Sh. Ramesh Mittal, Panchkula V. ACIT, Chandigarh

ITA 60/CHANDI/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0096 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 02-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHDR
• Keywords: Period of limitation; Question of law; Reasonable cause; Condonation of delay
• Section: 143(3); 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 60/CHD/2016 ASSESSMENT YEAR: 2004-05 SHRI RAMESH MITTAL , VS THE ACIT, HOUSE NO. 515, CENTRAL CIRCLE-II, SECTOR 16, CHANDIGARH. PANCHKULA. PAN: AFSPM4366A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACHIN JAIN RESPONDENT BY : SHRI MANJIT SINGH,DR DATE OF HEARING : 19.04.2016 DATE OF PRONOUNCEMENT : 22.04.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-III GURGAON DATED 24.12.2015 FOR ASSESSMENT YEAR 2004-05. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT SEARCH OPERATION UNDER SECTION 132(1) OF THE INCOME TAX AC T WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 16.01.2009. THE ASSESSING OFFICER NOTE D THAT ASSESSEE HAS NOT FILED RETURN OF INCOME UNDER SECTION 139 OF THE ACT. STATUTORY NOTICE UNDER SECT ION 153A(1) WAS ISSUED TO THE ASSESSEE, IN RESPONSE TO THAT ASSESSEE FILED THE RETURN OF INCOME ON 25.11.2009 DECLARING INCOME OF RS. 78,810/-. THE ASSESSING OF FICER 2 FOUND THAT ASSESSEE IS A PARTNER IN VARIOUS FIRMS A ND RECEIVED SALARY AND INTEREST INCOME FROM PARTNERSHI P FIRMS AND THE SAME HAVE NOT BEEN DECLARED IN THE RE TURN OF INCOME, WHICH NEEDS TO BE BROUGHT TO TAX. THE ASSESSING OFFICER, ACCORDINGLY, MADE ADDITION OF RS . 1,78,230/- AND COMPUTED TOTAL INCOME AT RS.2,57,040 /- AND COMPLETED THE ASSESSMENT VIDE ORDER DATED 24.08.2011 IN THE STATUS OF INDIVIDUAL UNDER SECT ION 153A READ WITH SECTION 143(3) OF THE ACT. 3. THE ASSESSEE FILED THE APPEAL AGAINST ASSESSMENT ORDER BEFORE LD. CIT(APPEALS) AND AS PER IMPUGNED ORDER, THE APPEAL HAS BEEN INSTITUTED ON17.11.2014. THE LD. CIT(APPEALS) OBSERVED THAT IN THIS CASE, TH ERE HAS BEEN A DELAY OF THREE YEARS IN FILING OF THE AP PEAL. THE ASSESSEE HAS REQUESTED FOR CONDONATION OF DELAY WHICH HAS BEEN ATTRIBUTED TO OVERSEAS TRAVEL AND ASSESSEE REQUESTED FOR CONDONATION OF DELAY. THE SUBMISSION OF THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT ASSESSEE IS INDIVIDUAL AND FILED ORIGINAL RETURN OF INCOME FOR ASSESSMENT YEAR UNDER APPEAL ON 31.10.20 04 DECLARING TOTAL INCOME OF RS. 1,78,527/- WHICH CONS IST OF INTEREST AND SALARY RECEIVED FROM VARIOUS FIRMS. THE RETURN FOR SHRI RAMESH MITTAL, HUF WAS ALSO FILED DECLARING INCOME OF RS. 78,810/-. THE ASSESSEE REC EIVED NOTICE UNDER SECTION 153A AS INDIVIDUAL AND ASSES SEE 3 FILED RETURN OF INCOME ACCORDINGLY. HOWEVER, INCOM E OF HUF HAS BEEN DECLARED IN INDIVIDUAL RETURN. THIS MISTAKE DID NOT COME IN THE KNOWLEDGE OF THE ASSESS EE THEREFORE, NO APPEAL WAS FILED. THE ASSESSEE FILED APPEAL OF THE PENALTY MATTER AND THEREAFTER, IT CAM E TO THE KNOWLEDGE OF THE ASSESSEE THAT THERE IS A MISTA KE IN DECLARING THE INCOME. THEREFORE, PRESENT APPEAL WA S FILED AND ASSESSEE REQUESTED FOR CONDONATION OF DEL AY. 4. THE LD. CIT(APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT DELAY IS ATTRIBUTED DUE TO RECEIPT OF ORDER WHEN PENALTY ORD ER HAVE BEEN RECEIVED, THEREFORE, SAME CANNOT BE CONSIDERED TO BE REASONABLE CAUSE FOR CONDONING THE DELAY. THE LD. CIT(APPEALS), ACCORDINGLY, DISMISSE D THE REQUEST FOR CONDONATION OF DELAY AND DISMISSED APPE AL OF THE ASSESSEE BEING TIME BARRED. 5. AFTER CONSIDERING RIVAL CONTENTIONS, WE DO NOT F IND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE ASSES SING OFFICER COMPUTED THE INCOME IN THE PROCEEDINGS UNDE R SECTION 153A READ WITH SECTION 143(3) OF THE INCOME TAX ACT BECAUSE SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER MADE THE ADDITION IN THE ASSESSMENT ORDER THEREFORE, IF ASSESSEE WAS AGGRIEVED AGAINST THE ORDER MADE BY THE ASSESSING OFFICER, HE SHOULD HAVE FILED THE APPEAL BEFORE LD. CIT(APPEALS) WITHIN THE PERIOD OF LIMITATION. THE ASSESSEE KEPT ON WAITING TILL THE PENALTY MATTER WA S 4 TAKEN UP FOR HEARING. EVEN THE ASSESSEE DID NOT INT IMATE THE ASSESSING OFFICER AT ASSESSMENT STAGE IF ANY RE GULAR RETURN HAS BEEN FILED UNDER SECTION 139(1) OF THE I NCOME TAX ACT. THE ASSESSEE ONLY AT THE APPELLATE STAGE INFORMED THE LD. CIT(APPEALS) THAT ORIGINAL RETURN HAVE BEEN FILED UNDER SECTION 139 OF THE ACT. IT IS, TH EREFORE, A CASE OF GROSS NEGLIGENCE ON THE PART OF THE ASSES SEE IN NOT DISCLOSING THE CORRECT FACTS BEFORE THE ASSESSI NG OFFICER DESPITE SEARCH HAS BEEN CONDUCTED IN THIS C ASE UNDER SECTION 132(1) OF THE ACT. THERE IS A DELAY OF MORE THAN THREE YEARS IN FILING APPEAL BEFORE LD. CIT(APPEALS) AND NO REASONABLE CAUSE/SUFFICIENT CAU SE HAVE BEEN DISCLOSED BY THE ASSESSEE FOR FILING THE APPEAL BELATEDLY BEFORE LD. CIT(APPEALS). REASONABLE CAUS E MEANS WHICH PREVENTS A REASONABLE MAN OF ORDINARY PRUDENCE ACTING UNDER NORMAL CIRCUMSTANCES WITHOUT NEGLIGENCE OR INACTION OR WANT OF BONAFIDE. SINCE I N THE INSTANT CASE, ASSESSEE WAS GROSS NEGLIGENT AND DID NOT TAKE ANY ACTION WITHIN THE REASONABLE TIME, THEREFO RE, ASSESSEE FAILED TO EXPLAIN THE DELAY IN FILING THE APPEAL BEFORE LD. CIT(APPEALS) WITHIN THE PERIOD OF LIMITA TION. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS RAM MOHAN KABRA 257 ITR 773 DID NOT CONDONE THE DELAY OF FEW DAYS IN FILING THE APPEAL. IT WAS HEL D AS UNDER : WHETHER THE LEGISLATURE SPELLS OUT A PERIOD OF LIM ITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND- GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PRO VISIONS RELATING TO THE 5 SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. AUTHORITIES EXERCISING JUDI CIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, THAT PER SE, WOULD NOT MAKE SUCH CON TROVERSY A QUESTION OF LAW'. SO LONG AS SUCH DECISION OF THE AUTHORITY IS IN CONFORMITY PRINCIPLE OF LAW AND IS APPARENTLY A PRU DENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH E XERCISE OF DISCRETION. ONCE THE CONCERNED AUTHORITY APPLIES ITS MIND AND D ECLINES TO CONDONE THE DELAY IN FILING THE APPEAL FOR GOOD AND APPROPR IATE REASONS, IT CANNOT GIVE RISE TO A QUESTION OF LAW. HELD, THAT SPECIFIC REASONS HAD BEEN GIVEN BY THE T RIBUNAL FOR REFUSAL TO CONDONE THE DELAY IN FILING THE APPEAL WHICH WER E NOT ONLY LOGICAL BUT REFLECTED THE CONDUCT OF THE DEPARTMENT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD INSPITE OF SEEKING TIME. NO QU ESTION OF LAW AROSE FROM THE ORDER. 6. CONSIDERING THE FACTS AND CIRCUMSTANCES ABOVE, I N THE LIGHT OF THE ABOVE DISCUSSION, WE DO NOT FIND A NY ERROR IN THE ORDER OF THE LD. CIT(APPEALS) IN NOT CONDONING THE DELAY IN FILING APPEAL BEFORE HIM. TH E APPEAL OF THE ASSESSEE THUS, HAS NO MERIT, SAME IS LIABLE TO BE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN ) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD