RAKSHA CONSTRUCTION, MUMBAI V. ITO WD 17(3)(1), MUMBAI

ITA 5441/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1774 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHI RAMA KARTHIKEY S
• Keywords: Condonation of delay; TDS
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH, MUMBAI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ./ I.T.A. NO. 5441/MUM/2016 ( / ASSESSMENT YEAR : 2010-11) M/S. RAKSHA CONSTRUCTION 272, ROOM NO. 506, NARSI NATHA STREET, MASJID WEST, MUMBAI - 400009 / VS. ITO WD 17(3)(1) 3 RD & 14 TH FLOOR, PRATISHTHA BHAVAN, M. K. ROAD, DHOBI TALO, MUMBAI 400020 ./ ./ PAN/GIR NO. : AAFFR4099D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI ABHI RAMA KARTHIKEY S., SR. D.R. / DATE OF HEARING 04/06/2019 !'# / DATE OF PRONOUNCEMENT 06/06/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-28, MUMBAI, (CIT(A) IN SHORT), DATED 10 .06.2016 ARISING IN THE ASSESSMENT ORDER DATED 28.03.2013 PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2010-11. ITA NO. 5441/MUM/16 [ITO VS. M/S. RAKSHA CONSTRUCTION] A.Y. 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY REVENUE READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF AO FOR CONSIDE RING THE FACT THAT MOBILIZATION ADVANCE OF RS.27,75,669/- IS TREA TED AS LOANS AND LIABILITY AND NOT AS REVENUE INCOME AS PER CONTRACT , RELEVANT PROOFS OF WHICH WAS SUBMITTED, AND EVEN IF AO WANTS TO CON SIDER IT AS INCOME WE WILL HAVE TO DELETE THE SAME AMOUNT FROM PRECEDING ASSESSMENT YEARS AS IT WAS CONSIDERED AS INCOME AND RELEVANT PROOFS HAVE BEEN SUBMITTED FOR THE SAME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN CONSIDERING THAT THE ASSESSEE HAD ALREADY SUBMITTED THE RELEVANT PROOFS THAT WE HAVE NOT RECEIVED AS RS.7,7 5,775/- FROM M/S EMERSONS PROCESS MANAGEMENT. WE WOULD LIKE TO REQU EST THE AO TO GET THE DETAILS FROM THE PARTY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN OBSERVING AND IN HOLDING THAT THE DISALLOW ANCE OF EXPENSES TO BE DELETED BECAUSE WE SUBMIT THE RELEVANT BILLS TO THE CLIENT ON REGULAR INTERVAL BASIS BUT CLIENT ALWAYS FAIL TO MA KE PAYMENT AND NOT PAID TO US AS PER AGREEMENT TERMS AND CONDITION S. HENCE WE CONSIDER ONLY RECEIPTS AND PAYMENTS AS RECEIVED AND PAID BY US ON ACTUAL BASIS, AS WE FOLLOW CASH SYSTEM OF ACCOUNTIN G. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN OBSERVING AND IN HOLDING THAT WE HAVE MADE PAYMENT TO LABORERS AFTER MAKING PROPER PRECAUTIONS AS PER PRO VISIONS OF INCOME TAX. WE COLLECTED PAN NO., AND ALSO HAVE DE DUCTED TDS AS PER RULES OF INCOME TAX ACT, 1961. HENCE, THE SAME CANNOT BE DISALLOWED. 3. WHEN THE MATTER WAS CALLED FOR HEARING, NONE A PPEARED ON BEHALF OF THE ASSESSEE. IT IS SEEN FROM THE ORDER SHEET T HAT MULTIPLE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE ONE AFTER OTHER TO DEFEND ITS APPEAL, HOWEVER, THE ASSESSEE HAS CHOSEN TO AVOID T HE PROCEEDINGS BEFORE THE TRIBUNAL. THEREFORE, LEFT WITH NO ALTER NATIVE THE MATTER IS PROCEEDED EX PARTE IN THE ABSENCE OF THE ASSESSEE. 4. IT IS BORNE OUT FROM THE RECORD THAT THE ASSESSE E HAS FILED THE APPEAL BELATEDLY BEFORE THE TRIBUNAL BY NEARLY 608 DAYS. THE ASSESSEE HAS SOUGHT TO SUPPORT THE DELAY BY PLACING AN AFFID AVIT. THE CONTENTS OF THE AFFIDAVIT READ AS UNDER: ITA NO. 5441/MUM/16 [ITO VS. M/S. RAKSHA CONSTRUCTION] A.Y. 2010-11 - 3 - AFFIDAVIT IN SUPPORT OF MISCELLANEOUS APPLICATION FOR CONDONATION OF DELAY I , SHRI MOHD HUSSAIN HABIB PATHAN, AGED 58 YEARS, AN INDIAN INHABITANT, RESIDING AT MUMBAI PARTNER OF RAKSHA CONSTRUCTION D O HEREBY STATE ON SOLEMN AFFIRMATION AS UNDER 1. THE ASSESSEE HAS FILED THE APPEAL AGAINST THE OR DER OF A.Y. 2010-11 DATED 10.06.2016 OF LD. CIT(A), MUMBAI IN CONFIRMIN G THE ACTION OF AO. 2. THE APPLICANT SUBMITS THAT THE APPLICANT HAS MEN TIONED THE GROUNDS WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE IN FI LING THE APPEAL BEFORE THE HONLE TRIBUNAL. THE APPLICANT WAS VIGILANT OV ER THE MATTER BUT HE COULD NOT FILE THE APPEAL BEFORE THE TRIBUNAL FOR T HE REASONS MENTIONED IN THE MISCELLANEOUS APPLICATION. 3. IN SUPPORT OF THE CONTENTION AND FOR CONDONATION OF DELAY THE ASSESSEE REFER TO AND RELY UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION, VS MST . KATIJI & ORS ON 19 FEBRUARY, 1987, EQUIVALENT CITATIONS: 1987 AIR 1353 , 1987 SCR (2) 387 AND SUBMITS THAT THE DELAY OF 608 DAYS BE CONDONE T O MEET THE ENDS OF JUSTICE. WHATEVER IS STATED HEREINABOVE ARE TRUE AND CORRECT TO THE BEST O MY KNOWLEDGE AND BELIEF AND NOTHING HAS BEEN SUPPRESSE D IN THE PETITION, AS WELL AS IN THE AFFIDAVIT. SOLEMNLY AFFIRMED ON THIS 03 RD DAY OF MARCH, 2017. AT MUMBAI FOR RAKSHA CONSTRUCTION M. H. H. PATHAN PARTNER (MOHD HUSSAIN HABIB PATHAN) DEPONENT 5. ON A PERUSAL OF THE AFFIDAVIT, IT IS NOT POSSIBL E TO ENVISAGE THE REASONS SEEKING CONDONATION OF DELAY. A REFERENCE HAS BEEN MADE TO SOME UNDATED MISCELLANEOUS APPLICATION WHICH IS NOT THERE ON RECORD. THEREFORE, IT IS DIFFICULT TO UNDERSTAND THE CAUSE FOR FILING APPEAL BELATEDLY BEYOND THE STATUTORY TIME LIMIT AFTER A C ONSIDERABLE LAPSE. NEEDLESS TO SAY, SUCH INORDINATE DELAY CAUSES SERIO US PREJUDICE TO THE OTHER SIDE IN DEFENDING ITS CASE WITH THE EFFLUX OF TIME. THE DELAY OF 608 DAYS IS IN THE LEAGUE OF EXTRAORDINARY. THE AS SESSEE IS EXPECTED TO EXPLAIN EVERYDAY DELAY AND DOES NOT HAVE ANY INDEFE ASIBLE RIGHT TO CLAIM CONDONATION. NONDESCRIPT AND CRYPTIC REASONS CANNOT BE APPRECIATED WHILE ADOPTING LIBERAL APPROACH IN SUCH MATTER. AS NOTED EARLIER, ASSESSEE HAS EXHIBITED FURTHER LAXITY IN N OT ATTENDING THE APPEAL ON THE APPOINTED DATE. THE ASSESSEE CANNOT ESCAPE THE BURDEN ITA NO. 5441/MUM/16 [ITO VS. M/S. RAKSHA CONSTRUCTION] A.Y. 2010-11 - 4 - OF PROOF TO SUPPORT THE PURPORTED CAUSE FOR DELAY. THEREFORE, IT IS DIFFICULT FOR OR TO ENDORSE A FLIPPANT AFFIDAVIT OF SELF SERVING NATURE IN JUSTIFICATION OF LACKADAISICAL ATTITUDE OF THE ASSE SSEE. THEREFORE, IN THE ABSENCE OF ANY MERIT IN THE PETITION FOR CONDON ATION OF DELAY, WE DECLINE TO ENTERTAIN THE REQUEST OF THE ASSESSEE ON THIS SCORE. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY DISMISSED OWI NG TO BAR OF LIMITATION IS PROVIDED IN SECTION 253(3) OF THE ACT . 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED IN LIMINE . SD/- SD/- (PAWAN SINGH) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: DATED 06/06/2019 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. )*+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, ) / DR, ITAT, MUMBAI 6. 278 9 / GUARD FILE. BY ORDER / , / , *+#, ) THIS ORDER PRONOUNCED IN OPEN COURT ON 06/06/201 9