE CONTRARY, THE LD D.R STRONGLY OPPOSED THE SUBMISSIONS MADE BY THE LD A.R AND SUBMITTED THAT THE EXPLANATIONS FURNISHED BY THE ASSESSEE CANNOT BE CO NSIDERED AS SUFFICIENT CAUSE FOR CONDONING THE DELAY. 2.1 VARIOUS CASE LAW RELIED UPON BY THE ASSESSE E ONLY LAY DOWN THE PRINCIPLE THAT THE DELAY, IF SUPPORTED BY A SUFFICIENT CAUSE, NEEDS TO BE CONDONED. HENCE, THE ASSESSEE IS REQUIRED TO SHOW THAT THERE EXISTED SUFFICIENT CAUSE IN FILING THE APPEALS BELATEDLY. HENCE, THE CONDONATION OF DELAY WOULD DEPEND UPON THE REASONS SO FURNISHED BY THE ASSESSEE TO EXPLAIN THE DELAY. GENERALLY A LIBERAL APPROACH IS REQUIRED TO BE FOLLOWED WHILE EXAMINING THE REASONS FURNISHED BY THE ASSESSEE. HENCE, THE END RESULT OF THE PRESENT QUE STION WOULD ULTIMATELY DEPEND UPON THE REASONS FURNISHED BY THE ASSESSEE. 3. WE PROCEED TO SET OUT THE FACTS SURROUNDING T HIS ISSUE FIRST AND ALSO THE REASONS FURNISHED BY THE ASSESSEE TO EXPLAIN THE DE LAY IN FILING THE IMPUGNED APPEALS. SINCE THE REASONS FURNISHED BY THE ASSESS EE FOR BOTH THE YEARS UNDER CONSIDERATION ARE IDENTICAL, FOR THE SAKE OF CONVEN IENCE, WE EXTRACT BELOW THE I.T.A. NO.5418 AND 5419/MUM/2011 3 SUBMISSIONS MADE BY THE ASSESSEE IN THE AFFIDAVIT D ATED 19-07-2011 FILED BEFORE US FOR ASSESSMENT YEAR 1994-95. 3) I SAY THAT I HAD RECEIVED THE ORDER DATED 01.02 .2000 PASSED BY THE CIT (A) ON 20.03.2003. I SAY THAT FOR THE REASONS M ENTIONED BELOW, THE APPEALS ARE BEING FILED ON 20.07.2011. THEREFORE, T HERE IS A DELAY OF, TWO THOUSAND NINE HUNDRED AND EIGHTY FOUR (2,984) DAYS IN FILING THE APPEALS BEFORE THE TRIBUNAL. 4) I SAY THAT DURING THE MATERIAL PERIOD, I WAS EMP LOYED WITH BHF BANK AG OF GERMANY, AS THEIR REPRESENTATIVE IN MUMB AI. AS I WAS RENDERING MY SERVICES FROM INDIA TO A FOREIGN EMPLO YER I HAD CLAIMED DEDUCTION UNDER SECTION 80-0 OF THE ACT WITH RESPEC T TO THE SALARY EARNED BY ME FROM MY EMPLOYER. I SAY THAT MY CLAIM OF DEDUCTION UNDER SECTION 80- 0 OF THE ACT WAS DISALLOWED-BY THE A.0. FOR A.Y. 19 93- 94 AND CONFIRMED BY THE CIT (A). AGAINST THE ORDER OF THE CIT (A), I HAD PREFERRED AN APPEAL BEFORE THE TRIBUNAL. 5) I SAY THAT ALL MY INCOME TAX AFFAIRS INCLUDING T HE APPEAL MATTERS WERE HANDLED BY MY CHARTERED ACCOUNTANT M/S. RAJESH RAJEEV AND ASSOCIATES FROM 1997 TO NOVEMBER 2006, AS THEY SUBS TANTIALLY DISCONTINUED THEIR TAX PRACTICE WITH INDIVIDUALS AN D STARTED TO PRACTICE WITH ONLY CORPORATE CLIENT. THEREAFTER, ONE CHARTERED AC COUNTANT MR. SUNIL CHAUDHARI TOOK OVER ALL MY TAXATION AFFAIRS. HOWEVE R, IN APRIL 2007 MR. CHAUDHARI UNFORTUNATELY EXPIRED IN A ROAD ACCIDENT. THEREAFTER, I APPOINTED M/S. P.A. DHANBHOORA & CO WHO WAS HANDLIN G MY TAXATION WORK FROM MAY 2007 TILL FEBRUARY 2011. 1 SAY THAT A S I WAS IN FULL TIME EMPLOYMENT WITH THE BANK AND AS I AM NOT WELL VERSE D WITH INCOME TAX ASPECTS, I HAVE ALWAYS COMPLETELY RELIED UPON MY CH ARTERED ACCOUNTANTS FOR ATTENDING TO ALL MY TAX MATTERS INC LUDING THE REGULAR INCOME TAX, ASSESSMENT AND APPEAL MATTERS AND ADVIS ING ME IN THAT REGARD. 6) I SAY THAT THE ASSESSING OFFICER ('THE A.O. ') PASSED THE ASSESSMENT ORDER FOR A.Y. 1994-95 AND A.Y. 1 996-97 ON 25.03.1997 AND 25.03.1999, RESPECTIVELY, DENYING THE CLAIM U/S 80-0 OF THE ACT. FOR THE A.Y. 1994-95 AND 1996 -97, I FILED THE APPEAL BEFORE THE CIT (A) ON 09.04.1997 AND 29.04.1999, RESPECTIVELY. THE CIT (A) DISMISSED THE APPEAL FILED BEFORE HIM FOR BOTH THE YEARS. 7) I SAY THAT WHEN MY APPEAL FOR A.Y.1994-95 AND A. Y. 1996 - 97 WERE DISMISSED BY THE CIT (A), MY THEN CHARTERED ACCOUNTANT M/S. RAJESH RAJEEV AND ASSOCIATES ADVISED ME NOT TO FILE FURTHER APPEALS BEFORE THE TRIBUNAL FOR BOTH THE YEARS TO AVOID MUL TIPLICITY OF LITIGATION AS THE ISSUE OF SEC. 80-O INVOLVED IN THE APPEALS FOR AY-1994-95 AND 1996- 97 WAS IDENTICAL TO THE ISSUE INVOLVED IN THE APPEA L FILED BY ME BEFORE THE I.T.A. NO.5418 AND 5419/MUM/2011 4 TRIBUNAL FOR AY 1993-94 WHICH WAS THEN PENDING BEF ORE TRIBUNAL. I WAS FURTHER ADVISED BY MY CHARTERED ACCOUNTANT THAT AFT ER ADJUDICATION OF THE APPEAL FOR AY 1993-94 BY THE TRIBUNAL, I COULD MO VE A RECTIFICATION APPLICATION BEFORE THE AO TO BRING THE ASSESSMENT O RDER IN CONFORMITY WITH THE DECISION OF THE TRIBUNAL. 8). I SAY THAT THE HONBLE TRIBUNAL, VIDE ORDER DAT ED 29.6.2006, RESTORED THE MATTER BACK TO THE FILE OF THE AO TO E XAMINE THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80-O OF THE ACT. THEREAFTER, THE AO PASSED AN ORDER ON 19.2.2009 ALLOWING MY CLAIM OF D EDUCTION UNDER SECTION 80-O OF THE ACT. 9) I SAY THAT THE ORDER GIVING EFFECT TO THE TRIBUN AL'S ORDER WAS RECEIVED BY ME ON SOMEWHERE IN MAY 2009. IMMEDIATEL Y AFTER RECEIVING THE ORDER OF THE A.O., I PREFERRED RECTIFICATION AP PLICATION BEFORE THE A.O. TO RECTIFY THE ORDER FOR A.Y. 1994-95 AND A.Y. 1996 -97 ON 15.07.2009. (ANNEXED HERETO AND MARKED AS ANNEXURE - 'A' IS THE COPY OF THE RECTIFICATION APPLICATION DATED 15.07.2009) 10) I SAY THAT AFTER CONTINUOUS FOLLOW UP WITH THE DEPARTMENT AND ALSO WRITING LETTER UNDER THE RIGHT TO INFORMATION ACT, FINALLY, VIDE ORDER DATED 14.05.2010, THE A.0. REJECTED THE RECTIFICATI ON APPLICATION. AFTER RECEIPT OF THE ORDER, I WAS FOLLOWING UP CONTINUOUS LY WITH MY CHARTERED ACCOUNTANT M/S. RAJESH RAJEEV AND ASSOCIATES, WHO W ERE HANDLING MY APPEAL FOR A.Y. 1993-94 AND WHO HAD ADVISED ME PREF ER RECTIFICATION APPLICATION BEFORE THE A.O., FOR FURTHER COURSE OF ACTION. ON 18.04.2011, I RECEIVED A LETTER FROM M/S. RAJESH RAJEEV AND ASSOC IATES WHERE IN THEY MENTIONED THAT THE DEPARTMENT WAS NOT CORRECT IN RE JECTING MY RECTIFICATION APPLICATION AND ADVISED ME TO FOLLOW UP THE MATTER WITH THE DEPARTMENT. (ANNEXED HERETO AND MARKED AS ANNEXURE - 'B' IS THE COPY OF THE LETTER DATED 15.04.2011 RECEIVED FROM M /S. RAJESH RAJEEV & ASSOCIATES CHARTERED ACCOUNTANT) 11) I SAY THAT, THEREAFTER, I CONSULTED ANOTHER CHA RTERED ACCOUNTANT, MR. YATIN K. DESAI, WHO, AFTER GOING THROUGH THE EN TIRE HISTORY OF MY CASE, ADVISED ME TO FILE APPEALS BEFORE THE TRIBUNAL AGAI NST THE ORDERS OF THE CIT(A), ALONG WITH APPLICATION FOR CONDONATION OF D ELAY. 12) I SAY THAT, IT WAS UNDER THESE FACTS AND CIRCUM STANCES, WHICH WERE BEYOND MY CONTROL, THAT THE APPEALS COULD NOT BE FI LED BEFORE THE HON'BLE TRIBUNAL WERE NOT FILED WITHIN THE LIMITATION PERIO D. 13) I SAY THAT I AM A LAW ABIDING CITIZEN AND NOWHE RE IN PAST I WAS GUILTY OF ANY NEGLIGENCE OR LATCHES FOR ANY OF MY I NCOME TAX OBLIGATIONS. I SAY THAT ALL THAT HAS BEEN STATED ABOVE IS TRUE T O THE BEST OF MY KNOWLEDGE AND BELIEF SOLEMNLY AFFIRMED ON THIS 19 TH DAY OF JULY, 2011 I.T.A. NO.5418 AND 5419/MUM/2011 5 4. IN SUPPORT OF THE AVERMENTS MADE IN THE AFFIDAVI T, THE ASSESSEE HAS FILED A LETTER DATED 15-04-2011 FURNISHED BY M/S RAJESH RAJ EEV & ASSOCIATES, CHARTERED ACCOUNTANTS AND ALSO AN AFFIDAVIT DATED 22-08-2013 FURNISHED BY ONE OF THE PARTNERS OF THE ABOVE SAID CA FIRM. FOR THE SAKE O F CONVENIENCE, WE EXTRACT BELOW THE CONTENTS OF THE SAID AFFIDAVIT. 4. THAT FOR ASSESSMENT YEARS 1991-92 AND 1993-94, THE APPELLANT HAD CLAIMED DEDUCTION UNDER SECTION 80-0 FOR THE SA LARY INCOME EARNED BY HIM. HOWEVER, THE CLAIM OF THE APPELLANT WAS DISALLOWED BY THE ASSESSING OFFICER ['A.O.'] FOR THE ASSESSMENT Y EAR 1993-94. THE APPEALS WERE ALSO DISMISSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). AGAINST THE ORDER OF THE CIT(A), THE APP ELLANT FILED APPEALS BEFORE THE HON'BLE INCOME-TAX APPELLATE TRIBUNAL [' ITAT'] BEING I.T.A. NOS. 4398/MUN/1997 AND 4399/MUM/1997. 5. I SAY THAT WHILE THE APPEAL WAS PENDING BEFORE I TAT FOR ASSESSMENT YEAR 1993-94, THE A.O. AS WELL AS CIT (A) DISALLOWE D THE CLAIM OF THE APPELLANT UNDER SECTION 80-0 FOR A.Y. 1994-95 AND A .Y.1996-97 ALSO. 6. I SAY THAT WHEN THE APPELLANT APPROACHED ME TO S EEK MY ADVICE ON THE FURTHER COURSE OF ACTION, I ADVISED HIM THAT SINCE HE WAS AN INDIVIDUAL, HAVING LIMITED RESOURCES TO INDIVIDUALLY PURSUE APP EALS FOR EACH YEAR IN THE ITAT AND SINCE THE FACTS IN ALL THE SUBSEQUENT YEAR S WERE IDENTICAL TO THE FACTS IN ASSESSMENT YEAR 1993-94 WHICH WERE ALREADY IN APPEAL BEFORE ITAT, HE NEED NOT GO FOR REPEATED APPEALS FOR ASSESSMENT YEARS 1994-95 AND 1996-97 AND INSTEAD FILE A RECTIFICATION OR REVIEW APPLICATION BEFORE THE A.O, ONCE THE ISSUE IS SETTLED BY THE ITAT AND THE ORDE R GIVING EFFECT TO ITAT ORDER IS PASSED FOR A.Y. 1991-92 AND 1993-9 4. 7. I SAY THAT IT WAS UNDER MY ADVICE THAT THE APPEL LANT DID NOT FILE APPEALS WITHIN THE PRESCRIBED TIME-LIMIT OF 60 DAYS BEFORE ITAT FOR ASSESSMENT YEARS 1994-95 AND 1996-97, BUT RECTIFICA TION APPLICATION. I SAY THAT ALL THAT HAS BEEN MENTIONED ABOVE IS TRU E TO THE BEST OF MY KNOWLEDGE AND BELIEF. SOLEMNLY AFFIRMED ON THIS 22 ND DAY OF AUG 2013 SD. DEPONENT