Exim Rajathi India Pvt Ltd., Nagapattinam V. JCIT, Thanjavur

ITA 575/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77198 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 25-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2013
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: T BANUSEKAR
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHE NNAI . . . , ! , ' # $ BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / I.T.A. NO. 575/MDS/2013 / ASSESSMENT YEAR : 2007-08 M/S.EXIM RAJATHI INDIA PVT. LTD., 11, FIRST LINE BEACH ROAD, NAGAPATTINAM-611 001 [PAN: AABCE 1762 D] ( !% /APPELLANT) VS JOINT COMMISSIONER OF INCOME TAX, THANJAVUR RANGE, THANJAVUR ( &'!% /RESPONDENT) / APPELLANT BY : SHRI T.BANUSEKAR, CA / RESPONDENT BY : SHRI ANIRUDH RAI, CIT-DR / DATE OF HEARING : 25-03-2014 ! / DATE OF PRONOUNCEMENT : 07-04-2014 #( / O R D E R PER VIKAS AWASTHY, J.M: THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX-II, TIRUCHIRAPALLI, D ATED 15-02-2011PASSED U/S.263 OF THE INCOME TAX ACT, 196 1 (HEREIN AFTER REFERRED TO AS THE ACT) IN RESPECT OF THE A SSESSMENT YEAR (AY) 2007-08. THE APPEAL HAS BEEN FILED WITH A DE LAY OF 717 I.T.A. NO. 575/MDS/2013 2 (SEVEN-ONE-SEVEN) DAYS. THE ASSESSEE HAS FILED AN APPLICATION SUPPORTED BY AN AFFIDAVIT FOR CONDONATION OF DELAY. 2. SHRI T.BANUSEKAR, APPEARING ON BEHALF OF THE ASS ESSEE SUBMITTED THAT THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ON HIS ADVICE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX. THE ASSESSEE HAD APPROACHED HIM IN CONNECTION WITH THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(APPEA LS). DURING THE COURSE OF EXAMINATION OF APPEAL PAPERS, IT TRANSPIR ED THAT THE COMMISSIONER OF INCOME TAX IN HIS ORDER U/S.263 HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE GAIN ARISING FROM THE SALE OF UN-LISTED SHARES AS SHORT TERM CAPITAL GAIN. THE ASSESSEE DID NOT ASSAIL THE REVISION ORDER OF COMMI SSIONER OF INCOME TAX. THEREFORE, IT WAS ON HIS ADVICE THAT TH E NECESSARY DOCUMENTS WERE PREPARED AND SENT TO THE ASSESSEE FO R SIGNATURES ON 30-03-2013 FOR FILING APPEAL AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX DATED 15-02-2011. THE APPEAL DOCUMEN TS DULY SIGNED WERE SENT BACK TO THE OFFICE OF AR ON 01-04- 2013 AND THE APPEAL WAS FILED BEFORE THE TRIBUNAL ON 02-04-2013. 3. SHRI ANIRUDH RAI, APPEARING ON BEHALF OF THE REV ENUE VEHEMENTLY OPPOSED THE APPLICATION FOR CONDONATION OF DELAY. THE I.T.A. NO. 575/MDS/2013 3 LD.DR SUBMITTED THAT THERE HAS BEEN INORDINATE DELA Y OF 717 (SEVEN-ONE-SEVEN) DAYS. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX AFTER THE REVENUE HAS ASSAILED THE ORDER OF CIT(APPEALS) ARIS ING FROM THE ORDER GIVING EFFECT TO THE ORDER OF THE COMMISSIONE R OF INCOME TAX. THE LD.DR STRONGLY OPPOSING THE APPLICATION S UBMITTED THAT THE DELAY OF 717 (SEVEN-ONE-SEVEN) DAYS IN FILING T HE APPEAL HAS NOT BEEN SUFFICIENTLY EXPLAINED BY THE ASSESSEE. 4. BOTH SIDES HEARD. THE ASSESSEE HAS FILED APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX DATED 15-02-201 1 PASSED U/S.263 OF THE ACT FOR THE AY.2007-08. THE COMMISS IONER OF INCOME TAX VIDE IMPUGNED ORDER HAD SET ASIDE THE AS SESSMENT ORDER DATED 30-12-2009 PASSED U/S.143(3) FOR THE RE LEVANT AY. THE COMMISSIONER OF INCOME TAX OBSERVED THAT THE AS SESSING OFFICER HAS FAILED TO TAKE INTO CONSIDERATION THE S HORT TERM CAPITAL GAIN ARISING FROM SALE OF DEBENTURES AND SHARES OF M/S.JENNYS HOTEL (P) LTD., IN THE PERIOD RELEVANT TO AY.2007-0 8. THE COMMISSIONER OF INCOME TAX DIRECTED THE ASSESSING O FFICER TO FRAME ASSESSMENT DENOVO. CONSEQUENT TO THE DIRECTIONS OF THE COMMISSIONER OF INCOME TAX, THE ASSESSING OFFICER P ASSED ORDER I.T.A. NO. 575/MDS/2013 4 ON 30-12-2011 U/S.143(3) R.W.S.263 OF THE ACT. THE ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. AGGRIEVED AGAINST THE ASSESSMENT ORDER DATED 30-12- 2011, THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS). THE APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL ASSAILING THE ORDER OF CIT(APPE ALS). IT IS THEREAFTER, THE ASSESSEE FILED PRESENT APPEAL AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX U/S.263 ALONG WITH THE A PPLICATION FOR CONDONATION OF 717 (SEVEN-ONE-SEVEN) DAYS DELAY IN FILING OF THE APPEAL. 5. A PERUSAL OF APPLICATION AND AFFIDAVIT SHOWS THA T THE ASSESSEE HAS NOT BEEN ABLE TO GIVEN ANY PLAUSIBLE R EASON FOR DELAY IN FILING THE APPEAL BEYOND THE PERIOD OF LIM ITATION. WE FIND THAT THE ASSESSEE WAS REPRESENTED BY A QUALIFIED CA ., BEFORE THE ASSESSING OFFICER IN PROCEEDINGS CONSEQUENT TO REVI SION ORDER AND CIT(APPEALS). THEREFORE, THE ASSESSEE CANNOT TAKE THE SHELTER OF IGNORANCE OF REMEDIES AVAILABLE UNDER THE ACT. THE RE IS INORDINATE DELAY OF 717 (SEVEN-ONE-SEVEN) DAYS IN FILING OF TH E PRESENT APPEAL WHICH HAS NOT BEEN SUFFICIENTLY EXPLAINED. I.T.A. NO. 575/MDS/2013 5 6. WE ARE WELL AWARE OF THE SETTLED LAW THAT CONDON ATION OF DELAY SHOULD BE THE RULE AND DISMISSAL AN EXCEPTION . HOWEVER, THE PERSON SEEKING CONDONATION OF DELAY HAS TO STATE SU FFICIENT CAUSE FOR CONDONING THE DELAY. THIS IS NOT A FORMALITY. IN THE PRESENT CASE, THERE IS UTTER LACK OF EXPLANATION, NO SUFFIC IENT CAUSE HAS BEEN SHOWN FOR CONDONATION OF DELAY. LIBERAL VIEW CAN BE TAKEN ONLY IN CASE THE PERSON MOVING AN APPLICATION GIVES PLAUSIBLE REASONS AND DETAIL IN THE APPLICATION OR SUPPORTING AFFIDAVIT TO MAKE OUT SUFFICIENT CAUSE. THE COURTS NOW DO NOT INSIST ON EXPLANATION OF DAY TO DAY DELAY. BUT IF SUFFICIENT CAUSE IS NO T GIVEN FOR DELAY, THE COURTS CANNOT OVERREACH ITS JURISDICTION, IGNOR E THE LIMITATION BAR AND CONDONE THE DELAY JUST BECAUSE AN APPLICATION F OR CONDONATION HAS BEEN FILED. THE LAW CANNOT COME TO THE RESCUE OF THOSE WHO REMAIN IN SLUMBER AND ARE NOT VIGILANT ENOUGH TO PR OTECT THEIR RIGHTS. WHAT COLOUR THE EXPRESSION SUFFICIENT CAUSE WOUL D GET IN THE FACTUAL MATRIX OF A GIVEN CASE WOULD LARGELY DEPEND ON BONAFIDE NATURE OF THE EXPLANATION. IF THE COURT FINDS THAT THERE HAS BEEN NO NEGLIGENCE ON THE PART OF THE APPLICANT AND THE CAU SE SHOWN FOR THE DELAY DOES NOT LACK BONAFIDES, THEN IT MAY COND ONE THE DELAY. IF, ON THE OTHER HAND, THE EXPLANATION GIVEN BY THE APPLICANT IS FOUND TO BE CONCOCTED OR THE APPLICANT IS THOROUGHL Y NEGLIGENT IN I.T.A. NO. 575/MDS/2013 6 PROSECUTING ITS CAUSE, THEN IT WOULD BE A LEGITIMAT E EXERCISE OF DISCRETION NOT TO CONDONE THE DELAY. 7. THE WORDS SUFFICIENT CAUSE RECEIVE A LIBERAL C ONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE NOR INACTION NOR WANT OF BONAFIDES IS IMPUTED TO THE APPELLANT. IN THE CASE IN HAND, THE ASSESSEE FOR THE REASONS UNEXPLAINED REMAIN IN SLUMBER AND FAILED TO TAKE NECESSARY STEPS TO PROTECT ITS OWN R IGHT. THE APPEAL OF THE ASSESSEE IS DISMISSED AS THE ASSESSEE HAS NO T BEEN ABLE TO SUFFICIENTLY EXPLAIN THE DELAY OF 717 (SEVEN-ONE-SE VEN) DAYS IN FILING OF THE APPEAL. ORDER PRONOUNCED ON MONDAY, THE 07 TH APRIL, 2014 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) (VI KAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER DATED: 07 TH APRIL, 2014 TNMM COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR