M/s Sutlej Contractors Pvt. Ltd., Ludhiana V. Assessing Officer of Income Tax, Ludhiana

ITA 708/CHANDI/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8339 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Depreciation; Period of limitation; Question of law; Condonation of delay
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 708/CHD/2014 ASSESSMENT YEAR: 2008-09 M/S SUTLUJ CONTRACTORS PVT. LTD., VS. ASSESSING OFF ICER OF INCOME TAX 146/100 J BLOCK WARD VI(3) BHAI RANDHIR SINGH NAGAR, LUDHIANA LUDHIANA PAN NO. AAJCS6417R (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 10/03/2016 DATE OF PRONOUNCEMENT : 15/03/2016 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LD. CIT(A)-II, LUDHIANA, DT. 30/04/2013 FOR ASSESSMENT YEAR 2008-09 UNDER SECTION 154 OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE LD. CIT(A) PASSED THE MAIN ORDER ON APPEAL FILED BY THE ASSESSEE VIDE ORDER DT. 05/10/2 012, IN WHICH INCOME OF THE ASSESSEE WAS ESTIMATED @ 5% OF THE TOTAL TURNOVER A FTER ALLOWING THE DEPRECIATION AS CLAIMED BY THE ASSESSEE. THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AT RS. 6,89,589/-. THE ASSESSING OFFICER M ADE AN APPLICATION UNDER SECTION 154 BEFORE LD. CIT(A) POINTING OUT ERROR IN THE ORDER DT. 05/10/2012 , POINT OUT THAT DEPRECIATION NEED NOT TO BE ALLOWED TO THE ASSESSEE AND RELIED UPON DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT . 3. THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE APPLICATION UNDER SECTION 154 FILED BY THE AO PASSE D THE IMPUGNED ORDER DT. 30/04/2013, FOLLOWING THE DECISION OF JURISDICTIONA L HIGH COURT HELD THAT AO WAS FULLY JUSTIFIED IN NOT CONSIDERING THE CLAIM OF DEP RECIATION WHILE ESTIMATING THE NET PROFIT @ 8%. THE RELIEF EARLIER GRANTED WAS ACC ORDINGLY WITHDRAWN. 2 4. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER PASSED BY THE LD. CIT(A) UNDER SECTION 154 OF THE ACT, DT. 30/04/2013. 5. THIS APPEAL BY THE ASSESSEE HAS BEEN FILED IN TH E OFFICE OF THE TRIBUNAL ON 08/08/2014, AND AS SUCH IT WAS TIME BARRED. THE LET TER OF THE LD. CIT(A)-II, LUDHIANA DT. 22/04/2014, IS AVAILABLE ON RECORD IN WHICH IT IS INTIMATED THAT THE IMPUGNED ORDER WAS SENT TO THE ASSESSEE ON 02/05/20 13 BY SPEED POST AND CERTIFIED COPY OF THE APPEAL HAS BEEN SERVED ON TH E COUNSEL OF THE ASSESSEE. IT WOULD THEREFORE SHOW THAT APPEAL OF THE ASSESSEE WA S TIME BARRED. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY OF 48 DAYS ONLY. IT IS STATED IN THE APPLICATION THAT THE ORDER OF THE LD. CIT(A) WA S NOT MADE KNOWN TO THE ASSESSEE WELL IN TIME AND WITHOUT WHICH THE APPEAL WOULD NOT HAVE BEEN ENTERTAINED AND THE ASSESSEE ON 22/04/2014 WENT TO COLLECT THE COPY OF THE ORDER AND THE COPY OF THE ORDER WAS GIVEN TO THE AS SESSEE AND WHILE OBTAINING THE COPY THE DELAY HAS OCCURRED. IT IS ALSO EXPLAIN ED THAT ASSESSEE HAD NO INTENTION OF DELAYING IN FILING OF THE APPEAL. THIS APPLICATION IS SUPPORTED BY AFFIDAVIT OF SH. HARPREET SINGH BRAR, DIRECTOR OF T HE ASSESSEE COMPANY. 5.1 THE RECORDS REVEALED THIS APPEAL WAS ADJOURNED MANY TIMES ON THE REQUEST OF COUNSEL FOR THE ASSESSEE AND THEREAFTER DESPITE NOTIFYING THE DATE OF HEARING NONE APPEARED BEFORE THE TRIBUNAL. THE NOTI CE WAS FURTHER SENT FOR THE DATE OF HEARING FIXED ON 10/03/2016 BY REGISTERED P OST. THE REGISTERED COVER CONTAINING NOTICE FOR 10/03/2016 HAS BEEN RETURNED BY THE POSTAL AUTHORITY WITH THE REMARK REFUSED. IT IS THEREFORE PROVED THAT D ESPITE NOTIFYING THE DATE OF HEARING, ASSESSEE WAS NOT PROSECUTING THE APPEAL ON EARLIER DATED AND WAS SEEKING ADJOURNMENTS ONLY AND FOR THE DATE FIXED ON 10/03/2016, ASSESSEE REFUSED TO ACCEPT NOTICE THROUGH REGISTERED POST. T HE REFUSAL WOULD AMOUNT TO SERVICE UPON ASSESSEE. THEREFORE IN THE ABSENCE OF ASSESSEE, THE APPEAL IS DECIDED ON MERITS. 6. LD. DR CONTENDED THAT APPEAL OF THE ASSESSEE IS TIME BARRED AND NO SUFFICIENT CAUSE HAVE BEEN EXPLAINED FOR FILING THE APPEAL BEYOND THE PERIOD OF LIMITATION. 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L ON RECORD. 8. THE ASSESSEE IN THE PRESENT APPEAL IS CHALLENGIN G THE ORDER OF LD. CIT(A) DT. 30/04/2013, PASSED UNDER SECTION 154 OF THE ACT , HOWEVER THE APPEAL IS FILED 3 IN THE OFFICE OF THE TRIBUNAL ON 08/08/2014. THE LE TTER OF THE CIT(A) DT. 22/04/2014 ADDRESSED TO ASSESSEE IS AVAILABLE ON RECORD IN WHI CH IT WAS INTIMATED TO THE ASSESSEE THAT THE IMPUGNED ORDER WAS SENT TO THE AS SESSEE ON 02/05/2013 BY SPEED POST AND CERTIFIED COPY WAS ALSO SUPPLIED TO THE COUNSEL FOR THE ASSESSEE. THE ABOVE AVERMENTS CONTAINED IN THE LETTER DT. 22/ 04/2014 HAVE NOT BEEN DENIED OR REBUTTED BY THE ASSESSEE THROUGH ANY EVID ENCE OR MATERIAL ON RECORD. IT THEREFORE STANDS PROVED THAT THE LD. CIT (A) IMMEDIATELY AFTER PASSING THE IMPUGNED ORDER DT. 30/04/2013, FORWARDED A COPY OF THE IMPUGNED ORDER TO ASSESSEE ON 02/05/2013 BY SPEED POST THEREFORE THE IMPUGNED ORDER IS SERVED UPON THE ASSESSEE IN ORDINARY COURSE OF BUSINESS WI THIN THE REASONABLE PERIOD, HOWEVER, ASSESSEE FILED THE APPEAL IN THE OFFICE OF THE TRIBUNAL ON 08/08/2014. THE OFFICE HAS CALCULATED THE DELAY IN FILING THE A PPEAL AS 454 DAYS WHICH HAVE NOT BEEN EXPLAINED AT ALL BY THE ASSESSEE IN APPLIC ATION FILED FOR CONDONATION OF DELAY. THE ASSESSEE MERELY EXPLAINED IN THE APPLICA TION FOR CONDONATION OF DELAY THAT IMPUGNED ORDER WAS NOT MADE KNOWN TO THE ASSESSEE WELL IN TIME. IT IS A GENERAL STATEMENT AND NO SPECIFIC DENIAL HAVE BEEN MADE THAT ASSESSEE DID NOT RECEIVED THE IMPUGNED ORDER WHICH WAS SENT BY THE CIT(A) BY SPEED POST ON 02/05/2013. THUS ASSESSEE HAS NOT DISCLOSE ANY SUFFICIENT CAUSE FOR DEALY IN SUBMISSION OF THE APPEAL IN THE OFFICE OF THE TR IBUNAL. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. RAM MOHAN KABRA (2002) 257 ITR 773 HELD AS UNDER: WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMIT ATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN BE CONDON ED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENC E. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SPECIFIED PE RIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. AUTHO RITIES EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, I NEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWE RS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, THAT PER SE, WOULD NOT MAKE SUCH CONTROVERSY QUESTION OF L AW. SO LONG AS SUCH DECISION OF THE AUTHORITY IS IN CONFORMITY WITH THE PRINCIPL E OF LAW AND IS APPARENTLY A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. ONCE THE CONCERNED AUTHORITY APPLIES ITS MIND AND DECLINES TO CONDONE THE DELAY IN FILING THE APPEAL FOR GOOD AND APPROPRIATE REASONS, IT CANNOT GIVE RISE TO A QUESTION OF LAW. HELD, THAT SPECIFIC REASONS HAD BEEN GIVEN BY THE T RIBUNAL FOR REFUSAL TO CONDONE THE DELAY IN FILING THE APPEAL WHICH WERE NOT ONLY LOGICAL BUT REFLECTED THE CONDUCT OF THE DEPARTMENT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD INSPITE OF SEEKING TIME. NO QUESTION OF LAW AROSE F ROM THE ORDER. IN THIS CASE DELAY FOR FILING OF APPEAL LATE FOR ON LY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF HIND DEVELOPMENT CORPORATION VS. ITO & OTHERS (1979) 118 ITR 873, HONBLE CALCUTTA HIGH COURT HELD THAT THE TRIB UNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN SUBM ISSION OF THE APPEAL. HOWEVER IN THE PRESENT CASE THE ASSESSEE FAILED TO EXPLAIN ANY SUFFICIENT CAUSE FOR DELAY 4 IN SUBMISSION OF THE APPEAL. THE EXPLANATION OF THE ASSESSEE IS VERY VAGUE AND GENERAL AND DID NOT EXPLAIN ANY SUFFICIENT CAUSE FO R DELAY IN FILING THE APPEAL. THUS ON RELYING UPON ABOVE JUDGMENTS, WE HOLD THAT ASSESSEE FAILED TO EXPLAIN THE DELAY IN FLING THE APPEAL WAS DUE TO SUFFICIENT CAUSE, THEREFORE APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED BEING TIME B ARRED. THE APPLICATION FOR CONDONATION OF THE DELAY IS ACCORDINGLY DISMISSED A ND WE HOLD THAT APPEAL OF THE ASSESSEE IS TIME BARRED. 9. IN VIEW OF THE ABOVE DISCUSSION, WE DISMISSED TH E APPEAL OF THE ASSESSEE BEING TIME BARRED IN LIMINIE . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15 TH MARCH 2016 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR