G. G. Super Cement Pvt. Ltd., Asansol V. ACIT, CIR-2, ASANSOL, Asansol

ITA 696/KOL/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4976 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: U DASGUPTA

Judgement Text

I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 696/KOL/ 2015 ASSESSMENT YEAR: 2008-2009 G.G. SUPER CEMENT PVT. LIMITED,.................... .....................APPELLANT 317, APCAR GARDEN, ASANSOL-713 304 DIST. BURDWAN [PAN: AACCG 2311 H] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ............RESPONDENT CIRCLE-2, ASANSOL, PARMAR BUILDING, G,T. ROAD, ASANSOL-713 304 APPEARANCES BY: SHRI U. DASGUPTA, ADVOCATE, FOR THE ASSESSEE MD. GHAYAS UDDIN, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 02, 2016 DATE OF PRONOUNCING THE ORDER : MARCH 02, 2016 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL DATED 03.06.2013 FOR THE ASSESSMENT YEAR 2008-09, WHEREBY HE DISMISSED THE A PPEAL OF THE ASSESSEE BY TREATING THE SAME AS BARRED BY LIMITATI ON AFTER DECLINING TO CONDONE THE DELAY OF 533 DAYS ON THE PART OF THE AS SESSEE IN FILING THE SAME. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 668 DAYS ON THE PART OF THE ASSESSEE IN FILING THE PRESENT APPEAL B EFORE THE TRIBUNAL. IN ORDER TO DISPOSE OF THIS APPEAL, IT IS, THEREFORE, NECESSARY TO CONSIDER AND DECIDE CONDONATION OF TWO DELAYS ON THE PART OF THE ASSESSEE, FIRST IN I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 6 FILING THE APPEAL BEFORE THE LD. CIT(APPEALS) AND T HE SECOND IN FILING THE APPEAL BEFORE THE TRIBUNAL. 3. IN SO FAR AS THE DELAY OF 668 DAYS ON THE PART O F THE ASSESSEE IN FILING THE APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE HAS FILED AN AFFIDAVIT GIVING THEREIN THE REASONS FOR THE SAID DELAY AS UN DER:- 2) THAT THERE-HAS BEEN A CHANGE IN THE MANAGEMENT OF THE COMPANY DURING THE FINANCIAL YEAR 2008-09, AND ALL THE THREE PREVIOUS DIRECTORS NAMELY G.P.GUPTA, K.GORAI AND KA LYAN SARKAR, RETIRED, AND IN THEIR PLACE, I MYSELF, AND THREE OT HERS WERE APPOINTED AS DIRECTORS OF THE COMPANY. 3) THAT AN APPEAL WAS FILED BEFORE THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) BEING THE FIRST APPELLATE AUTHORITY A T ASANSOL, BEING APPEAL NO. 392/CIT(A)/ASL/ACIT-CIR-2/ASL/2011-12, W HICH WAS DISPOSED OFF VIDE HIS ORDER DATED 03/06/2013 , WITH OUT ADJUDICATION ON MERITS ON THE GROUNDS OF APPEAL, BECAUSE THE APP EAL WAS NOT ADMITTED BEING FILED BEYOND TIME. 4) THAT SECOND APPEAL AGAINST THE SAID CIT(A) ORDER LIES BEFORE THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA, AND THE SAM E IS TO BE FILED WITHIN SIXTY DAYS FROM THE DATE OF RECEIPT OF THE C IT(A) ORDER. 5) THAT THE CIT(A) ORDER WAS RECEIVED ON 07/0612013 , AND THE SECOND APPEAL IN FORM 36 ALONG WITH GROUNDS OF APPE AL, WAS FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA V IDE REGISTERED POST IN THE MONTH OF AUGUST, 2013 , (WITHIN SIXTY D AYS OF RECEIPT OF THE CIT(A) ORDER), BUT UNKNOWINGLY, THE APPEAL MEMO RANDUM WAS DISPATCHED BY ME WITHOUT PAYMENT OF TRIBUNAL FEES. 6) THAT DUE TO IGNORANCE I DEPOSITED RS.1,000/- ONL Y, AS TRIBUNAL FEES ON 8/05/2015 AND SENT THE EVIDENCE OF PAYMENT TO THE OFFICE OF THE ITAT, KOLKATA, BY SPEED POST ON 13/05/2015. 7) THAT SUBSEQUENTLY, I WAS INFORMED, THAT THE TRIB UNAL FEES PAYABLE U/S 253(6)(C) OF THE ACT'61, FOR THIS APPEAL WAS 1% OF THE ASSESSED INCOME I.E. RS. 3,634/-, AND IMMEDIATELY I PAID THE BALANCE AMOUNT OF RS.2,634/- VIDE CHALLAN NO. 2 ON 5/06/2015 AND S ENT THE EVIDENCE OF PAYMENT BY SPEED POST TO THE OFFICE OF THE ITA T , KOLKATA ON 17/06/2015. 8) THAT I AM A BUSINESSMAN WITH VERY LIMITED KNOWLE DGE ON TAX MATTERS AND NOT COMPETENT ENOUGH TO HANDLE INCOME T AX APPEAL CASES AND MY IGNORANCE HAS RESULTED IN NON PAYMENT OF THE TRIBUNAL FEES WITHIN STIPULATED TIME, THEREBY, TECHNICALLY R ESULTING IN DELAY FILING OF APPEAL MEMORANDUM, BY TWENTY TWO MONTHS, I.E. FROM AUGUST 2013 (DUE DATE) TO JUNE, 2015 (BEING THE DAT E OF PAYMENT OF TRIBUNAL FEES AND REMOVING OF DEFECT) . I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 6 9) THAT THE ABOVE DELAY IN PAYMENT OF TRIBUNAL FEES WAS UNINTENTIONAL AND THERE WAS NO MALAFIDE INTENTION O N MY PART AND I HAVE NOT GAINED ANYTHING BY NOT PAYING THE APPEAL F EES WITHIN THE STIPULATED TIME. 4. IN SO FAR AS THE DELAY OF 533 DAYS IN FILING ITS APPEAL BEFORE THE LD. CIT(APPEALS), THE SAME WAS SOUGHT TO BE CONDONED BY THE ASSESSEE BY ADVANCING THE FOLLOWING REASONS BEFORE THE LD. CIT( APPEALS):- (I) CHANGE IN MANAGEMENT IN F.Y. 2008-09; (II) THE CHARTERED ACCOUNTANT SHRI K.K. SHASTRI, AC CORDING TO BELIEVE OF THE COMPANY, FILED APPEAL AGAINST THE ASSESSMENT ORDER; (III) THAT WHEN RECOVERY MEASURES WERE INITIATED, T HE ASSESSEE CAME TO KNOW THAT APPEAL WAS NOT FILED. 5. ALTHOUGH THE REASONS ADVANCED BY THE ASSESSEE BE FORE HIM FOR THE DELAY IN FILING THE APPEAL WERE NOT FOUND TO BE SUF FICIENT BY THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER AND THE LD. D. R. HAS STRONGLY OBJECTED FOR CONDONATION OF THE DELAY ON THE PART O F THE ASSESSEE IN FILING THE APPEAL BEFORE THE LD. CIT(APPEALS) AS WELL AS B EFORE THE TRIBUNAL BY CONTENDING THAT OVERALL CONDUCT AND APPROACH OF THE ASSESSEE CLEARLY SHOW NEGLIGENCE AND LATCHES ON HIS PART, IT IS OBSE RVED THAT THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISI TION VS.- MST. KATIJI & OTHERS REPORTED IN 1987 AIR 1353 AND THE HONBLE CA LCUTTA HIGH COURT IN THE CASE OF INDIAN OIL CORPORATION LIMITED VS.- CE GAT & OTHERS 2002 (104) ECR 609 HAVE LAID DOWN THE FOLLOWING GUIDELIN ES FOR EVALUATING THE APPLICATIONS FOR CONDONATION OF SUCH DELAY:- GUIDELINES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS.- KAT IJI & OTHERS : THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISP OSING OF MATTERS ON 'MERITS'. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYE D BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE -THAT BE ING THE LIFE-PURPOSE FOR I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 6 THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS C OMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROAC H IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO H AVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A L IBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT:- 'ANY APPEAL OR ANY APPLICATION, OTHER THAN AN APPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XX I OF THE CODE OF CIVIL PROCEDURE, 1908, MAY BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE APPELLA NT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR MAKING THE APPLICATION WITHIN SUCH PERIOD. 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THA T CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING TH E PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. GUIDELINES LAID DOWN BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF INDIAN OIL CORPORATION LIMITED VS.- CEGAT & OTHERS :- 11. RULES OF LIMITATION ARE NOT MEANT TO DESTROY T HE RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. THE LAW OF LIMITATION FIXES A LIFE SPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND WAST ED TIME WOULD NEVER REVISIT. DURING THE EFFLUX OF TIME, NEWER CAUSES WO ULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 5 OF 6 COURTS. SO A LIFESPAN MUST BE FIXED FOR EACH REMEDY . UNENDING PERIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCERTAIN TY AND CONSEQUENTIAL ANARCHY. THE LAW OF LIMITATION IS THU S FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM 'INTEREST REIP UBLICAE UP SIT FINISLITIUM' (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO D ESTROY THE RIGHTS OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. 12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOU LD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUS E' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTIT UTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JAIN V. KU NTAL KUMARI AND STATE OF W.B. V. ADMINISTRATOR, HOWRAH MUNICIPALITY. 13. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DEL AY, THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT A LONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM . IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE D ELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME, THEN THE CO URT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDON ING THE DELAY, THE COURT SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETH ER. IT MUST BE BORNE IN MIND THAT HE IS A LOSER AND HE TOO WOULD HAVE IN CURRED QUITE LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELI NE THAT WHEN COURTS CONDONE THE DELAY DUE TO LATCHES ON THE PART OF THE APPLICANT, THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS LOSS . 6. IF THE ABOVE GUIDELINES ARE APPLIED TO THE FACTS OF THE PRESENT CASE, I FIND THAT THE ASSESSEE HAS NOT GOT ANY BENEFIT BY F ILING ITS APPEAL LATE BEFORE THE LD. CIT(APPEALS) AS WELL AS BEFORE THE T RIBUNAL. THERE IS ALSO NOTHING TO SHOW THAT SUCH DELAY IS OCCASIONED DELIB ERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALAFIDE. T HERE IS ALSO NOTHING TO SHOW THAT THE ASSESSEE HAS RESORTED TO DILATORY TAC TICS. KEEPING IN VIEW ALL THESE FACTS OF THE CASE AND THE GUIDELINES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISI TION VS.- MST. KATIJI & OTHERS AND BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INDIAN OIL CORPORATION LIMITED VS.- CEGAT & OTHERS (SUPRA ), I AM OF THE VIEW THAT THE DELAY ON THE PART OF THE ASSESSEE IN FILIN G HIS APPEAL BEFORE THE LD. CIT(APPEALS) AS WELL AS BEFORE THE TRIBUNAL IS REQUIRED TO BE CONDONED IN THE INTEREST OF SUBSTANTIAL JUSTICE AS THE SAME WAS RESULTED DUE TO I.T.A. NO. 696/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 6 OF 6 SUFFICIENT CAUSE. HOWEVER, KEEPING IN VIEW THE NEGL IGENCE AND LATCHES ON THE PART OF THE ASSESSEE AS POINTED OUT BY THE LD. D.R., I AM OF THE VIEW THAT THE ASSESSEE SHOULD BE MADE TO PAY SOME COST I N ORDER OF COMPENSATE THE REVENUE. ACCORDINGLY I IMPOSE SUCH COST OF RS.1 0,000/- ON THE ASSESSEE AND SUBJECT TO THE SAID PAYMENT, REMIT THE MATTER BACK TO THE LD. CIT(APPEALS) WITH A DIRECTION TO DISPOSE OF THE APP EAL OF THE ASSESSEE ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED NOT TO SEEK ANY FURTHER A DJOURNMENT AND EXTEND FULL COOPERATION TO THE LD. CIT(APPEALS) IN ORDER T O ENABLE THE LD. CIT(APPEALS) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY . 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 02, 201 6. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 2 ND DAY OF MARCH, 2016 COPIES TO : (1) G.G. SUPER CEMENT PVT. LIMITED, 317, APCAR GARDEN, ASANSOL-713 304 DIST. BURDWAN (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, ASANSOL, PARMAR BUILDING, G,T. ROAD, ASANSOL-713 304 (3) COMMISSIONER OF INCOME-TAX (APPEALS), ASANSOL (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.