Meghraj Burad, CHENNAI V. ITO, CHENNAI

ITA 773/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4270 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 29-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SREENIVASAN JICIT D R
• Assessee Lawyers: K RAVI
• Keywords: Principle of natural justice; Condonation of delay
• Section: 143(3)

Judgement Text

, B/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL B/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.773 /MDS./2017 ( ASSESSMENT YEARS : 2010-11) SRI MEGHRAJ BURAD , 54,SEMBUDOSS STREET,MANNADY, CHENNAI 600 001. VS. THE INCOME TAX OFFICER, NON CORPORATE WARD -11(2), CHENNAI -6. PAN AIDPM 9443 J ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MR.K.RAVI ADVOCATE / RESPONDENT BY : MR.V.SREENIVASAN, JICIT, D.R ! ' / DATE OF HEARING : 21.06.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 22.06.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE , AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-13, CHENN AI DATED 29.03.2016 PERTAINING TO ASSESSMENT YEAR 2010-11. ITA NO.773 /MDS/2017 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR ADJUDICATION. 1. THE ORDER OF THE ASSESSING OFFICER IS CONTRARY T O THE LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND IN ANY CASE VIOLATIVE OF THE PRINCIPLES OF EQUITY AND NATURAL JUSTICE. 2. THE ASSESSING OFFICER ERRED IN FRAMING THE ASSES SMENT UNDER U/S. 143(3) IN WHICH HE HAD IGNORED THE FACT THAT THE BOOKS OF ACCOUNTS ARE AUDITED UNDER SECTION 44AB OF THE INCOME TAX ACT, BUT HE HA D ARBITRARILY ADOPTED THE DIFFERENCE IN GROSS PROFIT PERCENTAGES AS TAXABLE INCOME, WITHOUT EVEN REJECTING THE BOOKS OF ACCOUNTS. 3. THE ASSESSING OFFICER ERRED IN ADOPTING THE DIFF ERENCE IN GROSS PROFIT PERCENTAGES AS TAXABLE INCOME WITHOUT CONSIDERING T HE CHANGED CIRCUMSTANCES IN THE BUSINESS ENVIRONMENT. 4. THE ASSESSING OFFICER ALSO ERRED IN NOT STATING ANY SPECIFIC REASON FOR ADOPTING A DEEMED DIFFERENCE IN THE GROSS PROFIT PE RCENTAGE, GIVEN THE FACT THAT THE BUSINESS OF THE APPELLANT IS MERELY S TEEL TRADING AND THE MARGINS CANNOT BE FLUCTUATING YEAR OVER YEAR. 3. AT THE OUTSET, IT WAS NOTICED THAT THERE WAS A DELAY OF 342 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. THE ASSESSEE FILED AN AFFIDAVIT FOR CONDONATION OF DELAY STATING THAT TH E APPEAL OF ASSESSEE TO BE FILED ON OR BEFORE 20.06.2016, BUT ACTUALLY F ILED ON 29.03.2017. IT WAS SUBMITTED IN THE CONDONATION PETITION THAT DUE TO VARIOUS FAMILY ITA NO.773 /MDS/2017 3 AND BUSINESS REASONS, HE HAD TOTALLY SHIFTED HIS LI VING TO MUMBAI AND BECAUSE OF WHICH HE WAS TOTALLY UNAWARE OF THE FACT . FURTHER, THE ASSESSEE SUBMITTED THAT THE PETITIONERS COUNSEL WHO HAD FILED THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) - 13, CHENNAI WAS G.SUNIL KUMAR & CO CHARTERED ACCOUNTANT S. SUBSEQUENTLY, THE ASSESSEE DUE TO VARIOUS FAMILY A ND BUSINESS REASONS HAD TOTALLY SHIFTED HIS LIVING TO MUMBAI BE CAUSE OF WHICH HE WAS TOTALLY UNAWARE OF THE FACT THAT THE APPEAL CAM E UP FOR HEARING. ONLY AFTER THE EX-PARTE DISPOSAL OF THE APPEAL BY T HE COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE HAD APPROACHED AND SOUGHT PROFESSIONAL GUIDANCE AND HELP TO DRAFT THE APPEAL AND REPRESENT BEFORE THIS HONOURABLE TRIBUNAL AFTER HAVING BEEN A CQUAINTED OF THIS FACT THAT THE APPEAL HAS BEEN DISMISSED SINCE THERE IS NO RESPONSE. THIS PROCESS HAD CONSEQUENTLY RESULTED IN A DELAY O F 342 DAYS IN FILING THE APPEAL. IT WAS UNDER THESE CIRCUMSTANCES THAT THERE IS A DELAY OF 342 DAYS IN FILING THE APPEAL BEFORE THIS HONOURABLE TRIBUNAL. ACCORDING TO HIM, DUE TO THIS REASON, THE ASSESSEE FAILED TO FILE THE APPEAL IN TIME BEFORE US I.E. 20.06.2016 AND CAUSE D DELAY OF 342 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL FOR WHICH AN APPLICATION ITA NO.773 /MDS/2017 4 U/S.5 OF THE LIMITATION ACT IS BEING FILED ALONG WI TH THIS AFFIDAVIT. FURTHER, IT WAS SUBMITTED THAT THE SAID DELAY IS NE ITHER WILLFUL NOR WANTON BUT DUE TO THE BONAFIDE REASONS STATED ABOVE . 4 . ON THE OTHER HAND, LD.D.R SUBMITTED THAT THERE I S NO VALID REASON FOR CONDONATION OF DELAY AS THE REASONS ADVA NCED BY THE ASSESSEE IN ITS CONDONATION PETITION ARE VERY VAGUE AND IT WAS TOO GENERAL. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, I AM OF THE OPINION THAT THE IMPUGNED ORD ER OF LD.CIT(A) WAS SAID TO BE SERVED ON 21.04.2016 AND IT WAS ALSO NOT ICED THAT THE ASSESSEE HAS GIVEN ADDRESS FOR SERVICING OF ORDER OF LD.CIT(A) AT NO.54, SEMBUDOS STREET, MANNADY, CHENNAI-1 AND THER E WAS NO ALLEGATION THAT THE SAID ORDER WAS NOT SERVED TO T HE ASSESSEE. THE ONLY CONTENTION OF THE ASSESSEE IS THAT THE ASSESS EE HAS MOVED FROM CHENNAI TO MUMBAI. HOWEVER, THE ASSESSEE HAS NOT BR OUGHT ON RECORD ANY EVIDENCE TO SHOW THE ASSESSEE IS PERMANE NTLY SETTLED IN MUMBAI BY WAY OF PRODUCING ANY EVIDENCE LIKE VOTERS CARD, ADHAR ITA NO.773 /MDS/2017 5 CARD, RATION CARD, BANK ACCOUNT, DRIVING LICENSE, P ASSPORT OR CHILDREN SCHOOL CERTIFICATE ETC. BEING SO, THE ASS ESSEES COUNSEL MADE A BALD STATEMENT THAT THE ASSESSEE SHIFTED HIS RESIDENCE TO MUMBAI, WHICH IS NOT BORN OUT OF ANY RECORD. FURT HER, THE ASSESSEES COUNSEL SUBMITTED THAT A COPY OF NOTICE U/S.274 OF THE ACT ISSUED TO THE ASSESSEE AT MUMBAI ADDRESS ON 19.12.2 016 TO SHOW THAT THE ASSESSEE IS PERMANENTLY RESIDING IN MUMBAI , EVEN PRESUMING THAT THE ASSESSEE IS PERMANENTLY RESIDING AT MUMBAI, IT WOULD NOT TAKE 342 DAYS TO FILE THE APPEAL BEFORE T HIS TRIBUNAL. 5.1 IN THIS CASE, THE DELAY OF 342 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL IS VERY INORDINATE DELAY, IT CANNOT B E CONDONED ON SIMPLE REASON THAT THE CASE CALLS FOR SYMPATHY OR M ERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTI NG THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND T HE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT G UILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEM PLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYO ND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE HONBLE SUPREME ITA NO.773 /MDS/2017 6 COURT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD . IN AIR 1961 (SC) 361 HAS HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND ATTENTION, COULD HAVE BEEN AVOIDED, CA NNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATI ON PROVISION. WHERE NO NEGLIGENCE OR INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. 5.2 IN THE PRESENT CASE, THE ASSESSEE JUSTIFIED TH E DELAY ONLY WITH REFERENCE TO THE AFFIDAVIT BY THE ASSESSEE STATING THAT THE ASSESSEE SHIFTED HIS RESIDENCE FROM CHENNAI TO MUMBAI WITHOU T PLACING ANY EVIDENCE OF HIS DOMICILE. THIS REASON ADVANCED BY THE ASSESSEE CANNOT BE CONSIDERED AS GOOD AND SUFFICIENT REASON TO CONDONE THE DELAY. THE REASONS ADVANCED BY THE ASSESSEE REALLY SHOWS THAT THE DELAY WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY EXERCISING OF DUE CARE AND ATTENTION. IN MY OPINION , THERE EXISTS NO SUFFICIENT AND GOOD REASON FOR DELAY OF FILING THE APPEAL BY 342 DAYS. THEREFORE, I AM OF THE OPINION THAT THIS KIND OF DE LAY DOES NOT WARRANT ITA NO.773 /MDS/2017 7 CONDONATION, SINCE THE ASSESSEE HAS NOT SHOWN VALID REASONS CAUSE FOR FILING THE APPEAL BELATEDLY BY SUCH INORDINATE DELAY OF 342 DAYS. ACCORDINGLY, THIS APPEAL OF ASSESSEE STANDS DISMISS ED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 22 ND JUNE, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF