Shri Kaushalendra Singh, Lucknow V. Commissioner of Income Tax--I, Lucknow

ITA 584/LKW/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100457 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 68; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.584/LKW/2015 ASSESSMENT YEAR 2006-07 COMMISSIONER OF INCOME TAX - 1, LUCKNOW VS SHRI KAUSHLENDRA SINGH, LUCKNOW PAN ADKPS 0252 K (RESPONDENT) (APPELLANT) SHRI RAJESH JAIN, CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 20 / 10 /2015 DATE OF HEARING 06 / 11 /2015 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT-I, LUCKNOW PASSED U/S 263 OF THE INCOME TAX ACT, 1961, SETTING ASIDE THE ASSESSMENT ORDER HAVING INVOKED THE PROVISIONS OF S ECTION 263 OF THE ACT. HOWEVER, WE EXTRACT THE GROUNDS RAISED IN THIS APPE AL AS UNDER: (1) BECAUSE THE LD. COMMISSIONER OF INCOME TAX -1 / LUCKNOW PASSED HIS ORDER ON THE BASIS OF THE FINDING THAT ASSESSEE COULD NOT PRODUCE THE DOCUMENTARY EVIDENCE THAT RS 85 LACS WAS OUT OF SALE PROCEEDS OF PROPERTY SOLD BUT THE LD. COMMISSIONER OF INCOME TAX -1 / LUCKNOW FAILED TO ACKNOWLEDGE THE SUBMISSIONS OF AS SESSEE MENTIONING THE SOURCE OF RECEIPT FROM SALE OF RESID ENTIAL PROPERTY. (2) BECAUSE THE LD. COMMISSIONER OF INCOME TAX -1 / LUCKNOW IN HIS NOTICE DATED 20.10,2010 MENTIONED THAT THE AMOUNT O F RS 85 LACS 2 WAS LIABLE FOR ADDITION AS PER THE'PROVISIONS OF SE CTION 68 OF THE ACT AND HE HAS PROCEEDED TO ENQUIRY ON THIS BASIS. HOWE VER THE LD. COMMISSIONER OF INCOME TAX -1 / LUCKNOW HAS FAILED TO ACKNOWLEDGE THAT THE INQUIRY U/S 68 CAN BE UNDERTAKEN ONLY DURI NG THE COURSE OF ASSESSMENT AND NOT FOR THE PURPOSE OF REVISION U/S 263 OF THE ACT. (3) BECAUSE THE LD. COMMISSIONER OF INCOME TAX -1 / LUCKNOW IN HIS NOTICE DATED 20.10.2010 AND FURTHER PROCEEDINGS U/S 263 RAISED THE ISSUE OF CREDIT OF RS 85 LACS ONLY. HOWEVER IN THE ORDER DATED 19.01.2011 THE DIRECTIONS WERE ISSUED FOR FRESH ASS ESSMENT AND NOT RESTRICTED THE ENQUIRY TO THE CREDIT ENTRY OF RS 85 LACS ONLY, AS A RESULT OF WHICH THE ID. ASSESSING OFFICER CONSIDERE D THE CREDIT OF RS 90 LACS AND INCREASED THE SCOPE OF ASSESSMENT. (4) BECAUSE THE LD. COMMISSIONER OF INCOME TAX - 1 / LUCKNOW HAS HIMSELF STATED THAT THE ENQUIRY WAS CONDUCTED IN RE FERENCE TO THE ENTRY OF RS 85 LACS AND THE NATURE OF ENTRY WAS SEL F EXPLANATORY IN THE DOCUMENTS FILED. FURTHER TO IT THE LD. ASSESSIN G OFFICER DID NOT TAKE ANY ADVERSE VIEW ON IT. THEREFORE THE QUESTION OF FURTHER ENQUIRY UNDER SECTION 263 DOES NOT ARISE. (5) BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACT, LAW AND PRINCIPLES OF NATURAL JUSTICE. (6) THE APPELLANT PRAYS THAT HE MAY BE ALLOWED TO A DD, AMEND, ALTER OR FOREGO ANY OF THE GROUNDS AT THE TIME OF HEARING. (7) ANY ORDER RELIEF, WHICH YOUR GOOD SELF MAY DEEM FIT. 2. THIS APPEAL IS FILED LATE BY 1622 DAYS FOR WHICH THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY, ON THE GROUND THAT AT THE RELEVANT POINT OF TIME THE DEFECT IN THE ORDER PASSED U/S 263 OF THE ACT COULD NOT BE NOTICED BY THE ASSESSEE, THEREFORE, HE DID NOT FILE APPEAL. NO W, THE ASSESSEE HAS CHANGED THE AUTHORIZED REPRESENTATIVE, AND NEW D.R. HAS ADV ISED HIM THAT THE ORDER PASSED U/S 263 OF THE ACT SHOULD BE CHALLENGED. THE REFORE, THE APPEAL HAS BEEN FILED. THE ASSESSEE HAS ALSO PLACED RELIANCE UPON T HE ORDER OF THE TRIBUNAL, HYDERABAD BENCH IN THE CASE OF M/S KOBHASHI MACHINE TOOLS PVT. LTD. VS. DCIT IN WHICH THE DELAY OF 731 DAYS WAS CONDONED BY THE TRIBUNAL, WHEREAS THE LD. DR HAS STRONGLY OPPOSED THE CONDON ATION OF THE DELAY, ON THE GROUND THAT THERE IS NO 3 SUFFICIENT CAUSE FOR CONDONING THE DELAY AS THE ASS ESSING OFFICER HAS ALSO PASSED AN ORDER CONSEQUENT TO THE ORDER PASSED U/S 263 OF THE ACT ON 27.12.2011. IN THIS ASSESSMENT PROCEEDING, THE ASSESSEE HAS APPEAR ED AND PURSUED HIS CASE. THEREAFTER, THE ASSESSEE HAS ALSO FILED AN APPEAL B EFORE THE CIT(A) AGAINST THAT ORDER OF THE AO AND THAT APPEAL WAS ALSO DISPOSED O F BY THE CIT(A) VIDE HIS ORDER DATED 15.12.2013. BEFORE THE CIT(A), ASSESSEE HAS PROSECUTED ITS CASE EFFECTIVELY. FURTHER, ASSESSEE HAS ALSO FILED AN AP PEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) ON 21.02.2014. SINCE THE AS SESSEE HAS BEEN ASSISTED BY THE PROFESSIONAL SINCE THE INITIATION OF ASSESSMENT PROCEEDING, IT CANNOT BE SAID THAT HE WAS ILL ADVISED BY THE COUNSEL FOR NOT FILI NG AN APPEAL AGAINST THE ORDER PASSED U/S 263 OF THE ACT. THIS APPEAL AGAINST THE ORDER PASSED U/S 263 OF THE ACT IS FILED EVEN AFTER THE FILING AN APPEAL AGAINS T THE ORDER OF CIT(A) BEFORE THE TRIBUNAL. LD. DR FURTHER CONTENDED THAT THOUGH THE JUDICIAL AUTHORITIES ARE LIBERAL FOR CONDONING THE DELAY BUT DELAY HAS TO BE EXPLAIN ED PROPERLY BY FURNISHING A SUFFICIENT CAUSE. SINCE THE ASSESSEE HAS FAILED TO FURNISH THE SUFFICIENT CAUSE FOR DELAY IN FILING OF THE APPEAL. THE DELAY CANNOT BE CONDONED. 3. HAVING HEARD THE RIVAL SUBMISSION AND FROM CAREF UL PERUSAL OF THE RECORD, WE FIND THAT THE CIT HAS PASSED AN ORDER U/S 263 OF THE ACT VIDE HIS ORDER DATED 19.01.2011 HAVING SET ASIDE THE ORDER OF THE AO. CO NSEQUENT TO THE ORDER OF THE CIT PASSED U/S 263 OF THE ACT, THE ASSESSING OFFICE R HAS ISSUED A NOTICE TO THE ASSESSEE FOR COMPLETING THE ASSESSMENT. ACCORDINGLY , ASSESSEE APPEARED AND ASSESSMENT WAS COMPLETED VIDE ORDER DATED 27.12.201 1. AGGRIEVED WITH THE ASSESSMENT ORDER, THE ASSESSEE HAS PREFERRED AN APP EAL BEFORE THE CIT(A) ON 27.01.2012 AND THE CIT(A) HAS ALSO DISPOSED OF THE APPEAL VIDE ORDER DATED 15.12.2013. EVEN BEFORE THE CIT(A), THE ASSESSEE WAS DULY REPRESENTED BY THE PROFESSIONALS. AGGRIEVED WITH THE ORDER OF CIT(A), THE ASSESSEE HAS ALSO FILED AN APPEAL BEFORE THE TRIBUNAL ON 21.02.2014. THEREFORE , THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED THAT HE WAS NOT AWARE W ITH REGARD TO THE LEGAL 4 POSITION OF THE ORDER OF THE CIT PASSED U/S 263 OF THE ACT. HE HAS TAKEN A PLEA THAT HE WAS NOT PROPERLY ADVISED BY HIS COUNSEL WIT H REGARD TO THE ORDER PASSED U/S 263 OF THE ACT, WHEREAS FACTS BORN OUT FROM THE RECORD ARE OTHERWISE. THE ASSESSEE WAS REPRESENTED BY SRI D.R. SINGH ADVOCATE BEFORE THE CIT, DURING THE COURSE OF PROCEEDING U/S 263 OF THE ACT AND BEFORE THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDING, CONSEQUENT TO THE ORDER PASSED U/S 263 OF THE ACT ASSESSEE APPEARED ALONG WITH HIS COUNSEL. B EFORE THE CIT(A) THE ASSESSEE WAS ALSO REPRESENTED BY SHRI SUMT TIWARI A DVOCATE AND AGAINST THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL B EFORE THE TRIBUNAL THROUGH HIS COUNSEL, SRI ROHIT NANDAN SHUKLA AND SRI D.R. SINGH ADVOCATES. THEREFORE, IT CANNOT BE SAID THAT ASSESSEE WAS ILL ADVISED BY THE PROFESSIONAL FOR WHICH HE COULD NOT FILE AN APPEAL AGAINST THE ORDER PASSED U /S 263 OF THE ACT. 4. WE HAVE ALSO CAREFULLY PERUSED THE ORDERS RENDER ED BY THE TRIBUNAL IN THE CASE OF M/S KOBHASHI MACHINE TOOLS PVT. LTD. VS. DC IT AND IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST KATIJI & ORS. R EPORTED IN 167 ITR 471 AND WE FIND THAT FACTS OF THESE CASES ARE DIFFERENT, THERE FORE, NO ASSISTANCE CAN BE DRAWN IN FAVOUR OF THE ASSESSEE. NO DOUBT THAT WHILE DEAL ING WITH THE CONTENTION ON THE DELAY THAT JUDICIAL AUTHORITIES SHOULD TAKE A LIBER AL APPROACH AND DUTY IS CAST UPON THE ADVOCATE OF THE APPLICANT TO EXPLAIN THE D ELAY OF EACH AND EVERY DAY. THE ADVOCATE IS REQUIRED TO FURNISH A REASONABLE CA USE TO EXPLAIN THE DELAY, BUT IN THE INSTANT CASE, THE ASSESSEE HAS SIMPLY STATED THAT HE WAS ILL ADVISED BY HIS COUNSEL. THIS BALD STATEMENT CANNOT BE ACCEPTED AS HE WAS ASSISTED BY THE PROFESSIONAL, DURING THE COURSE OF VARIOUS PROCEEDI NGS BEFORE THE INCOME TAX AUTHORITY. THEREFORE, WE FIND NO REASONABLE CAUSE F OR CONDONING THE DELAY IN FILING OF THE APPEAL OF 1622 DAYS. IT IS APPROXIMAT ELY FOUR AND HALF YEARS. THEREFORE, WE REJECT THE APPLICATION OF THE ASSESSE E FOR CONDONING THE DELAY IN FILING OF THE APPEAL. SINCE THE DELAY HAS NOT BEEN CONDONED, WE DECLINE TO ADMIT 5 THE APPEAL FOR HEARING. ACCORDINGLY, APPEAL OF THE ASSESSEE STANDS DISMISSED BEING NOT ADMITTED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DIS MISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (A.K. GARODIA ) (SUNIL KUMA R YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:06 /11/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASST T. REGISTRAR