Shri Radheyshyam Agrawal, Nagpur V. Chief commissioner of Income Tax, Nagpur

ITA 79/NAG/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3135 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 02-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Bonafide belief; Reasonable cause; Block assessment; Condonation of delay

Judgement Text

1 ITA NO. 79/NAG/2012 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. ITA NO. 79 /NAG/201 2 ASSESSMENT YEAR : 1999 - 2000. SHRI RADHEYSHYAM AGRAWAL, CHIEF COMMISSIONER OF INCOME - TAX, NAGPUR. VS. NAGPUR. PAN AASPA7111N APPELLANT. RESPONDENT. APPELLANT BY : SHRI MANOJ MORYANI. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 02 - 02 - 2016 DAT E OF PRONOUNCEMENT : 5 TH FEBRUARY , 2016. O R D E R PER SHRI SHAMIN YAHYA, A.M . T HIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CHIEF COMMISSIONER OF INCOME - TAX, NAGPUR DATED 07 - 01 - 2012 PASSED U/S 119(2)(B) OF THE INCOME - TAX ACT, 1961. THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LA W, THE ORDER OF THE HONBLE CHIEF COMMISSIONER OF INCOME TAX DATED 07 - 01 - 2012 PASSED U/S 119(2)(B) OF THE INCOME TAX ACT, 1961 IS BAD, ILLEGAL AND UNWARRANTED. 2. THAT THE LD. CCIT HAS ERRED IN NOT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 3. THAT THE LD. CCIT HAS ERRED IN NOT CONDONING THE DELAY U/S S 119(2)(B) IN FILING THE RETURN OF INCOME AND THEREBY DENYING THE LEGITIMATE REFUND DUE TO THE ASSESSEE FOR THE ASSESSMENT YEAR 1999 - 2000. HIS ORDER IS ARBITRARY. 4. THAT THE LD. CCIT HAS ERRED IN DENYING THE REFUND TO THE ASSESSEE SINCE THE DELAY IN FILING THE RETURN HAS BEEN CAUSED DUE TO REASONABLE CAUSE I.E. RECEIPT OF TDS/TCS CERTIFICATE LATE AS WELL AS ILLNESS OF BROTHER. 2 ITA NO. 79/NAG/2012 2. IN THIS CASE THE ASSESSEE HAS FILED AN APPLICATION U/S 119(2)(B) F OR CONDONATION OF DELAY IN FILING OF THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 FILED ON 15 - 10 - 2001 CLAIMING A REFUND OF RS.11,08,194/ - . LEARNED CHIEF COMMISSIONER OF INCOME TAX HAS PASSED THE FOLLOWING ORDER : SHRI RADHEYSHYAM AGRAWAL PROP. M/S OM TIMBER MART, PARTWADA, PAN - AASPA7111N FILED AN APPLICATION U/S 119(2)(B) ON 3 - 3 - 2003 FOR CONSIDERATION OF DELAY IN FILING OF THE RETURN OF INCOME FOR A.Y. 1999 - 2000, FILED ON 15 - 10 - 2001, CLAIMING A REFUND OF RS.11,08,194/ - . SINCE THE RETURN WAS FILED BEYOND THE TIME PRESCRIBED U/ 139 OF THE I.T. ACT, THEREFORE, THE REFUND WAS NOT ISSUED ON THE RETURN. THE REASONS FOR FILING THE RETURN LATE WERE MENTIONED AS UNAVOIDABLE CIRCUMSTANCES INCLUDING VERY LATE RECEIPT OF TDS/TCS CERTIFICATES FROM THE FOREST D EPARTMENT, DEATH OF ONE BROTHER AND ILLNESS OF ANOTHER BROTHERS, 132(1) ACTION TAKEN PLACE ON 14 - 10 - 1999 AT THE PREMISES OF THE ASSESSEE AND THAT ON SEARCH ON THE ADVICE OF THE ADVOCATE OF THE ASSESSEE, HE WAS UNDER BONAFIDE BELIEF THAT HE HAS TO FILE BLOC K RETURN FOR THE LAST TEN ASSESSMENT YEARS. 2. IN THIS CONNECTION SHRI RADHEY SHYAM SARDA, C.A. AND AUTHORISED REPRESENTATIVE OF THE ASSESSEE PRODUCED CERTAIN DOCUMENTS AND FILED DETAILS. THE SUBMISSIONS OF THE ASSESSEE AND THE REPORT OF THE AO, THE ADDL. CIT AND THE CIT RECEIVED IN THE MATTER HAVE BEEN CONSIDERED. 3. AFTER EXAMINING THE MATTER, THE FOLLOWING FACTS EMERGE: - I) THE ASSESSEE HAD NO EVIDENCE TO PROVE THAT THE TDS/TCS CERTIFICATES WERE RECEIVED LATE. II) ON THE DEATH OF HIS BROTHER AND ILLNES S OF HIS BROTHERS, THE DAY TO DAY BUSINESS AND WORKING OF THE ASSESSEE WAS NOT AFFECTED . THEREFORE, THIS CANNOT BE CONSIDERED A REASONABLE GROUND FOR LATE FILING OF RETURN. III) THE ASSESSEES SUBMISSION THAT ON ACTION U/S 132(1) HIS COUNSEL/ADVOCATE GAVE HIM WRONG ADVICE CANNOT BE CONSIDERED REASONABLE GROUND FOR DELAY. IV) AFTER ACTION U/S 132(1), THE ASSESSEE SHOULD HAVE BEEN MORE CAUTIOUS AND MORE CAREFUL AND PROMPT IN COMPLIANCE OF THE LEGAL PROVISIONS. V) THE ASSESSEE IN HIS WRITTEN SUBMISSION HAS STA TED HAT HE CHANGED COMMISSION @ 1% ON THE SALES OF TIMBER. ON EXAMINATION OF THE TRADING 3 ITA NO. 79/NAG/2012 AND PROFIT AND LOSS ACCOUNT IT IS FOUND THAT ON THE TOTAL SALES OF RS.2,18,66,812/ - HE HAS SHOWN COMMISSION OF RS.1,90,240/ - WHICH IS ABOUT 0.87% WHICH IS MUCH BELOW T HE DECLARED RATE OF 1%. AFTER CLAIMING MISCELLANEOUS EXPENSES AGAINST THE COMMISSION/GROSS PROFIT, THE ASSESSEE HAS DECLARED LOSS OF RS.47,680/ - FROM THE BUSINESS OF TIMBER. THE LOSS DECLARED IS NOT VERIFIABLE AND IT CANNOT BE SAID THAT THE INCOME DECLARED FROM BUSINESS IS REASONABLE AND ACCEPTABLE. VI) IN THIS CASE IN RESPONSE TO NOTICE U/S 158BC, RETURN FOR BLOCK ASSESSMENT, INCLUDING A.Y. 1999 - 2000 WAS FILED BY THE ASSESSEE ON 16 - 10 - 2001. IN THIS RETURN ALSO NO CLAIM FOR THE TDS/TCS WAS MADE. 4. CONSIDER ING THE ABOVE FACTS, PARTICULARLY THE FACT OF SEARCH U/S 132(1) ON 14 - 10 - 1999, I AM SATISFIED THAT THIS IS NOT A FIT CASE FOR CONDONATION OF DELAY U/S 119(2)(B). THEREFORE, BY VIRTUE OF POWERS VESTED IN ME U/S 119(2)(B) OF THE ACT, THE DELAY IN FILING RETU RN OF INCOME CLAIMING REFUND FOR THE A.Y. 1999 - 2000 IS NOT CONDONED. THE APPLICATION OF THE ASSESSEE IS REJECTED. 3. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE OUTSET WE NOTE THAT THIS CASE WAS EARLIER HEARD ON 13 - 03 - 2013. THE SAME WAS RELEASED ON 14 - 03 - 2013 BY NOTING THAT THE IMPUGNED ORDER IS PASSED U/S 119(2)(B) OF THE ACT AND THE SAME IS NOT AN APPEALABLE ORDER U/S 253 OF THE ACT. HENCE FOR SEEKING CLARIFICATION THE FILE WAS RELEASED. NOW WE HAVE HEARD THIS APPEAL. LEARNED C OUNSEL OF THE ASSESSEE COULD NOT GIVE ANY COGENT CLARIFICATION THAT SECTION 253 OF THE I.T. ACT WHICH DEALS WITH THE APPEALS TO THE APPELLATE TRIBUNAL EMPOWERS ITAT TO HEAR APPEAL AGAINST THE ORDER U/S 119(2)(B) OF THE I.T. ACT. HOWEVER, LEARNED COUNSEL CL AIMED THAT THE ASSESSEE IS A VERY OLD PERSON. THERE HAS BEEN TREMENDOUS INJUSTICE DONE TO HIM. HENCE THE TRIBUNAL SHOULD EXERCISE INHERENT POWERS AND RENDER JUSTICE. IN THIS REGARD LEARNED COUNSEL REFERRED TO T HE ORDER OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. PATEL MAHESHBHAI DAHYABHAI 222 TAXMAN 0153 AND HONBLE APEX COURT DECISION IN THE CASE OF CIT VS. SHELLY PRODUCTS 261 ITR 0367. LEARNED COUNSEL ALSO REFERRED TO THE INHERENT POWERS OF THE COURT UNDER CPC. 4 ITA NO. 79/NAG/2012 5. PER CONTRA LEARNED D.R. SUBMITT ED THAT THE ORDER U/S 119(2)(B) OF THE I.T. ACT IS NOT APPEALABLE BEFORE THE ITAT U/S 253 OF THE I.T. ACT. LEARNED D.R. FURTHER SUBMITTED THAT LEARNED CHIEF COMMISSIONER OF INCOME TAX HAS PASSED A REASONABLE AND A SPEAKING ORDER. IF THE ASSESSEE SEEKS RELI EF AGAINST THE ORDER U/S 119(2)(B), THE REMEDY LIES WITH THE WRIT JURISDICTION OF THE HONBLE HIGH COURT. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. ADMITTEDLY THE ORDER U/S 119(2)(B) OF THE I.T. ACT PASSED BY THE CHIEF COMMISSIONER OF INCOME TAX IS NOT AN APPEALABLE ORDER U/S 253 OF THE I.T. ACT BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE CASE FROM THE HONBLE GUJARAT HIGH COURT DOES NOT SUPPORT THE CASE OF THE ASSESSEE AS IN THE SAID ORDER HONBLE GUJARAT HIGH COURT WAS CONSIDERING A WRIT PETITIO N. ADMITTEDLY THE ITAT HAS NO WRIT JURISDICTION. WE ALSO FIND THAT HONBLE APEX COURT DECISION IN THE CASE OF SHELLY PRODUCTS (SUPRA) ALSO EXPOUNDED THAT LEGITIMATE TAX PAID BY THE ASSESSEE BEYOND WHAT IS LEGALLY REQUIRED SHOULD BE REFUNDED. HOWEVER, WE FI ND THAT AT PRESENT WE ARE DEALING WITH AN APPEAL AGAINST THE ORDER U/S 119(2)(B) OF THE I.T. ACT WHICH IS NOT APPEALABLE BEFORE US. WE ALSO NOTE THAT IN THE SAID ORDER THE LEARNED CHIEF COMMISSIONER OF INCOME TAX HAS ALSO DEALT WITH THE MERITS OF THE CLAI M WHILE CONSIDERING THE CONDONATION OF DELAY IN FILING THE RETURN AND HAS DRAWN AN ADVERSE INFERENCE ON THE MERITS OF THE CASE. IN THIS REGARD THE ASSESSEE IN THE GROUNDS OF APPEAL HAS RAISED AN ISSUE THAT LEARNED C HIEF COMMISSIONER OF INCOME TAX HAD ERRE D IN NOT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THOUGH IT IS SETTLED LAW THAT EVEN ADMINISTRATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE AS EXPOUNDED BY HONBLE APEX COURT IN THE CASE OF SAHARA INDIA (FIRM) 300 ITR 40 3 , WE ARE CONSTRAINED TO OBSERVE THAT SINCE UNDER SECTION 253 OF THE I.T. ACT THE ORDER U/S 119(2)(B) IS NOT APPEALABLE BEFORE US, WE ARE NOT INCLINED TO EXCEED OUR JURISDICTION AND PASS ANY ORDER DIRECTING THE LEARNED CHIEF COMMISSIONER OF INCO ME TAX TO GRANT THE 5 ITA NO. 79/NAG/2012 ASSESSEE AN OPPORTUNITY OF BEING HEARD. HENCE THIS APPEAL BY THE ASSESSEE STANDS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF FEBRUARY , 2016. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 5 TH FEBRUARY , 2016. COPY FORWARDED TO : 1. SHRI RADHEYSHYAM AGRAWAL, C/O ADV. MANOJ MORYANI, 1 ST FLOOR, SUDAMA BHAVAN, NEAR SUT MARKET, GANDHIBAGH, NAGPUR - 440002. 2. CHIEF COMMISSIONER OF INCOME - TAX - , NAGPUR. 3. D.R., ITAT, NAGPUR. 4. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.