ATHASHRI FOUNDATION, MUMBAI V. ASST DIT (E) -II(2), MUMBAI

ITA 6590/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5711 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 10-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVLD
• Assessee Lawyers: HARDIK NIRMAL LD ARS
• Keywords: Depreciation; Principle of natural justice; Condonation of delay
• Section: 143(3); 12A

Judgement Text

ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.6590/MUM/2016 ( ASSESSMENT YEAR:2011-12) A THASHRI FOUNDATION 101, SOMNATH, CTS NO.988 RAM MANDIR ROAD, VILE PARLE (E) MUMBAI-400 057 VS. ASSISTANT DIRECTOR OF INCOME TAX [EXEMPTION]-II(2) PIRAMAL CHAMBER LALBAUG MUMBAI !' # PAN/GIR NO.AAATA-8602-J ( '$ APPELLANT ) : ( %'$ RESPONDENT ) REVENUEBY : RAJESH KUMAR YADAV, LD.DR ASSESSEE BY : YOGESH THAR & HARDIK NIRMAL, LD.ARS &' DATE OF HEARING : 02/07/2018 ()*' / DATE OF PRONOUNCEMENT : 11/07/2018 O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [A Y] 2011-12 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-1 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-I/IT/E-II (189)/2015-16 DATED 12/08/2016 BY RAISING VARIOUS GROUNDS OF APPEAL, WH ICH BROADLY READ AS UNDER:- 2 ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 GROUND NO.I: AS REGARDS CONDONATION OF DELAY IN FILING OF APPEA L BEFORE THE CIT(A) GROUND NO.II : DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS. 68, 911/- GROUND NO III: AS REGARDS NON-ALLOWANCE AND CARRY FORWARD OF DEFI CIT: THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT DIRECTOR OF INCOME TAXII(2), MUMBAI [AO] U/S 143(3) OF THE INC OME TAX ACT,1961 ON 11/03/2014 WHEREIN THE INCOME OF THE ASSESSEE HAS B EEN ASSESSED AT RS.65.24 LACS AS AGAINST DEFICIT OF RS.7,701/- FILE D BY THE ASSESSEE ON 29/09/2011 ALONG WITH INCOME AND EXPENDITURE ACCOUNT, BALANCE SHEET AND AUDIT REPORT IN FORM NO.10B . AS EVIDENT FROM QUANTUM ASSESSMENT ORDER, THE ASSESSEE IS A TRUST DULY REGISTERED U/S 12A OF THE INCOME TAX ACT AS WELL AS AN ENTITY INCORPORATED U/S 25 OF THE COMPAN IES ACT, 1956. 2. THE ASSESSEE, IN THE QUANTUM ASSESSMENT, HAS BEE N DENIED DEPRECIATION AGAINST FIXED ASSETS SINCE THE PURCHAS E THEREOF WAS ALLOWED AS AN APPLICATION OF INCOME. SECONDLY, THE SET-OFF OF DEFICIT OF EARLIER YEARS HAS ALSO BEEN DISALLOWED FOR REASONS STATED IN THE QUANTUM ASSESSMENT ORDER. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 12/08/2 016 WHEREIN THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED ON TECHNI CAL GROUND FOR WANT OF CONDONATION OF DELAY OF APPROX. 18 MONTHS IN FILING THE APPEAL. THE MATTER HAS BEEN CONCLUDED BY THE LD. FIRST APPELLATE AUTHO RITY IN THE FOLLOWING MANNER:- 3 ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 5. THE CONTENTION OF THE APPELLANT HAS CAREFULLY BE EN CONSIDERED. THE APPELLANT HAS FAILED TO EXPLAIN AS TO WHAT EFFORT WAS MADE BY IT DURING THESE 18 MONTHS. IT APPEARS THAT THE APPELLANT FAILED EVEN TO CHECK FROM THE ACKNOWL EDGMENT RECEIVED THAT APPEAL HAS WRONGLY BEEN FILED BY IT IN SOME OTHER OFFICE. THIS SHOWS CARELESSNESS AND NEGLIGENCE ON PART OF THE APPELLANT. FURTHER, THE AUTHORIZED R EPRESENTATIVE OR THE STAFF HAS NOT CONFIRMED THIS STATEMENT OF THE APPELLANT. UNDER TH ESE CIRCUMSTANCES, I AM NOT SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRE SENTING HIS APPEAL WITHIN A PERIOD OF 30 DAYS PERMITTED U/S.249(2). IN THE CASE OF RANKAK & OTHERS VS. REVA COAL FIELDS LTD [AIR 1962 (SC) 361], THE HONBLE APEX COURT HAVE HELD THAT THE PARTY HA S TO SHOW REASON FOR DELAY ON THE LAST DATE OF LIMITATION AND THEREAFTER FOR EACH DAY SINCE CONDONATION IS NOT A MATTER OF RIGHT. IN THE CASE O F ORNET PROPERTIES VS. ITO [312 ITR 193] AND CIT VS. RELIANCE CAPITAL LTD [322 ITR 252] , IT WAS HELD BY HONBLE BOMBAY HIGH COURT THAT INORDINATE DELAY IN FILING APPEAL A RE NOT CONDONED SINCE DORMANT CLAIMS CANNOT BE GIVEN NEW LIFE. THE HONBLE HIGH COURT FU RTHER CLARIFIED THAT THOSE WHO SLEEP OVER THEIR RIGHTS FOR A PROLONGED PERIOD CANNOT CLA IM EQUITY IN JUSTICE. FURTHER IN THE CASE OF AIRLINES ROTABLES LTD. 54 TAXMANN. COM 288 HONBLE BOMBAY HIGH COURT HELD THAT IF THE EXPLANATION IS FOUND TO BE CONCOCTED OR DEMO NSTRATES THOROUGH NEGLIGENCE IN PROSECUTING THE CAUSE, THEN, IT WOULD BE A LEGITIMA TE EXERCISE OF DISCRETION NOT TO CONDONE THE DELAY. ALSO, IN THE CASE OF VENKATESH PAPER & BOARDS VS. DCIT [98 ITD 200], THE HONBLE CHENNAI ITAT HAVE HELD THAT FOR CONDONA TION OF DELAY, APPELLANT HAS TO PROVE THAT THERE HAS BEEN DILIGENCE ON ITS PART AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVER AND FURTHER THE CAUSE FOR DELAY IN FILIN G APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE SUFFICI ENT CAUSE WITHIN THE MEANING OF THESE PROVISIONS. SIMILAR, OBSERVATIONS WERE MADE B Y HONBLE ITAT, CHENNAI BENCH, IN THE CASE OF DCIT VS. JAYA PUBLICATIONS [309 ITR (AT) 245]. ACCORDINGLY, I DO NOT FIND ANY FORCE IN THIS CONTENTION OF THE APPELLANT AND T HE DELAY IN FILING APPEAL IS NOT CONDONED RESULTING INTO NON ADMISSION OF THE APPEAL . AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE [AR], SHRI YOGESH THAR DRAWING OUR ATTENTION TO THE DOCUMENTS PLACED IN T HE PAPER BOOK EXPLAINED THE CIRCUMSTANCES WHICH LED TO LATE FILIN G OF THE APPEAL BEFORE LD. FIRST APPELLATE AUTHORITY. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], SH. RAJESH KUMAR YADAV, SUBMITTED THAT THE ASSESSEE WAS NEGLIGENT IN FILING THE APPEAL BEFORE APPROPRIATE AUTHORITY AND THEREFORE, THE STAND OF LD. CIT(A) WAS REASONABLE U NDER THE CIRCUMSTANCES. 4 ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 5. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLACED IN TH E PAPER BOOK. THE FACT THAT THE APPEAL HAS BEEN FILED WITH A DELAY OF APPR OX. 18 MONTHS IS NOT IN DISPUTE. HOWEVER, FROM THE DOCUMENTS PLACED ON RECO RD, IT IS EVIDENT THAT THE QUANTUM ASSESSMENT ORDER WAS PASSED ON 11/03/20 14 WHICH IS STATED TO BE RECEIVED BY THE ASSESSEE ON 26/03/2014. THE A PPEAL BEFORE LD. CIT(A) HAS BEEN FILED ON 15/10/2015. AS POINTED OUT BY LD. AR WHICH IS ALSO EVIDENT FROM MATERIAL ON RECORD, IT IS NOTED T HAT THE ASSESSEE, BY MISTAKE, FILED THE APPEAL BEFORE LD. AO ITSELF I.E. ADIT (E)-II(2) ON 10/04/2014 ALONG WITH FORM NO. 35 AND OTHER REQUISI TE DOCUMENTS WITH PAYMENT CHALLAN (CIN NO. 02314330904201431956) FOR RS.1,000/- TOWARDS APPEAL FILING FEES. LATER ON, UPON DISCOVERING THE AFORESAID MISTAKE, THE ASSESSEE PREFERRED APPEAL BEFORE THE APPROPRIATE AU THORITY I.E. LD. CIT(A) ON 15/10/2015 ALONG WITH REQUISITE DOCUMENTS AND AF FIDAVIT OF THE DIRECTOR EXPLAINING THE CIRCUMSTANCES WHICH LED TO ERRONEOUS FILING OF APPEAL BEFORE LD. AO. IN THE AFORESAID AFFIDAVIT, THE MISTAKE HAS BEEN ATTRIBUTED TO INADVERTENT ERROR ON THE PART OF THE STAFF IN FILING APPEAL BEFORE WR ONG AUTHORITY AND THE SAID FACT GOT OVERLOOKED BY AUTHO RIZED REPRESENTATIVE OF THE ASSESSEE. UPON DISCOVERING AFORESAID MISTAKE SU BSEQUENTLY, THE APPEAL WAS FILED BEFORE APPROPRIATE AUTHORITY I.E. LD. CIT(A). 6. THE ABOVE FACTS, IN OUR OPINION, PROVE THE BONA FIDES OF THE EXPLANATION FURNISHED BY THE ASSESSEE. THE SAME, IN OUR VIEW, WAS PLAUSIBLE EXPLANATION IN VIEW OF THE FACT THAT APPE AL FILING FEES WAS PAID BY 5 ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 THE ASSESSEE WITHIN TIME AND THE APPEAL WAS ALSO FI LED ALBEIT TO WRONG AUTHORITY. HOWEVER, UNDISPUTEDLY THE SAME WAS WITHI N TIME. THEREFORE, UPON CONSIDERATION OF FACTUAL MATRIX AND KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, THE DELAY DESERVES TO BE CONDONED. WE ORDER SO. THIS GROUND OF APPEAL STAND ALLOWED. 7. SO FAR AS THE MERITS OF THE CASE ARE CONCERNED, LD. AR HAS CONTENDED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED B Y CERTAIN JUDICIAL PRONOUNCEMENTS OF HIGHER COURT. HOWEVER, SINCE LD. CIT(A) HAS NOT DEALT WITH THE SAME, WITHOUT DELVING INTO THE MERITS, THE MATTER STAND REMITTED BACK TO THE FILE OF LD. FIRST APPELLATE AUTHORITY T O CONSIDER THE ASSESSEES SUBMISSIONS ON MERITS. THIS GROUND STAND ALLOWED FO R STATISTICAL PURPOSES. 8. RESULTANTLY, THE ASSESSEES APPEAL STAND PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JULY, 2018 SD/- SD/- (C.N.PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 11.07.2018 SR.PS:-THIRUMALESH 6 ITA NO.6590/MUM/2016 ATHASHRI FOUNDATION ASSESSMENT YEAR-2011-12 ' COPY OF THE ORDER FORWARDED TO : 1. ()*+,- ' THE APPELLANT 2. 123,- ' THE RESPONDENT 3. 73873 9: ; ()*+ < ' THE CIT