LAKSHYA GLOBAL LOGISTICS PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRALIZED PROCESSING CELL - TDS, GHAZIABAD

ITA 6979/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6268 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 08-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: MUGHA DASHORA
• Keywords: Period of limitation; Reasonable cause; Right to appeal; Condonation of delay; TDS
• Section: 234E; 200A; 201

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN, JM & HONBLE SH. G. MANJUNATHA, AM ./ I.T.A. NO . 6979 TO 6984/MUM/2017 (AY - 2015 - 16) ./ I.T.A. NO . 6985 TO 6992/MUM/2017 (AY - 201 4 - 15 ) ./ I.T.A. NO . 6993 TO 6998 /MUM/2017 (AY - 2013 - 14 ) LAKSHYA GLOBAL LOGISTICS PVT. LTD. D 1602 LOTUS CORPORATE PARK, JAYCOACH, NEAR TO METROPOLIS GOREGAON (EAST), MUMBAI - 400 063 / VS. DCIT, CENTRALIZED PROCESSING CELL - TDS, AAYAKAR BHAVAN, GHAZIAB AD, UTTARPRADESH. ./ ./ PAN/GIR NO. AAB CL3283A ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. MUGHA DASHORA, AR / RESPONDENT BY : SHRI SATISH CHANDRA RAJORE, D R / DATE OF HEARING : 22/01 /201 9 / DATE OF PRONOUNCEMENT : 23/01/2019 / O R D E R PER BENCH : THE PRESENT TWENTY (20) APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISS I ONER OF INCOME TAX (APPEALS) - 59 , MUMBAI DATED 06.09.2017 FOR THE RESPECTIVE ASSESSMENT YEARS. 2 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. 2. SINCE ALL THE ISSUES INVOLVED IN THESE TWENTY APPEALS ARE COMMON, THEREFORE, THEY HAVE BEEN CLUBBED , HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 6979/MUM/2017 (AY 20 15 - 16) 3. FIRST OF ALL WE TAKE UP ASSESSEES APPEAL IN ITA NO. 6979/MUM/2017 FOR ASSESSMENT YEAR 2015 - 16 AS LEAD CASE . THE GROUNDS OF APPEAL ARE MENTIONED HEREIN BELOW: - 1. THE LD. CIT (A) GROSSLY ERRED IS NOT CONDONI NG THE DELAY IN FILING OF APPEAL AND DISMISSED THE APPEAL. 2. THE LD. CIT (A) GROSSLY ERRED IS NOT CONSIDERING THAT THERE WAS REASONABLE CAUSE FOR NOT FILING THE APPEAL IN TIME. 3. THE LD. CIT (A) GROSSLY ERRED IS CONFIRMING THE PENAL FEES U/S 234E LEVIED BY THE CPC - TDS DEPARTMENT COMPLETELY FAILED TO CONSIDER THAT LEVY OF PENAL FEES U/S 234E WAS AGAINST THE PROVISION OF ACT IN THE YEAR UNDER APPEAL. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO DELETE FROM OR SUBSTANTIATE THE ABOVE GROUND OF APPEAL. 3 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. GROUND NO. 1 & 2 4. SINCE BOTH THE GROUNDS RAISED BY THE ASSESSEE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGING THE ORDER OF LD CIT(A) IN DISMISSING THE APPEAL BY NOT CONDONING THE DELAY IN FILING APPEAL, THEREFORE WE THOUGHT IT FIT T O DISPOSE OF THE SAME BY THIS COMMON ORDER. 5. WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENTS CITED BY THE PARTIES AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. WE FIND FROM THE REC ORDS THAT THE ASSESSEE HAD FILED ALL TWENTY APPEALS AGAINST THE ORDER S OF LD. CIT(A) THEREBY TAKING THE SOLITARY GROUND THAT LATE FILING OF APPEAL BEFORE LD. CIT(A) WAS BASED ON THE GROUND THAT ASSESSEE WAS GIVEN WRONG ADVICE BY THE TAX CONSULTANTS AND THE REFORE THE ASSESSEE SHOULD NOT BE ALLOWED TO SUFFER BECAUSE OF THE WRONG ADVICE GIVEN BY THE TAX CONSULTANT. 6. ON DEEP SCRUTINY OF THE FACTUAL POSITION AS PUT FORTH BY THE ASSESSEE, WE FIND THAT ASSESSEE HAD TAKEN A CONSCIOUS DECISION AFTER DUE CONSIDERA TION AT THE RELEVANT POINT OF TIME FOR NOT FILING THE APPEALS AGAINST THE IMPUGNED ORDERS. THEREAFTER, AT A LATER STAGE, THE APPEALS WERE FILED AFTER GAP OF MANY MONTHS/YEARS BY FOLLOWING FEW ORDERS PASSED BY THE APPELLATE TRIBUNAL. THUS, IN THIS WAY, ACCO RDING TO US, FILING OF APPEAL BELATELY ON THE SOLITARY CONSIDERATION THAT FAVOURABLE ORDERS WERE 4 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. SUBSEQUENTLY BEEN PASSED, CANNOT BE TERMED AS SUFFICIENT CAUSE , BUT ONLY BE CHARACTERIZE AS OPPORTUNISTIC APPRAOCH. 7. IF IN CASE, WE ALLOW THE ASSESSEE T O FILE THE APPEAL ON THE REASONING AS MENTIONED BY THEM, THEN IN THAT EVENTUALITY, A LARGE NUMBER OF APPEALS WOULD ETERNALLY ESCAPED THE BAR OF LIMITATION PRESCRIBED FOR FILING THE APPEALS, THEREBY, NO ALLOWING EVEN A SINGLE LITIGATION ON A LEGAL ISSUES TO EVER BECOME FINAL. 8. WE CANNOT IGNORE OR OVERLOOK THAT ON EXPIRY OF THE PERIOD OF LIMITATION PRESCRIBED FOR SEEKING THIS LEGAL REMEDY, A CORRESPONDING RIGHT ACCRUES IN FAVOUR OF THE OTHER PARTY. THE RIGHT TO APPEAL CANNOT BE KEPT INTACT AND PRESERVED IN DEFINITELY IN ANTICIPATION OF A DECISION BY A COURT OF LAW, WHICH SUITS THE APPELLANTS. 9. HOWEVER, IF THE ASSESSEES ARGUMENTS WERE MOMENTARILY CONSIDERED FOR THE SAKE OF A THEORETICAL DEBATE, IT IS TO BE STATED THAT THE ISSUE OF THE COMPETENCE OF THE CP C - TDS TO RAISE LATE FILING FEE DEMAND MANDATED BY SECTION 234E THROUGH AN INTIMATION PROCESSED U/S 200A OF THE ACT, IS FAR FROM BEING CHARACTERIZED AS SETTLED . AS ON DATE, THERE IS A CLEAVAGE OF OPINION AMONGST THE HONBLE HIGH COURTS. HENCE IT IS ALSO NOT AS IF THE ISSUE IS NO LONGER RES INTEGRA RECKONED IN THIS LIGHT, THE FORCE IN THE ARGUMENT OF THE ASSESSEE DIMINISHES EVEN FURTHER. 10. WE HAVE ALSO CONSIDERED ALL THE JUDGMENTS CITED BY LD. AR WHICH ARE ATTACHED IN THE LEGAL PAPER BOOK RELATING TO CONDO NATION OF DELAY I.E ASTHE LOGISTICS PVT. LTD. VRS. PCIT (ITA NO. 229/MUM/18), VIJAY VISHIN MEGHANI V. 5 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. DCIT 86 TAXMANN.COM 98 (BOM HC), CONCORD OF INDIA INSURANCE CO. LTD. VRS. SMT NIRMAL DEVI 118 ITR 507 (SC), Y. P. TRIVEDI VRS. JCIT (ITA NO. 5994/MUM/10) AND PERFECT SCALE CO. PVT. LTD VRS. DCIT 37 CCH 434 (MUM - TRIB) , WHEREIN IT WAS HELD THAT ASSESSEE SHOULD NOT SUFFER ON ACCOUNT OF THE WRONG ADVICE OF THE CONSULTANT, HENCE IN THE SUBSTANTIAL INTEREST OF JUSTICE, THE DELAY WAS CONDONE. 11. WE HAVE ALSO CON SIDERED THE JUDGMENT PASSED BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SOMERSET PLACE COOPERATIVE HOUSING SOCIETY LTD. VRS. ITO (2015) 57 TAXMAN. COM 7 (BOM) , WHEREIN IT WAS HELD THAT WHERE ASSESSEE TOOK VOLUNTARY DECISION NOT TO ASSAIL THE ORDER OF TRIBUNAL AND ACCEPTED THE SAME, ONLY BECAUSE ASSESSEE SUCCEDED ON SAME ISSUE 5 YEAR LATER, THE SAME COULD NOT BE A SUFFICIENT CAUSE TO DELAY THE CONDONE OF 5 YEARS IN FILING THE APPEAL. 12. IN OUR CONSIDERED VIEW, SECTION 5 OF THE LIMITATION ACT CANNOT BE STRETCHED TO BRIN G ABOUT A SITUATION OF UNSETTLING JUDICIAL D ECISIONS WHICH STOOD ACCEPTED BY THE PARTIES. IF THE CONTENTION OF THE A SSESSEE IS ACCEPTED, IT WOULD CREATE A SITUATION OF CHAOS AND UNSETTLING VARIOUS ORDERS PASSED FROM TIME TO TIME BY TH E AUTHORITIES /COURTS AS ACCEPTED BY THE PARTIES. THE LEGISLATIVE MANDATE IN STIPULATING A LIMITATION TO FILE AN APPEAL WITHIN THE PRESCRIBED LIMITATION CANNOT BE PERMITTED TO BE DEFEATED WHEN A LITIGANT HAS TAKEN A DECISION NOT TO PURSUE FURTHER PROCEEDIN GS. THE ONLY DEFENCE RAISED BY THE ASSESSEE RELATES TO RENDERING OF WRONG ADVICE BY THE 6 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. TAX CONSULTANT. IF THIS IS PERMITTED, THE INEVITABLE CONSEQUENCE IS UNCERTAINTY AND INCONVENIENCE AS THEN NO ORDER CAN EVER ATTAIN FINALITY THOUGH ACCEPTED BY THE PARTY . 13. WE ARE ALSO CONSCIOUS OF THE FACT THAT WHILE A LIBERAL APPROACH IS TO BE NORMALLY TAKEN IN CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY AS SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED OVER TECHNICAL CONSIDERATIONS, IT IS EQUALLY TRUE THAT A PERSON INVOKING THE DISCRETION OF THE APPELLATE AUTHORITY IN INORDINATELY DELAYED APPEALS IS REQUIRED TO SHOW COMPELLING CAUSE , THE OPERATION OF WHICH WAS BEY OND THE CONTROL OF THE ASSESSEE . IN OTHER WORDS THE CONDONATION OF DELAY CANNOT BE TAKEN AS GRANTED . 14 WE ALSO NOTICED THAT THE DELAY IN THE PRESENT APPEALS ARE NOT OF A MONTH OR TWO, B UT IS FOR A SIGNIFICANTLY LARGE PERIOD AGGRE GA TING 8956 DAYS FOR ALL THE A PPEALS TAKEN TOGETHER, RANGING FROM A MINIMUM OF 589 DAYS TO A MAXIMUM OF 1 168 DAYS, IT IS WELL - SETTLED T HAT A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND WHERE THE DELAY IS OF FEW DAYS ONLY . THESE APPEALS FALL IN THE FORMER CATEGORY. THE QUANTUM OF DELAY DEMONSTRATES AND MAKES IT MANIFESTLY EVIDENT THAT THESE AP PEALS WERE NOT PROSECUTED WITH DUE CARE AND DILIGENCE . 15. IN THE CASE OF RANKAK & OTHERS VRS. REVA COAL LTD. [AIR 1962 (SC) 361], THE HONBLE APEX COURT HAVE HELD THAT CONDONATION IS NOT A MATTER OF RIGHT AND THERE HAS TO BE A REASONABLE CAUSE FOR THE SA ME. SIMILAR OBSERVATIONS WERE 7 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. MADE BY HONBLE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA VRS. ACIT [317 ITR 458] . 16. THUS CONSIDERING OUR ABOVE DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THE REASONS GIVEN FOR DELAY BY THE ASSESSEE ARE NOT PERSUASI VE ENOUGH TO PERMIT ITS CONDONATION. THE ASSESSEE HAD NO 'SUFFICIENT CAUSE' IN TERMS OF SECTION 249(3) OF THE ACT, FOR NOT PRESENTING THE APPE AL WITHIN THE PRESCRIBED PERIOD BEFORE LD. CIT(A). HENCE THE SAME WERE RIGHTLY DISMISSED. THEREFORE, WE SEE NO REA SON S TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD.CIT(A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THESE GROUND S RAISED BY THE ASSESSEE STAN DS DISMISSED . GROUND NO. 3 & 4 17 . SINCE WE HAVE ALREADY DISMISSED THE APPEAL OF THE ASSESSEE ON GROUND NO. 1 & 2 BY HOLDING THAT THE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(A) WAS BARRED BY LIMITATION , THEREFORE THERE IS NO NEED TO ADJUDICATE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS OR ON ANY OTHER ASPECT. 18 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 8 ITA NO. 6979 TO 6998/MUM/2017 LAKSHYA GLOBAL LOGISTICS PVT. LTD. 19 . SINCE WE HAVE ALREADY DISMISSED THE LEAD APPEAL BEARING ITA NO. 6979/MUM/17 , THEREFORE, FOLLOWING OUR OWN DECISION IN ITA NO. 6979/MUM/17 , W E APPLY THE SAME FINDINGS IN OTHER APPEALS IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY WHICH IS APPLICABLE MUTATIS MUTANDIS . 20 . IN THE NET RESULT, ALL THE TWENTY (20) APPEALS AS DETAILED ABOVE FILED BY THE ASSESSEE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JAN 2019 SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 23 . 01 .201 9 SPS/DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI