Shri Patel BharatbhaiChaturbhai, Nadiad V. The CIT-II, Baroda

ITA 632/AHD/2012

• Counselvise Citation: 63220514 RSA 2012
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 14-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV SRDR
• Assessee Lawyers: S P BHATT
• Keywords: Application of stay; Reasonable cause; Condonation of delay
• Section: 271(1)(c); 119(2)(b); 12AA; 250; 147; 54; 263; 132; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.632/AHD/2012 ASSESSMENT YEAR:2001-02 ITA NO.633/AHD/2012 ASSESSMENT YEAR:2000-01 PATEL BHAATBHAI CHATURBHAI, LALA PASSA, PIJ, TL. NADIAD, PIN-387230 PAN NO.ADDPP1519P PATEL MANHARBHAI MANIBHAI, NR. BHIVENDI TERRACE, PIJ, TAL. NADIAD PIN-387230 PAN NO.ADUPP231C V/S . V/S . COMMISSIONER OF INCOME-TAX-II, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA 390 007 COMMISSIONER OF INCOME-TAX-II, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA 390 007 (APPELLANT) .. (RESPONDENT) /BY ASSESSEE SHRI S.P. BHATT, AR /BY RESPONDENT SHRI B.L. YADAV, SR-DR /DATE OF HEARING 08-05-2012 /DATE OF PRONOUNCEMENT 11-05-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE DIFFERENT ASSESSEE ARE DI RECTED AGAINST THE ORDER PASSED U/S 119(2)(B) OF THE INCOME-TAX ACT, 1 961 (HEREINAFTER REFERRED TO THE ACT) OF LD. COMMISSIONER OF INCOME-TAX-II, BA RODA DATED 22-01-2009 FOR ASSESSMENT YEARS 2001-02 & 2000-01. THE ASSESSEE HA S ALSO FILED PETITIONS FOR CONDONATION OF DELAY. ITA NO.632-633/AHD/2012 A.YS. 01-02 & 00-01 CHATURBHAI B PATEL & MANIBHAI M PATEL V. CIT-II BRD PAGE 2 2. THE FACTS BEING IDENTICAL AND FOR THE SAKE OF CO NVENIENCE WE PASS A CONSOLIDATED ORDER. THE FACTS IN BRIEF ARE THAT ASS ESSEE IN THIS APPEAL HAD MADE A PETITION BEFORE THE LD. CIT-II, BARODA U/S 1 19(2)(B) OF THE ACT. AND REQUESTED CONDONATION OF DELAY IN FURNISHING RETURN OF INCOME FOR A.Y. 2001- 02. THE SAID PETITION WAS DISMISSED VIDE ORDER DATE D 22-01-2009 THEREAFTER, THE ASSESSEE MADE APPLICATION FOR RECTIFICATION ON MISTAKE U/S.154(2)(B) OF THE ACT. THE SAID APPLICATION WAS ALSO REJECTED VIDE OR DER DATED 21-07-2009 BEING NOT MAINTAINABLE. THE ASSESSEE PURSUED THE MATTER W ITH THE DEPARTMENT IN RESPECT OF HIS CLAIM OF REFUND. THE ASSESSEE WAS IN FORMED THAT HIS PETITION U/S 119(2)(B) WAS REJECTED AND THE APPLICATION U/S.154( 2)(B) WAS DISPOSED OF. THE COMMUNICATION READS AS UNDER:- PERUSAL OF YOUR LETTER REVEALS THAT YOU FILED RECT IFICATION APPLICATION U/S. 154(2)(B) OF I.T. ACT AGAINST THE ORDER UNDER SECTI ON 119(2)(B) OF THE I.T. ACT, 1961 AND THE SAME DOES NOT LIE AGAINST THE ABO VE MENTIONED ORDER. 3. LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE S UBMITTED THAT THE REPRESENTATION OF THE ASSESSEE HAS BEEN WRONGLY REJ ECTED BY LD. CIT AND THE RECTIFICATION U/S 154(2)(B) HAS ALSO BEEN REJECTED. IT IS SUBMITTED BY LD. AR THAT IN BOTH OF THESE CASES THE TAX WAS DEDUCTED AT SOURCE. THE ASSESSEE COULD NOT FILE INCOME TAX RETURN WITHIN TIME AND CO ULD NOT CLAIM REFUND. LD. AR SUBMITTED THAT INCOME OF THE ASSESSEE IS NOT TAXABL E. WHEN THE ASSESSEE APPROACHED TO HIS COUNSEL, HE WAS ADVISED TO FILE A N APPLICATION FOR CONDONATION OF DELAY FOR FURNISHING OF INCOME TAX R ETURN. LD. AR STATED THAT THE ASSESSEE BEING ILLITERATE AND WORKMAN WAS NOT AWARE OF THE PROCEDURE THAT FOR CLAIMING REFUND, HE WAS REQUIRED TO FILE INCOME TAX RETURN AND SUBMITTED THAT THE DELAY BE CONDONED AND APPEAL BE HEARD. 4. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE APPEAL IS NOT MAINTAINABLE AS NO APPEAL IS PRESCRIB ED AGAINST THE ORDER PASSED U/S. 119(2)(B) OF THE ACT AND HE SUBMITTED T HAT NO REASONABLE CAUSE HAS GIVEN FOR CONDONATION OF DELAY. ITA NO.632-633/AHD/2012 A.YS. 01-02 & 00-01 CHATURBHAI B PATEL & MANIBHAI M PATEL V. CIT-II BRD PAGE 3 5. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIALS AVAILABLE ON RECORD KEEPING IN VIEW PECULIARITY OF THE FACT THE DELAY IS CONDONED AND THE APPEALS ARE TAKEN UP FOR HEARING. AT THE OUTSET, IT IS FOUND THAT PRESENT APPEALS ARE NOT MAINTAINABLE AS IT IS EVIDENT FROM THE STATUTORY PROVISIONS U/S 253 OF THE ACT WHICH IS REPRODUCED HEREINBELOW:- 253. (1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH ORDER (A) AN ORDER PASSED BY A [DEPUTY COMMISSIONER (APPE ALS) [BEFORE THE 1SDT DAY OF OCTOBER, 1998] [OR, AS THE CASE MAY BE, A COMMISSIONER (APPEALS) UNDER [***] [SECTION 154, [***] SECTION 2 150, [SECTION 271(1)(C) , SECTION 271A OR SECTION 272A]; OR (B) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER C LAUSE (C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONE D UNDER SECTION 132A, AFTER THE 30 TH DAY OF JUNE, 1995, BUT BEFORE THE 1 ST DAY OF JANUARY, 1997; OR] [(BA) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 115VZC; OR] AN ORDER PASSED BY A COMMISSIONER [UNDER SECTION 12AA [OR UNDER CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G] OR] UNDER SECTION 263 [OR UNDER SECTION 271] [OR UNDER SECTION 272A][***] OR AN ORDER PASSED BY HIM UNDER SECTION 154 AMENDING HIS ORDER UNDER SECTION 263][OR AN ORDER PASSED BY A CHIEF COMMISSIONER OR A DIRECTOR GENERA L OR A DIRECTOR UNDER SECTION 272A; [OR]] (D) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER S UB-SECTION (3), OF SECTION 143 OR SECTION 147 IN PURSUANCE OF THE DIRE CTIONS OF THE DISPUTE RESOLUTION PANEL OR AN ORDER PASSED UNDER SECTION 1 54 IN RESPECT OF SUCH ORDER.] (2) THE COMMISSIONER MAY, IF HE OBJECTS TO ANY ORDE R PASSED BY A [DEPUTY COMMISSIONER (APPEALS)] [BEFORE THE 1ST DAY OF OCTOBER, 1998] [OR, AS THE CASE MAY BE, A COMMISSIONER (APPEALS)] UNDER [SECTION 154 OR] SECTION250, DIRECT THE [ASSESSING] OFFICER TO A PPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. (3) EVERY APPEAL UNDER SUB-SECTION(1) OR SUB-SECTIO N (2) SHALL BE FILED WITHIN SIXTY DAYS OF THE DATE ON WHICH THE ORDER SO UGHT TO BE APPEALED AGAINST IS COMMUNICATED TO THE ASSESSEE OR TO THE C OMMISSIONER, AS THE CASE MAY BE: [ PROVIDED THAT IN RESPECT OF ANY APPEAL UNDER CLAUSE (B) OF SUB-SECTION (1), THIS SUB-SECTION SHALL HAVE EFFECT AS IF FOR T HE WORDS SIXTY DAYS, THE WORDS THIRTY DAYS HAD BEEN SUBSTITUTED.] ITA NO.632-633/AHD/2012 A.YS. 01-02 & 00-01 CHATURBHAI B PATEL & MANIBHAI M PATEL V. CIT-II BRD PAGE 4 (4) THE [ASSESSING] OFFICER OR THE ASSESSEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE [DEPUTY COMMISSIONER (APPEALS) [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] HAS BEEN PREFERRED UNDER SUB-SECTION (1) OR SUB-SECTION (2) BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY N OT HAVE APPEALED AGAINST SUCH ORDER OR ANY PART THEREOF; WITHIN THIR TY DAYS OF THE RECEIPT OF THE NOTICE, FILE A MEMORANDUM OF CROSS-OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER, AGAINST ANY PART OF THE ORDER OF THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, TH E COMMISSIONER(APPEALS)], AND SUCH MEMORANDUM SHALL B E DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE AN APPEAL PRES ENTED WITHIN THE TIME SPECIFIED IN SUB-SECTION (3) (5) THE APPELLATE TRIBUNAL MAY ADMIT AN APPEAL OR P ERMIT THE FILING OF A MEMORANDUM OF CROSS-OBJECTIONS AFTER THE EXPIRY OF THE RELEVANT PERIOD REFERRED TO IN SUB-SECTION (3) OR SUB-SECTION (4), IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN T HAT PERIOD. [(6) AN APPEAL TO THE APPELLATE TRIBUNAL SHALL BE I N THE PRESCRIBED FORM, AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER AND SHALL, IN THE CASE OF AN APPEAL MADE, ON OR AFTER THE 1 ST DAY OF OCTOBER, 1998, IRRESPECTIVE OF THE DATE OF INITIATION OF THE ASSESSMENT PROCEEDINGS RE LATING THERETO, BE ACCOMPANIED BY A FEE OF, - (A) WHERE THE TOTAL INCOME OF THE ASSESSEE AS COMPU TED BY THE ASSESSING OFFICER, IN THE CASE TO WHICH THE APPEAL RELATES, IS ONE HUNDRED THOUSAND RUPEES OR LESS, FIVE HUNDRED RUPEE S, (B) WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTE D AS AFORESAID, IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN O NE HUNDRED THOUSAND RUPEES BUT NOT MORE THAN TWO HUNDRED THOUS AND RUPEES, ONE THOUSAND FIVE HUNDRED RUPEES, (C) WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTE D AS AFORESAID, IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN T WO HUNDRED THOUSAND RUPEES, ONE PER CENT OF THE ASSESSED INCOM E, SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES, (D) WHERE THE SUBJECT MATTER OF AN APPEAL RELATES T O ANY MATTER, OTHER THAN THOSE SPECIFIED IN CLAUSES (A), (B) AND (C) FI VE HUNDRED RUPEES:] PROVIDED THAT NO SUCH FEE SHALL BE PAYABLE IN THE CASE OF AN APPEAL REFERRED TO IN SUB-SECTION (2) OR A MEMORANDUM OF C ROSS-OBJECTIONS REFERRED TO IN SUB-SECTION (4). (7) AN APPLICATION FOR STAY OF DEMAND SHALL BE ACCO MPANIED BY A FEE OF FIVE HUNDRED RUPEES.] ORDERS OF APPELLATE TRIBUNAL. ITA NO.632-633/AHD/2012 A.YS. 01-02 & 00-01 CHATURBHAI B PATEL & MANIBHAI M PATEL V. CIT-II BRD PAGE 5 IT IS AMPLE CLEAR FROM A BARE READING OF THE ABOVE PROVISIONS THAT NO APPEAL IS PRESCRIBED UNDER THE ACT AGAINST THE ORDER PASSED U /S 119(2)(B) OF THE ACT BEFORE THIS TRIBUNAL HENCE TRIBUNAL HAS NO POWER TO ADJUDICATE UPON THE ORDER PASSED U/S 119(2)(B) OF THE ACT.. WE DO NOT FIND AN Y MERIT IN THE CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE THAT THE APPL ICATION MADE U/S 154(2)(B) FOR RECTIFICATION OF THE ORDER PASSED U/S 119(2)(B) OF THE ACT HAS BEEN REJECTED THEREFORE, THIS WOULD BE APPEALABLE BEFORE THIS TRIBUNAL. ADMITTEDLY, THE ORDER U/S 119(2)(B) OF THE ACT AS WELL AS THE R EJECTION OF APPLICATION HIS APPLICATION UNDER SECTION 154(2)(B) OF THE ACT ARE NOT PASSED BY THE LEARNED CIT(A) UNDER SECTION 250 OF THE ACT. IN VIEW OF THI S MATTER, BOTH THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED AS NOT MAINTAIN ABLE THE ASSESSEE IS AT LIBERTY TO EXERCISE ANY OTHER REMEDY AS AVAILABLE U NDER LAW. 6. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE DI SMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 11/05/2012 !'# $ % & & & & '(()*+ '(()*+ '(()*+ '(()*+ !,* !,* !,* !,* / COPY OF ORDER FORWARDED TO:- 1. !+.) /0 / APPELLANT 2. '12/0 / RESPONDENT 3. $(4 2 25 / CONCERNED CIT 4. 2 25- !+.) / CIT (A) 5. *7 8.2 '(((4, 2 !+.).2 !(4, !'# $ / DR, ITAT, AHMEDABAD 6. 8 ;< = >) / GUARD FILE. BY ORDER/ & , /TRUE COPY/ ?+/' 2 + . 2 !+.).2 !(4, !'# $ %