GUPTA GEMHOUSE P.LTD, MUMBAI V. ITO WD 1(1)(4), MUMBAI

ITA 6202/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3488 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 25-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 23-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K RAVIKIRAN
• Assessee Lawyers: F V IRANI
• Keywords: Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI ASHWANI TANEJA , ACCOUNTANT MEMBER ITA NO. : 6202 /MUM/201 4 (ASSESSMENT YEAR: 200 7 - 0 8 ) GUPTA GEMHOUSE PVT LTD. , METRO HOUSE, 2 ND FLOOR, M G ROAD, MUMBAI - 400 020 . PAN: AAACG 1992 L VS INCOME TAX OFFICER - 1(1)( 4 ) , R. NO. 531A , 5 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 02 0 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI F V I RAN I RESPONDENT BY : SHRI K RAVI KI RAN /DATE OF HEA RING : 25 - 05 - 201 6 / DATE OF PRONOUNCEMENT : 25 - 05 - 2016 ORDER , : PER AMIT SHUKLA , J M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX AP PEALS [ CIT(A) ] - 1 MUMBAI, DATED 05.01.2010 FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 2006 - 07. 2 GUPTA GEMHOUSE PVT LTD. ITA 6202 /MUM/201 4 2. AT THE OUTSET, IT IS NOTICED THAT, APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION BY 1225 DAYS. IN SUPPORT OF THE CONDONATION OF DELAY, THE ASSESSEE HAS MADE FOLLOWING AVERMENTS IN THE AFFIDAVIT: - AFFIDAVIT OF MR. GURUDAYAL KHANDELWAL, DIRECTOR OF GUPTA GEMHOUSE PVT LTD. THAT I THE NAME DEPONENT, AM WELL CONVERSANT WITH THE FACTS DEPOSED TO BELOW: 1 . THAT THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) WAS RECEIVED ON 17 TH APRIL 2010 CONFIRMING THE DISALLOWANCE OF SHORT TERM CAPITAL LOSSES. 2 . THAT THE TIME FOR FILING OF THE APPEAL BEFORE THE TRIBUNAL WAS EXPIRED ON 16 TH JUNE 2010. 3 . THAT THE COMPANY HAD CLOSED DOWN I TS BUSINESS AND DID NOT EXPECTED ANY INCOMES IN FUTURE. THEREFORE WE DO NOT EXPECT THE CARRY FORWARD OF SHORT TERM CAPITAL LOSES TO BE SET OFF IN FUTURE. HENCE WE DID NOT PURSUED THE APPEAL FURTHER TO ITAT. 4 . THAT THE PENALTY ORDER WAS PASSED ON 28.03.2012 LEVYING THE PENALTY ON DISALLOWANCE OF SHORT TERM LOSSES. DURING THE COURSE OF CONSULTATION WITH THE SENIOR COUNCIL REGARDING THE PENALTY, WE WERE SUGGESTED TO FILE APPEAL AGAINST THE QUANTUM ORDER BEFORE THE HONBLE ITAT. ACCORDINGLY, THE APPEAL BEFORE TH E TRIBUNAL WAS FILED ON 23 RD OCTOBER, 2013. 5 . THAT THERE IS DELAY IN FILING OF APPEAL BY 1225 DAYS. 3. THE LD. COU NSEL, SHRI F V IRANI SUBMITTED THAT WHEN THE ORDER OF THE COMMISSIONER (APPEALS) WAS RECEIVED CONFIRMING THE DISALLOWANCE OF SHORT - TERM - CA PITAL - LOSS, THE ASSESSEE D ID NOT FILE THE APPEAL BECAUSE THE BUSINESS OF THE ASSESSEE HAD CLOSED DOWN AND DID NOT EXPEC T ANY INCOME IN FUTURE. THEREFORE, IT WAS NO OCCASION OR REASON TO CARRY FORWARD THE SHORT - TERM - 3 GUPTA GEMHOUSE PVT LTD. ITA 6202 /MUM/201 4 CAPITAL - LOSS TO BE SET OFF IN FUTURE. LAT ER ON, WHEN PENALTY WAS LEVIED ON SUCH A DISALLOWANCE OF SHORT - TERM - CAPITAL - LOSS, THE ASSESSEE WAS ADVISED TO FILE THE APPEAL IN THE QUANTUM PROCEEDINGS. T HUS, IN THESE CIRCUMSTANCES, THE DELAY IN FILING THE APPEAL SHOULD BE CONDONED. IN SUPPORT, HE RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF N. BALAKRISHNA VS M. KRISHNAMURTHY (1997) 7 SCC 123 , WHEREIN THE HONBLE SUPREME COURT HELD THAT THE WORDS SUFFICIENT CAUSE SHOULD BE CONSTRUED LIBERALLY. HERE IN THIS CASE HE SUBMITTED THAT T H ERE IS NO MALA FIDE OR DELIBERATE DELAY BY THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR STRONGLY OBJECTED TO THE CONDONING THE DELAY ON THE GROUND THAT, NO REASONABLE CAUSE HAS BEEN GIVEN FOR SUCH A HUGE DELAY . 5. AFTER CONSIDERING THE SUBMISSIONS OF THE PARTIES AND ON PERUSAL OF THE AFFIDAVIT FILED, ON THE CONDONATION IT IS SEEN THAT THE ONLY GROUND TAKEN FOR CONDONATION OF DELAY IS THAT , AFTER THE RECEIVING OF THE QUANTUM ORDER, ASSESSEE WAS OF THE OPINION THAT NO PURPOSE WOULD BE SOLVED BY FILING THE AP PEAL AS IT DID NOT INTEND TO CARRY ON THE BUSINESS AND THERE W OULD BE NO INCOME IN FUTURE ON WHICH THE CARRY FORWARD OF SHORT - TERM - CAPITAL - LOSS WOULD HAVE BEEN SET OFF. THUS, THERE WAS A CONSCIOUS AND DELIBERATE DECISION NOT TO FILE THE APPEAL AT THAT TIME . IT HAS BEEN FURTHER STATED THAT, IT WAS ONLY WHEN PENALTY ORDER WAS PASSED ON 23.03.2012, THE ASSESSEE WAS 4 GUPTA GEMHOUSE PVT LTD. ITA 6202 /MUM/201 4 ADVISED TO FILE THE APPEAL. THIS PLEA ALSO SEEMS TO BE FARFETCHED AS THE PENALTY ORDER WAS PASSED ON 23.03.2012 , WHEREAS THE APPEAL BEFORE THE TRIB UNAL AGAINST THE QUANTUM ORDER HAS BEEN FILED ON 23.10.2013, THAT IS, AFTER MORE THAN 1 YEARS OF THE PASSING OF THE PENALTY ORDER. THUS, THE REASONS STATED BY THE ASSESSEE IN THE AVERMENTS MADE IN THE AFFIDAVIT CANNOT BE CONSTRUED AS SUFFICIENT CAUSE SO AS TO CONDONE THE DELAY OF 1225 DAYS . THERE WAS DELIBERATE DECISION BY THE ASSESSEE FOR NOT FILING THE APPEAL, THEREFORE, IT CANNOT BE HELD THAT THERE IS NO DELIBERATE DELAY IN FILING THE APPEAL. EVEN THE REASONS STATED IN THE AFFIDAVIT DO NOT SUBSTANTIAT E THE REASONABLE CAUSE GIVEN BY THE ASSESSEE, BECAUSE AS POINTED OUT ABOVE, EVEN AFTER THE PASSING OF THE PENALTY ORDER, THE APPEAL HAS BEEN FILED AFTER EXPIRY OF MORE THAN 1 YEARS. THUS, THE APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE BEING BARRED BY L IMITATION. 6. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY , 201 6 SD/ - SD/ - ( ) ( ) ( ASHWANI TANEJA ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 25 TH MAY , 201 6 5 GUPTA GEMHOUSE PVT LTD. ITA 6202 /MUM/201 4 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3 ) THE C IT ( A ) 1 , MUMB AI. 4 ) THE C IT 1 , MUMBAI. 5 ) , , / THE D.R. G BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGIS TRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS