The Sub Registrar/Joint Sub Registrar, Hamirpur V. Director of Income Tax (I&CI), Chandigarh

ITA 59/CHANDI/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 7981 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SURESH KUMAR THAKUR
• Keywords: Period of limitation; Reasonable cause; Competent authority; Time period of passing order; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NOS. 59 & 60/CHD/2019 / ASSESSMENT YEARS : 2012-13 & 2013-14 THE SUB REGISTRAR / JOINT SUB REGISTRAR, TEHSIL OFFICE, DISTRICT .HAMIRPUR VS. ! THE DIT (I&CI), CHANDIGARH ' # ./ PAN NO: PTLT12519D '$/ APPELLANT &' '$ / RESPONDENT ()*+ /ASSESSEE BY : SH. SURESH KUMAR THAKUR, ADVOCATE *+ / REVENUE BY : SH. MANJIT SINGH, CIT DR , -*) .# /DATE OF HEARING : 3.12.2019 /0 *) .# / DATE OF PRONOUNCEMENT : 20.12. 2019 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE CAPTIONED APPEALS, BY THE ASSESSEE HAVE BEEN PR EFERRED AGAINST THE COMMON ORDER DATED 25/7/2017 OF THE CO MMISSIONER OF INCOME TAX (APPEALS), PALAMPUR, [HEREINAFTER REFERR ED TO AS CIT(A)]. 2. THE ASSESSEE IN ITS APPEAL HAS TAKEN FOLLOWING COMMON GROUNDS OF APPEAL:- 1. THAT THE COMMISSIONER OF INCOME TAX (A) ERRED TO UPHOLD THE LATE FEES OF RS. 129500.00/- (FOR ASSESSMENT YEAR 2012-13) AND RS. 93,000/-( A.Y.2013-14) IMPOSED BY THE DIRECTOR OF INCOME 2 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR TAX (I&CI) U/S 271 FA AND ISSUED ORDER U/S 250(6) OF THE ACT INCOME TAX ACT, 1961. 2. THAT NO LOSS WAS PUT TO THE DEPARTMENT FOR LATE FILING OF THE AIR. SO, THE PENALTY IS LIABLE TO BE QUASHED . EVEN THE MERE VIOLATION WOULD NOT BE ENOUGH TO JUSTIFY THE LEVY OF PENALTY AS IT IS NOT AUTOMATIC. IT IS DISCRETIONARY AS THE WORD USED IS 'MAY' IN SECTION 271 FA AGAINST THE WORD 'SHALL'. IT IS ONLY A TECHNICAL DEFAULT. 3. THAT NO SUCH NOTICE U/S 285BA (5) DATED 20/26.12.2012 HAS BEEN RECEIVED FROM THE DIT (I&CI) WHICH IS MENTION BY THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) IN THE ORDER PASSED. 4. THAT IN RELATION TO THE FINANCIAL YEAR 2011-12, PENALTY UNDER SECTION 271 FA OF THE ACT HAS BEEN LEVIED FOR A DELAY OF 1295 DAYS SINCE THE REQUISITE DETAILS WERE FILED IN THE PRESCRIBED FORM THROUGH DULY APPOINTED AGENCY ON 24/08/2016. THE ASSESSEE, HOWEVER, SUBMIT THE REQUISITE INFORMATION WAS FILED IN THE FORM OF CD BEFORE THE OFFICE OF THE DIT (I&C I) ON 24/08/2016 AND THE NOTICE ISSUE ON DATED 18/03/2016 THE PENALTY MAY BE IMPOSED FOR DELAY OF 98 DAYS ONLY FROM THE DATE OF NOTICE 5. THAT IMPOSED PENALTY U/S 250(6) WAS UNJUSTIFIED AND SHOULD BE QUASHED. 6. COPY OF THE ORIGINAL CHALLAN IN RESPECT OF APPEA L FEE ENCLOSED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR WITH DRAW ANY OF THE GROUNDS OF APPEAL. 3 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR 3. AS PER NOTE OF THE REGISTRY, BOTH THE APPEALS AR E BARRED BY LIMITATION PERIOD OF 459 DAYS. A SEPARATE APPLICATI ON FOR CONDONATION OF DELAY HAS BEEN FILED, THE CONTENTS OF WHICH ARE REP RODUCED AS UNDER:- TO THE REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, SUB: CONDONATION OF DELAY IN SUBMISSION OF APPEAL I N RESPECT OF SUB REGISTRAR / JOINT REGISTRAR HAMIRPUR FILED ON 18./01/2019 IS AS UNDER:- 1. THAT I HAVE FILED APPEAL BEFORE THE HON'BLE INCOME TAX APPELLANT TRIBUNAL AGAINST THE CIT (A) ORDER DATED 25/07/2017 WHICH WAS RECEIVED ON DATED 17/08/2017 F OR THE A.Y.2012-13 AND 2013-14. 2. THAT SAID APPEAL IS FILED ON DATED 18/01/2019, THUS LATE BY 459 DAYS. 3. THAT THE ASSESSING OFFICER DIT(I&CI) IMPOSED PENALT Y FOR THE F.Y. 2011-12 AND 2012-13 RS 129500.00 & 93000.0 0 U/S 271 FA OF THE INCOME TAX ACT 1961. 4. THE LD. CIT (A) UPHOLDS THE ABOVE PENALTY MADE BY T HE DIT (L&CI). 5. THAT THE PAPERS ARE DEALT WITH AT THE DIFFERENT HAN D, AND SUCH CASES DELAY IN FILING THE APPEAL. THUS THE OFF ICER HAS TO TAKE PERMISSION FOR FILING THE APPEAL IN ITAT FR OM THE COMPETENT AUTHORITY. (WORTHY DEPUTY COMMISSIONER) 6. THAT THIS OFFICE HAS REGULARLY AND CONTINUOUSLY BEE N MAKING EFFORTS TO SETTLE THE ISSUE OF PENALTY. DURI NG THIS PROCESS, THE SUB REGISTRAR OF THIS OFFICE WAS TRANS FERRED ON DATED 26/09/2017 THE NEW SUB REGISTRAR JOINED ON DATED 26/09/2017. THE HIMACHAL PRADESH LEGISLATIVE ASSEMBLY ELECTION, 2017 WAS HELD ON 9 NOVEMBER 2017 AND TEHSILDAR EXERCISING THE POWER OF SUB REGISTRAR WAS 4 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR APPOINTED AS ASSISTANT RETURNING OFFICER (ARO). THE DELAY WAS 159 DAYS. 7. THE DEALING HAND WAS ALSO DEPUTED FROM THIS OFFICE IN ELECTION DUTY DURING THE VIDHANSABHA ELECTIONS 2017 . 8. THIS OFFICE REQUESTED TO WORTHY DEPUTY COMMISSIONER HAMIPURTO PROVIDE THE AMOUNT ENABLING TO DEPOSIT IT WITH INCOME TAX DEPARTMENT OR TO FILING THE APPEAL IN IT AT VIDE LETTER NO 98/RC DATED 24/03/2018 TO PROVIDE TH E AMOUNT ENABLING TO DEPOSIT IT WITH INCOME TAX DEPARTMENT (COPY ENCLOSED) 9. THAT THE WORTHY A.C TO DEPUTY COMMISSIONER VIDE LET TER NO. DCH/ESTT/ (INCOME TAX) TEHSIL HMR -2829 DATED 18/07/2018 SOUGHT TO REPLY TO A QUERY (COPY ENCLOSE D). THE DELAY WAS 116 DAYS. 10. THAT THE REPLY TO QUERY WAS SUBMITTED VIDE THIS OFF ICE LETTER NO 217/RC DATED 26/07/2018. 11. THAT IN RESPONSE TO ABOVE LETTER 26/07/2018 THE WORTHY DEPUTY COMMISSIONER DIRECTED TO FILE APPEAL BEFORE INCOME TAX APPELLANT TRIBUNAL (COPY ENCLOSED ) VIDE LETTER NO DCH/ESTT/ (INCOME TAX ) TEHSIL HMR - 3316 DATED 24.08.2018. THE DELAY WAS 37 DAYS. 12. THAT AFTER THE LETTER DATED 24/08/2018 THIS OFFICE CONSULTED INCOME TAX EXPERT (ADVOCATE), WHO DEMANDE D FEES FOR PREPARATION OF DOCUMENTS/ FILING OF APPEAL /REVIEW OF PETITION. 13. THAT THE OFFICE REQUESTED THE WORTHY DEPUTY COMMISSIONER FOR PERMISSION TO ENGAGE THE COUNCIL V IDE LETTER NO 287/ RC DATED 01/10/2018. 14. IN RESPONSE TO ABOVE REQUEST THE WORTHY DEPUTY COMMISSIONER DIRECTED TO FILE APPEAL BEFORE INCOME TAX APPELLATE TRIBUNAL AND GRANT PERMISSION VIDE LETTER NO DCH/ESTT/(LNCOME TAX) TEHSIL HMR-4523 DATED 18/12/2018 (COPY ENCLOSED). THE DE!3Y WAS 116 DAYS. 5 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR 15. THAT AFTER GRANT THE PERMISSION FROM WORTHY DEPUTY COMMISSIONER WE HAVE TAKE VARIOUS EXPERT (ADVOCATE) OPINION TO FILE THE APPEAL WHICH TAKE DELAY OF 31 D AYS. 16. THEREAFTER, I IMMEDIATELY TOOK STEP TO FILE THE APP EAL BEFORE THE HOBLE ITAT. 17. THAT DUE TO THIS OFFICIAL PROCESS THERE IS A DELAY IN FILING THE APPEAL BY 4S9 DAYS-IB 18. EVEN OTHERWISE THIS CASE IS SQUARELY COVERED BY TH E DECISION OF THE HON'BLE SUPREME COURT IN CASE OF AN IL KUMAR NEHRU VS ACIT REPORTED IN 11750/2018(SC) , WHEREIN THE DELAY OF 1662 DAYS AS CONDONED. 19. THAT AS EXPLAINED ABOVE, IT IS HUMBLY SUBMITTED THA T THE DELAY IN FILING THE APPEAL WAS UNINTENTIONAL AN D BY REASON BEYOND THE CONTROL ACCORDINGLY, IT IS PRAYED THAT THE DELAY IN FILING THE APPEAL BE CONDONED AND APPEAL BE HEARD ON MERIT. YOURS FAITHFULLY THE SUB REGISTRAR / JOINT REGISTRAR HAMIRPUR TEHSI1 & DISTT HAMIRPUR (HP) 4. A PERUSAL OF THE ABOVE CONTENTS OF THE APPLICATI ON REVEALS THAT THE ASSESSEE HAS BEEN CONSISTENTLY NEGLIGENT IN FIL ING THE APPEAL BEFORE THIS TRIBUNAL. REASONS FOR DELAY ARE GENERA L AND VAGUE AND SIMPLY IT HAS BEEN STATED THAT DELAY WAS CAUSED DUE TO THE TRANSFER OF THE SUB REGISTRAR AND OTHER OFFICIALS. FURTHER, I T IS STATED THAT THE FILE WAS SENT TO THE DY. COMMISSIONER FOR APPROVAL. HOWE VER, IT TOOK 116 DAYS OF THE DY. COMMISSIONER TO CONSIDER THE APPLIC ATION BUT TO RETURN THE SAME BY WAY RAISING A QUERY / OBJECTION. THOUG H THE REPLY OF THE 6 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR QUERY WAS SUBMITTED BY THE OFFICE OF THE SUB REGIST RAR ON 26.7.2018, IT TOOK 37 DAYS TO THE DY. COMMISSIONER TO GRANT APPR OVAL TO FILE THE APPEAL. THEREAFTER, THE ASSESSEE DEPARTMENT CONSU LTED INCOME TAX EXPERT, WHO OBVIOUSLY DEMANDED FEE FOR FILING THE A PPEAL. THEN AGAIN, PERMISSION WAS SOUGHT FROM THE DY. COMMISSIONER TO ENGAGE A COUNSEL AND IT TOOK ANOTHER 116 DAYS FOR THE DY. COMMISSION ER TO GIVE PERMISSION TO ENGAGE THE COUNSEL / ADVOCATE. THERE AFTER, THE ASSESSEE TOOK ANOTHER 31 DAYS TO MAKE THE OPINION AS TO WHOM OF THE TAX EXPERT / ADVOCATE IS TO BE ENGAGED. A PERUSAL OF THE ABOVE APPLICATION SHOWS THAT THERE IS TOTAL NEGLIGENCE ON THE PART OF THE CONCERNING OFFICIALS IN FILING THE APPEAL. THEY ALL THE TIME REMAINED UNBOTHERED AND UNCONCERN ED ABOUT FILING THE APPEAL AND EVEN DID NOT BOTHER ABOUT THE EXPIRY OF THE LIMITATION PERIOD. THE CONDUCT OF THE OFFICIAL AS PER THE ABOVE FACTS IS AN EXAMPLE OF RED TAPISM. THE AFORESAID PLEA TAKEN BY THE ASSESSEE, I N OUR VIEW, DOES NOT CONSTITUTE A REASONABLE CAUSE FOR CONDONATION O F DELAY. 5. THE APEX COURT IN THE CASE OF POSTMASTER GENERA L VS. LIVING MEDIA INDIA LTD (2012) 3 SCC 563 HAS HELD THAT RED TAPISM WITHIN THE DEPARTMENT, SLOW MOVEMENT OF FILES, IMPERSONAL MACHINERY, BUREAUCRATIC METHODOLOGY IN MAKING DECISIONS ARE NO LONGER ACCEPTABLE AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY. THE 7 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR RELEVANT PART OF THE DECISION (SUPRA) OF THE HONBL E SUPREME COURT IS REPRODUCED AS UNDER: IT IS NOT IN DISPUTE THAT THE PERSON(S) CONCERNED WERE WELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLUD ING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE M ATTER BY WAY OF FILING A SPECIAL LEAVE PETITION IN THIS COUR T. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LI MITATION WHEN THE DEPARTMENT WAS POSSESSED WITH COMPETENT PE RSONS FAMILIAR WITH COURT PROCEEDINGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, WE ARE POSING A QUESTIO N WHY THE DELAY IS TO BE CONDONED MECHANICALLY MERELY BEC AUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT IS A PARTY B EFORE US. THOUGH WE ARE CONSCIOUS OF THE FACT THAT IN A M ATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIG ENCE OR DELIBERATE INACTION OR LACK OF BONA FIDES, A LIBERA L CONCESSION HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTAN CES, THE DEPARTMENT CANNOT TAKE ADVANTAGE OF VARIOUS EARLIER DECISIONS. THE CLAIM ON ACCOUNT OF IMPERSONAL MACHI NERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SE VERAL NOTES CANNOT BE ACCEPTED IN VIEW OF THE MODERN TECH NOLOGIES BEING USED AND AVAILABLE. THE LAW OF LIMITATION UND OUBTEDLY BINDS EVERYBODY, INCLUDING THE GOVERNMENT. IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT U NLESS THEY HAVE REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THERE WAS BONA FIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FO R SEVERAL MONTHS/YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDUR AL RED TAPE IN THE PROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEI R DUTIES WITH DILIGENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR THE GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EV ERYONE 8 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR UNDER THE SAME LIGHT AND SHOULD NOT BE SWIRLED FOR THE BENEFIT OF A FEW. 6. FURTHER IN THE CASE OF AMALENDU KUMAR BERA V. STATE OF WEST BENGAL (2013) 4 SCC 52, THE APEX COURT HAS HELD AS UNDER: TRUE IT IS, THAT COURTS SHOULD ALWAYS TAKE LIBERAL APPROACH IN THE MATTER OF CONDONATION OF DELAY, PARTICULARLY WHEN THE APPELLANT IS THE STATE BUT IN A CASE WHERE THERE ARE SERIOUS LACHES AND NEGLIGENCE ON THE PART OF THE STATE IN CHALLENGING THE DECREE PAS SED IN THE SUIT AND AFFIRMED IN APPEAL, THE STATE CANNO T BE ALLOWED TO WAIT TO FILE OBJECTION UNDER SECTION 47 TILL THE DECREE HOLDER PUTS THE DECREE IN EXECUTION. MERELY BECAUSE THE RESPONDENT IS THE STATE, DELAY I N FILING THE APPEAL OR REVISION CANNOT AND SHALL NOT BE MECHANICALLY CONSIDERED AND IN THE ABSENCE OF SUFFICIENT CAUSE DELAY SHALL NOT BE CONDONED. THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN T HE CASES CITED (SUPRA), IS SQUARELY APPLICABLE TO THE CASE IN HAN D. 7. WE, THEREFORE, DO NOT FIND ANY JUSTIFIED REASON TO CONDONE THE DELAY. THE APPLICATIONS FOR CONDONATION OF DELAY AR E, THEREFORE, DISMISSED AND IN CONSEQUENCE TO WHICH, THE APPEALS FILED BY THE ASSESSEE ARE ALSO HEREBY DISMISSED. 9 ITA NOS. 59 & 60-CH D/2019 THE SUB REGISTRAR/ JOINT REGISTRAR, HAMIRPUR IN THE RESULT, BOTH THE APPLICATIONS FILED BY THE ASSESSEE ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2019 SD/- SD/- ( . . / N.K. SAINI) ( ! / SANJAY GARG) '#$ / VICE PRESIDENT %& / JUDICIAL MEMBER DATED : 20.12.2019 .. 2*&)3454) / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. &' '$ / THE RESPONDENT 3. , 6) / CIT 4. , 6) ( )/ THE CIT(A) 5. 47 &)8 , . 8 , 9:;< / DR, ITAT, CHANDIGARH 6. ;= - / GUARD FILE 2 , / BY ORDER, > / ASSISTANT REGISTRAR