ACCESS DIAMONDS PRIVATE LIMITED, MUMBAI V. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-7(1), MUMBAI

ITA 601/MUM/2023

AI Insights

Access Diamonds P. Ltd appealed against the order of the Commissioner of Income Tax (Appeals) which affirmed the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961. The appeal was filed with a significant delay of 1287 days, for which the assessee sought condonation, claiming negligence on the part of their Authorized Representative. The Tribunal, however, found no substantial evidence or documentation to support the claim of negligence and thus dismissed the appeal in limine, emphasizing the legal maxim 'vigilantibus, non dormientibus, jura subveniunt' which translates to 'the law assists those who are vigilant, not those who sleep over their rights'.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124817 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-04-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 26-02-2023
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 271(1)(c); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI BR BASKARAN, AM & SHRI N K CHOUDHRY, JM आयकरअपीलसं./ I.T.A. No.601/Mum/2023 (निर्धारणवर्ा / Assessment Year: 2012-13) Access Diamonds P. Ltd Office No. 15, Floor, Mezzanine, Laxmidas Khimji Market, 36/38, Kalbadevi Road, Vitthalwadi, Mumbai- 400 002 बिधम/ Vs. DY. Commissioner Of Income Tax, Central Circle- 7 (1) Aayakar Bhavan, Mumbai, Maharashtra- 400 020 स्थायीलेखासं./जीआइआरसं./PAN No AAHCA0551C (अपीलाथी/Appellant) : (प्रत्यथी / Respondent) अपीलाथीकीओरसे/ Appellant by : None प्रत्यथीकीओरसे/Respondent by : Shri Manoj Kumar Sinha, Sr. AR. सुनवाईकीतारीख/ Date of Hearing : 24.04.2023 घोषणाकीतारीख / Date of Pronouncement : 27.04.2023 आदेश / O R D E R Per N K Choudhry, Judicial Member: This Appeal has been preferred by the Assessee against the order dated 21.06.2019 impugned herein passed by the Ld. Commissioner of Income Tax (Appeals) 49 Mumbai, (in short „Ld. Commissioner‟) u/s. 250 of the Act 1961 ( in short „the Act‟) for the AY: 2012-13, whereby the Ld. Commissioner affirmed the levy of penalty imposed u/s. 271(1)(c) of the Act vide order dated 13 th March 2019 by the Assessing Officer. 2 I . T . A . N o . 601/ M u m / 2 023 Access Diamond P. Ltd LL 2. Though notice for the date of hearing on 24-04-2023 was sent to the Assessee at the address mentioned in Form 36 through post , however the same retuned back with postal remarks “Not known/Addressee can not be located”. Registry do not have any alternative address, hence we are constrained to decide this appeal as ex-parte. 3. At the outset, we observe that there is delay of 1287 days in filling of the instant appeal. The Assessee by filling an application for condonation delay claimed that subsequent to the communication of the impugned order, the Assessee had appointed an Ld. Authorized Representative (AR) for representing, filling, Act, plead and appear before competent authority of income tax on behalf of the Assessee. Unfortunately, the Ld. AR failed to perform his obligation to file the appeal within due time as prescribed by the law. Consequently, there has been a delay in filling of appeal by 1287 days. The Assessee believed that necessary compliance including reply to the notices, representing before the authorities and filing the appeal before the income tax authorities were performed by the AR, however, realized that the appeal against the impugned order has not been preferred before the Hon‟ble Income Tax Appellate Tribunal (ITAT). The Assessee submits that the delay in filling the Appeal was caused due to negligence by the then AR. The Assessee 3 I . T . A . N o . 601/ M u m / 2 023 Access Diamond P. Ltd LL believes that its matter is good on merit and if the delay is not condoned, it will cause irreparable harm, loss, injury and injustice to the Assessee. 4. On the contrary, the Ld. DR refuted the claim of the Assessee. 5. We have given thoughtful consideration to the peculiar facts and circumstances of the case and observe that the Assessee mainly claimed that delay was on account of omission on the part of Ld. AR who was appointed to look after tax matters. The Assessee neither mentioned the name of the authorized representative nor filed any document or affidavit of such Ld. AR to substantiate its claim qua negligence by the appointed Ld. AR if any and for condonation of delay, therefore in our considered view, the allegations about the omission on the part of the Ld. AR are unethical. In the absence of supportive material, such type of allegation cannot be encouraged until and unless the person against whom allegation made, honestly and clearly concede the same or the Assessee is able to demonstrate peculiar facts and 4 I . T . A . N o . 601/ M u m / 2 023 Access Diamond P. Ltd LL circumstances or document(s) in support of allegation. The cause shown by the Assessee do not appears to be reasonable and sufficient, therefore in our considered view, the Assessee did not act carefully and remained negligent, hence considering the peculiar facts, the application for condonation of delay, is liable to be dismissed in order to give effect to the principle that law does not assist the person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law. The, principle which forms the basis of this rule is expressed in the maxim vigilantibus, non dormientibus, jura subveniunt (Law assists those who are vigilant and not those who sleep over their rights). 6. On the aforesaid reasons and in the absence of supportive documents, we are inclined not to condone the delay of 1287 days in filling the instant appeal. Consequently, the Appeal filed by the Assessee is liable to be dismissed in limine. 5 I . T . A . N o . 601/ M u m / 2 023 Access Diamond P. Ltd LL 7. In the result, Assessee‟s Appeal stands dismissed in limine. Orders pronounced in the open court on 27-04-2023. Sd/- Sd/- (B R Baskaran) (N K Choudhry) Accountant Member Judicial Member मुंबई Mumbai Ms.Urmila आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. ववभागीयप्रवतवनवध, आयकरअपीलीयअवधकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER, .उि/सहधयकिंजीकधर (Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai