Al-sami Cold Storage, Dowlaiswaram V. The Income Tax Officer, Ward-1(1), Rajahmundry

ITA 612/VIZ/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7898 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 22-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Reasonable cause
• Section: 148; 143(3); 133A

Judgement Text

आयकरअपीलीयअधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM (through web-based video conferencing platform) श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृ ष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अपील सं./I.T.A.No.611, 615 & 612/Viz/2019 (ननधधारण वर्ा / A.Y. : 2011-12, 2011-12 & 2013-14 respectively) Al-sami Cold Storage Plot No.16, 17 and 18 Industrial Colony, Dowleswaram [PAN : AAOFA8089R] Vs. Income Tax Officer Ward 1(1) Rajahmundry (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधथी की ओर से/ Appellant by : Shri G.V.N.Hari, AR प्रत्यधथी की ओर से / Respondent by : Shri SPG Mudaliar, DR सुनवधई की तधरीख / Date of Hearing : 09.02.2022 घोर्णध की तधरीख/Date of Pronouncement : 25.02.2022 आदेश /O R D E R Per Shri Duvvuru RL Reddy, Judicial Member : These appeals are filed by the assessee against the orders of Commissioner of Income Tax (Appeals) [CIT(A)], Rajamahendravaram dated 25.06.2019 and 12.07..2019 respectively for the Assessment Year (A.Y.)2011-12 and 2013-14. Since the grounds raised in these appeals are common, these appeals are clubbed, heard together and a common order is being passed for the sake of convenience as under. The only grievance of the assessee is that the Ld.CIT(A) dismissed all the above appeals in- limine without condoning the delay in filing the appeals. 2 I.T.A. No.611, 615 & 612, A.Y. 2011-12 & 2013-14 Al Sami Cold Storage, Dowleswaram 2. Brief facts of the case are that the assessee is a firm engaged in the business of buffalo meat processing and export of finished product. The assessee firm filed it’s return of income for the A.Y.2011-12 and 2013-14 admitting total income of Rs.14,22,540/- and Rs.23,28,050/- respectively. Subsequently, the case was selected for scrutiny and the assessments were completed u/s 143(3) of the Act determining total income of Rs.37,62,050/- for the A.Y.2011-12 and Rs.39,41,004/- for the A.Y.2013- 14. Further, a survey u/s 133A of the Act was conducted on 21.01.2014. Notice u/s 148 dated 26.03.2015 was issued to the assessee for the A.Y.2011-12 and in response to the notice, the assessee filed it’s reply. After considering the reply given by the assessee, the AO made the addition of Rs.8,68,800/- and completed the assessment. The penalty u/s 271(1)(c) was sustained and imposed penalty of Rs.2,68,460/-. 3. On being aggrieved, the assessee preferred appeals before the Ld.CIT(A) with a delay of 859 days, 669 days and 755 days. The assessee had made applications on the date of filing of the appeals for condonation of delay and the main reasons given in the condonation petition was that the accountant of the assessee could not file the appeals since he has been suffering from health problems which led to severe heart attack. The accountant has undergone by-pass surgery for the same. It was the 3 I.T.A. No.611, 615 & 612, A.Y. 2011-12 & 2013-14 Al Sami Cold Storage, Dowleswaram further submission of the assessee that the assessee was under the impression that the appeals for the A.Y. 2011-12 and 2013-14 have been filed. On 22.01.2018, the assessee had come to know that it’s bank accounts have been attached by the Assessing Officer u/s 226(3) of the Act as part of recovery proceedings of the tax demand. Thereafter, the assessee preferred appeals against the assessment orders with applications for condonation of delay. 4. After considering the above submissions, the Ld.CIT(A) dismissed the assessee’s appeals saying that there is huge delay in filing the appeals and the reason shown by the assessee is not sufficient ground to condone the delay of 859 days, 669 days and 755 days. 5. On being aggrieved, the assessee preferred appeal before the Tribunal, raising the following grounds : a. The learned Commissioner of Income Tax (Appeals) erred in not condoning the delay in filing the appeal; b. The learned Commissioner of Income Tax (Appeals) should have observed that the appellant is prevented by a reasonable cause in filing the appeal belatedly; c. The Commissioner of Income Tax (Appeals) should have seen that on merits the re-assessment proceedings are invalid. d. In view of the legal precedents, the learned Commissioner 4 I.T.A. No.611, 615 & 612, A.Y. 2011-12 & 2013-14 Al Sami Cold Storage, Dowleswaram of Income Tax (Appeals) should have condoned the delay in filing the appeal, as the orders passed by the authority had no legal validity /jurisdiction; And e. Any other grounds that may be urged at the time of hearing of the appeal. The Ld.Counsel for the assessee submitted that the accountant of the assessee firm could not file the appeals since he has undergone by- pass surgery due to heart attack. The assessee was under the impression that all the appeals were filed and pending before the Ld.CIT(A). It was the further submission of the assessee that the assessee came to know about non-filing of the appeals only after his bank accounts were attached by the AO u/s 226(3) of the Act as part of the recovery proceedings of the tax demand. There is no wilful negligence or lapse on the part of the assessee firm. Therefore, pleaded for condonation of delay. 6. On the other hand, the Ld.DR submitted that the assessee did not file any evidence before the Ld.CIT(A) to establish the fact that the accountant has undergone by-pass surgery for heart attack. Even before the Tribunal, the assessee did not place any material to establish the said fact. Apart from this, there is huge delay in filing the appeals and the reasons mentioned in the condonation petition is not at all valid ground 5 I.T.A. No.611, 615 & 612, A.Y. 2011-12 & 2013-14 Al Sami Cold Storage, Dowleswaram to condone the delay and the assessee firm has continuously run it’s business and filed it’s return of income for all subsequent years. Therefore, the Ld.DR pleaded for upholding the orders of the Ld.CIT(A). 7. We have heard both the parties and perused the material placed on record. It is undisputed fact that there is huge delay in filing these three appeals i.e. 859 days, 669 days and 755 days. Now the basic issue to be examined is as to whether the assessee had sufficient cause for not presenting the appeals within time allowed u/s 249(2) of the Act. On this aspect, it was submitted that non filing of the appeal was due to ill health of the accountant. It is admitted fact that the assessee is a firm and not an individual. The assessee is having many employees and it is binding duty of the assessee to verify whether the appeals were filed before the appropriate forum or not. As observed by the Hon’ble Apex Court, in many cases, the law assist those who are vigilant and not those who sleep over their rights. In this case, the assessee is not at all vigilant and is also negligent in pursuing of filing of appeals. However, the period of limitation should not come as a hindrance to do substantial justice. In this case, the assessee has not given any sufficient and reasonable cause to explain the huge delay in filing of the appeals. After considering the above 6 I.T.A. No.611, 615 & 612, A.Y. 2011-12 & 2013-14 Al Sami Cold Storage, Dowleswaram discussions, we are of the firm view that there is no other alternative for the Ld.CIT(A) to reject all the appeals at the threshold. We feel that the delay has not been properly explained by the assessee and it has not brought any material on record to show sufficient cause for such delay. Therefore, there is no merit in considering the grounds of appeals raised by the assessee and accordingly dismissed. 8. In the result, all the appeals filed by the assessee are dismissed. Order pronounced in the open court on 25 th February, 2022. Sd/- Sd/- (एस बालाकृ ष्णन) (द ु व्वूरु आर.एल रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER Dated : 25 .02.2022 L.Rama, SPS आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– Al-sami Cold Storage, Plot No.16, 17 and 18, Industrial Colony, Dowleswaram 2. रधजस्व/The Revenue – Income Tax Officer, Ward 1(1), Rajahmundry 3. The Pr.Commissioner of Income Tax, Rajamahendravaram 4. The Commissioner of Income Tax (Appeals), Rajamahendravaram 5. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम/DR,ITAT, Visakhapatnam 6.गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam