SOVEN TRADING AND INVESTMENT CO. P.LTD, MUMBAI V. DCIT 8(3), MUMBAI

ITA 5476/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100553 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 28-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M WANDRE D R
• Assessee Lawyers: AJAY S SINGH
• Keywords: Bonafide belief; Period of limitation; Reasonable cause; Time period of passing order

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI A.D. JAIN, JM AND SHRI RAJENDRA, AM .. , , ./ I.T.A. NO. 5476 /MUM/2014 ( / ASSESSMENT YEAR : 2010-11 M/S SOVEN TRADING AND INVESTMENT CO. PVT. LTD., 142, GHASWALA ESTATE, S.V. ROAD, JOGESHWARI (W), MUMBAI 400 102. / VS. DY. COMMISSIONER OF INCOME TAX 8(3), MUMBAI. ./ PAN : AAFCS0143Q ( / APPELLANT ) .. ( ! / RESPONDENT ) A PPELLANT BY SHRI AJAY S. SINGH R E SPONDENT BY : SHRI H.M. WANDRE (D.R.) ' # $ % & ' / DATE OF HEARING : 22-07-2015 ()*+ % & ' / DATE OF PRONOUNCEMENT : 07-08-2015 [ , / O R D E R PER A.D. JAIN, J.M . : .. , THIS IS ASSESSEES APPEAL FOR A.Y. 2010-11, AGAINST THE ACTION OF THE LD. CIT(A)-18, MUMBAI DATED 18-07-2014, WHEREBY HE DISM ISSED THE ASSESSEES APPEAL FILED BEFORE HIM, AS BELATED BY 174 DAYS. 2. THE LD. CIT(A) HAS HELD AS FOLLOWS:- 3.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT, ORDER OF THE AO AND FACTS OF THE CASE CAREFULLY. IT IS NOTICED T HAT THERE WAS NO REASONABLE CAUSE FOR FILING THE APPEAL-LATE BY 174 DAYS. IT. IS OBSERVED THAT THE AR OF THE APPELLANT HAS NOT GIVEN THE REAS ONS FOR FILING THE APPEAL LATE BUT MORE EMPHASIS HAS BEEN GIVEN ON THE DECISION OF HONORABLE COURTS STATED ABOVE. SINCE THE FACTS OF T HE PRESENT CASE ARE TOTALLY DIFFERENT THAT THERE WAS NO REASONABLE CAUS E GIVEN BY THE ITA 5476/M/14 2 ASSESSEE FOR FILING THE APPEAL LATE, THEREFORE, THE DECISION RELIED ON ARE NOT HELPFUL. TO STRENGTHEN THE VIEW THAT DELAY FOR EACH DAY HAS TO BE EXPLAINED BY THE APPELLANT RELIANCE IS PLACED ON TH E FOLLOWING DECISIONS. (A) STATE OF ANDHRA PRADESH VS. VENKATARAMANA CHUDU VA & MURMURA MERCHANT & ANR. (AP) 159 ITR 59 - HIGH COUR T'S ORDER AGAINST THE ASSESSEE LATER ON REVERSED BY SUPREME C OURT SINCE - HIGH COURT JUDGMENT WAS AGAINST THE ASSESSEE IT DID NOT FILE APPEAL, BUT WHEN SC DECISION CAME IN ITS FAVOUR, IT DECIDED TO FILE APPEAL - THIS IS A REASONABLE CAUSE FOR CONDON ATION OF DELAY. BUT WHEN ASSESSMENT ORDER WAS PASSED AND LIMITATION TO FILE APPEAL OVER, EVEN HC ORDER WAS NOT THERE - HENCE, T HERE IS NO REASONABLE CAUSE FOR DELAY IN FILING APPEAL. (B) RANKAK & ORS. VS. REWA COALFIELDS LTD. AIR 1962 SC 361 AND JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. (ITAT, CHE NNAI-TM) 104 ITD 149 - PARTY HAS TO SHOW REASON FOR DELAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EACH DAY TH EREAFTER - CONDONATION IS NOT A MATTER OF RIGHT- COURT HAS TO EXERCISE THE DISCRETIONARY JURISDICTION. (C) COLLECTOR LAND ACQUISITION VS. MST. KATIJI (SC) 167 ITR 471, STATE OF HARYANA VS. CHANDRA MANI 1996 AIR SC 1623 AND G. RAMEGOWDA MAJOR VS. SPECIAL LAND 1988 AIR SC 897-. LIBERAL APPROACH TO BE TAKEN IN RESPECT OF APPEALS BY DEPAR TMENT. ITO VS. MEGHALAYA BONDED WAREHOUSE (GAU) 60 ITD 219 - TIME TAKEN TO OBTAIN CERTIFIED COPY OF ORDER CAN BE EXCL UDED FOR COMPUTING PERIOD OF LIMITATION FOR FILING APPEAL. (D) BRIJ INDERS SINGH VS. KANSHI RAM AIR 1917-PC-15 6, BARODA RAYON COPN. LTD. (GUJ) 87 STC 266, M. KRISHNA RAO D . PHALKE VS. TRIMBAK AIR 1938 NAG. 156 AND BALDEO LAL ROY VS . STATE OF BIHAR (1960) 11 STC 104 (PAT) - DELAY IN FILING TH E APPEAL - CAUSE FOR DELAY - WHETHER THE APPELLANT HAS ACTED W ITH REASONABLE DILIGENCE IN THE PROSECUTING OF HIS APP EAL - TO BE LOOKED INTO. (E) MRS. ANITA CHADHA VS. CIT 189 TAXMAN 300 (PB & HARYANA) - WHETHER DELAY IN FILING OF APPEAL BEYOND PERIOD OF 120 DAYS PRESCRIBED BY SEC. 260A(2)(A) CAN BE CONDONED BY EN TERTAINING AN, APPLICATION U/S. 5 OF LIMITATION ACT, 1963 - HE LD - NO. (F) CIT VS. MAHARASHTRA STATE GOVERNMENT EMPLOYEE CONFEDERATION APPEAL NO. CC3159-3160 OF 2009 23.03. 2009 (SC) - WHEN THE HIGH COURT HAS REFUSED TO CONDONE DELAY OF 562 DAYS IN FILING APPEAL, WE DO NOT SEE ANY REASON TO INTER FERE THEREWITH, ITA 5476/M/14 3 MORE SO WHEN THE SLP HAVE ALSO DELAYED. SLP ARE DI SMISSED BOTH ON GROUND OF DELAY AS ALSO ON MERIT. 3. THE OBSERVATIONS MADE BY THE LD. CIT(A) REMAIN U NDISPUTED. HOWEVER, ACCORDING TO THE ASSESSEE, THE REASON FOR DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) WAS THAT, AFTER THE RECEIPT OF THE ASSES SMENT ORDER, THE ASSESSEE COMPANY WAS UNDER A BONAFIDE BELIEF THAT NO PENALTY OR ANY OTHER CONSEQUENCES WILL FOLLOW AND ONLY AFTER RECEIPT OF PENALTY ORDER, THE ASSESSEE COMPANY REALIZED ITS MISTAKE AND FILED THE APPEAL A ND, THIS ACT OF THE ASSESSEE WAS DUE TO IGNORANCE OF TAX LAW AND WAS NOT DELIBER ATE. 4. HAVING CONSIDERED THE ABOVE CONTENTIONS OF THE A SSESSEE BEFORE THE LD. CIT(A), WE FIND THE DELAY OF 174 DAYS IN THE FILING OF THE ASSESSEES APPEAL BEFORE THE LD. CIT(A) TO BE A BONAFIDE DELAY. NOW, EVIDENTLY, THE FACTUAL MATRIX, AS DELINEATED IN THE SUBMISSIONS BEFORE THE LD. CIT (A), EXPLAINS THE BONAFIDES OF THE ASSESSEE AND OBVIOUSLY, IT CANNOT STAND TO G AIN BY INTENTIONALLY DELAYING THE FILING OF ITS APPEAL. INITIALLY, THE A SSESSEE DID NOT FILE APPEAL AGAINST THE ASSESSMENT ORDER, SINCE THERE WAS NO TA X DEMAND. THE ASSESSEE WAS ACCORDINGLY OF THE BONAFIDE BELIEF THAT NO PENA L OR OTHER CONSEQUENCES WOULD FOLLOW. IT WAS ONLY THE PASSING OF THE PENALT Y ORDER, WHICH, ACCORDING TO THE ASSESSEE, NECESSITATED THE FILING OF THE QUANTU M APPEAL. MOREOVER, NO MALAFIDE INTENTION CAN BE ASCRIBED TO THE ASSESSEE, IN VIEW OF THE ABOVE FACTS, FOR DELAYING THE FILING OF THE APPEAL. THE LD. CIT( A) SHOULD HAVE CONSIDERED THE REASON GIVEN TO BE SUFFICIENT CAUSE WHICH PREVENTED THE ASSESSEE FROM FILING THE APPEAL WITHIN TIME. 5. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER TO HIM WITH A DIRECTION TO CONDONE THE D ELAY OF 174 DAYS IN THE ITA 5476/M/14 4 FILING OF THE ASSESSEES APPEAL AND TO DECIDE THE M ATTER AFRESH ON MERITS IN ACCORDANCE WITH LAW, ON AFFORDING DUE OPPORTUNITY O F HEARING TO THE ASSESSEE. THE ASSESSEE SHALL COOPERATE IN THE REMAND PROCEEDI NGS. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH AUGUST, 2015 , % ()*+ ' -. / 0 07-08-2015 ) % 1$ SD/- SD/- (RAJENDRA) (A.D. JAIN ) ACCOUNTANT MEMBER /J UDICIAL MEMBER - ' =$ MUMBAI ; / DATED 07-08-2015 [ #.../ R.K. R.K. R.K. R.K. , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. ' E& () / THE CIT(A)-18, MUMBAI 4. ' E& / CIT- 8, MUMBAI 5. H#I 1 &JK , ' JK+ , - ' =$ / DR, ITAT, MUMBAI E BENCH 6. 1 L M $ / GUARD FILE. ! ( / BY ORDER, ! H& & //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , - ' =$ / ITAT, MUMBAI