BHAVYA PROJECTS P.LTD, MUMBAI V. DCIT CEN CIR 36, MUMBAI

ITA 6241/MUM/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88499 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-03-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 17-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI , BEFORE SHRI D. MANMOHAN, VICE PRESIDENT (M.Z.) AN D SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.6241 TO 6243/MUM/2010 (A.Y.2004-05 TO 2006-07) M/S. BHAVYA PROJECTS PVT. LTD. UNIT NO.303, BYCULLA SERVICE INDL. ESTATE DADAJI KONDEO MARG, BYCULLA (E) MUMBAI-400 027. GIR NO./PAN : AACCB 5080 G (APPELLANT ) VS. THE DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE-36, AAYAKAR BHAVAN, M.K. ROAD MUMBAI. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI VIJAY KUMAR BORA DATE OF HEARING : 02 /0 3 /201 5 DATE OF PRONOUNCEMENT : 02 /0 3 /2015 ORDER PER CHANDRA POOJARI, A.M: THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST DIFFERENT ORDERS OF LD. CIT(A) FOR THE ASSESSMENT YEAR 2004-0 5, 2005-06 AND 2006- 07. SINCE COMMON ISSUE IS RAISED IN ALL THE THREE A PPEALS THEY ARE TAKEN TOGETHER FOR ADJUDICATION OR THE SAKE OF CONVENIENC E. THE SOLITARY GROUND IN ALL THESE APPEALS IS WITH REGARD TO LEVY OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT. 2. NONE APPEARED FOR THE ASSESSEE. WE HAVE TAKEN UP THE CASES TO DECIDE THE DISPUTE INVOLVED IN THESE APPEALS AFTER HEARING THE LD. DR. 2 ITA NO.6241 T O 6243/10 3. AT THE OUTSET THE LD. DR SUBMITTED THAT THERE WA S A DELAY OF 34 DAYS IN FILING THESE APPEALS. ADMITTEDLY THERE WAS A DEL AY OF 34 DAYS IN FILING THESE APPEALS BEFORE THIS TRIBUNAL BY THE ASSESSEE. THE ASSESSEE FILED THE PETITIONS BEFORE US SEEKING THE CONDONATION OF DELA Y OF 34 DAYS IN FILING THE APPEAL BELATEDLY. THE ASSESSEE EXPLAINED THE DELAY FOR FILING THE APPEALS IN ITS PETITION FOR CONDONATION THAT AT THE TIME OF FI LING THE APPEAL, THE COMPANY WAS DIRECTED TO MAKE ITS PAYMENT ONLINE BY WAY OF E-PAYMENT. THE COMPANY HOWEVER, DID NOT HAVE ANY E-PAYMENT F ACILITY AND FURTHER A FEW OF THE DIRECTORS WERE NOT IN TOWN SO AS TO ENAB LE THE COMPANY TO SANCTION THE FACILITY. THE SAME FACILITY WAS HOWEVE R, AVAILED AS SOON AS IT WAS POSSIBLE. THE ABOVE HAD HOWEVER RESULTED IN A D ELAY IN FILING THE APPEAL. 4. WE HAVE CAREFULLY GONE THROUGH THE REASONS ADVAN CED BY THE ASSESSEE IN ITS PETITION. WE FIND THAT THE REASONS ADVANCED BY THE ASSESSEE CANNOT BE SAID TO BE GOOD AND SUFFICIENT TO CONDONE THE DELAY. THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE ASSESSEE WAS HAVING NO E- PAYMENT FACILITY FOR PAYMENT OF APPEAL FEE. THE AS SESSEE HAS NOT SHOWN ANY MANDATORY RULE FOR PAYMENT OF APPEAL FEE BY WAY OF E-PAYMENT DURING THE TIME OF PAYMENT OF FILING PAYMENT FOR THESE APP EALS. THE DELAY CANNOT BE CONDONED BECAUSE THE ASSESSEES CASE CALLS FOR S YMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF IN GRANT ING THE INDULGENCE AND CONDONING THE DELAY. IT MUST BE PROVED BEYOND SHADO W OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGE NCE WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LI MITATION PROVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE 3 ITA NO.6241 T O 6243/10 PROVISIONS. THE CAUSE FOR THE DELAY IN FILING THE A PPEAL WHICH BY DUE CARE AND ATTENTION SHOULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF LIMITATION PROVISION WHERE NO NEGLIG ENCE, NOR INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE ASSESSEE A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE S UBSTANTIAL JUSTICE. 5. IN THE PRESENT CASE, WE FIND THAT THE ASSESSEE J USTIFIED THE DELAY ONLY WITH NON AVAILABILITY OF E-PAYMENT FACILITY AND A LSO NON AVAILABILITY OF DIRECTOR TO SANCTION THE FACILITY. THE ASSESSEE HAS NOT MADE OUT A CASE WHETHER NO DIRECTORS WERE AVAILABLE TO SANCTION THE PAYMENT FOR FILING PAYMENT OF FILING FEE. THE ASSESSEE HAS ALSO NOT SH OWN WHAT STEPS WERE TAKEN FOR THE PAYMENT OF FEES IN THE ABSENCE OF E- PAYMENT. IN OUR OPINION THE DELAY WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED DELAY BY EXERCISING DUE CARE AND ATTENTION. IN OUR OPINION THERE EXISTS NO SUFFICIENT AND GOOD REASON FOR DELAY OF 34 DAYS. WE, THEREFORE, FIND NO GOOD AND SUFFICIENT REASON TO CONDONE THE DELAY. ACCORDINGLY, DELAY OF 34 DAYS IS NOT CONDONED AND APPEALS ARE DISMISSED WITHOUT CONDONIN G THE DELAY. 6. IN THE RESULT, ALL THE APPEAL IN ITA NOS. 6241/1 0, 6242/10 AND 6243/10 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/03/2015 ! ' # $%& 02/03/2015 ' SD/- SD/- ( / D. MANMOHAN ) ( / CHANDRA POOJARI ) / VICE PRESIDENT(M.Z.) / ACCOUNTANT MEMBER MUMBAI; $% DATED 02 /03/2015 . % . ./JV, SR. PS 4 ITA NO.6241 T O 6243/10 ()* ()* ()* ()* +*!) +*!) +*!) +*!) / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0' ()% , , / DR, ITAT, MUMBAI 6. '12 3 / GUARD FILE. % % % % / BY ORDER, .*) () //TRUE COPY// 4 44 4 / 5 5 5 5 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI