JCIT(OSD),Circle-5, Kolkata, Kolkata V. M/s Hindusthan Copper Ltd., Kolkata

ITA 822/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99699 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 21-05-2012
• Court: TRIBUNAL
• Department Lawyers: SACHIDANANDA SRIVASTAVA
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI S. V. MEHROTRA, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO S . 822 TO 824 /KOL/201 2 ASSESSMENT YEAR S : 200 2 - 0 3 TO 2004 - 05 & ITA NO. 893/KOL/2012 ASSESSMENT YEAR: 2008 - 09 JOINT COMMISSIONER OF INCOME - TAX (OSD) , VS. M/S. HINDUSTHAN COPPER LTD. CIRCLE - 5 , KOLKATA. (PAN:AA ACH7409R ) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 0 6 .0 8 .2015 DATE OF PRONOUNCEMENT: 06 . 0 8 . 2015 FOR THE APPELLANT: S HRI SACHIDANANDA SRIVASTAVA , CIT, DR FOR THE RESPONDENT: S HRI SANJAY BHATTACHARYA , FCA ORDER PER SHRI MAHAVIR SINGH, JM: ALL THESE APPEAL S BY REVENUE ARE ARISING OUT OF SEPARATE ORDER S OF CIT(A) - V I , KOLKATA IN APPEAL NO S . 941, 1485, 1417 / CIT(A) - V I / CIR - 5/09 - 10/KOL ALL DATED 16.01.2012 A ND 212 /CIT(A) - V I / R - 5/ 201 0 - 1 1/KOL DATED 1 4 . 0 2 .20 1 2 . ASSESSMENT FOR AY 2003 - 04 WAS FRAMED BY JCIT (OSD), CIRCLE - 5, KOLKATA U/S. 147/143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) AND ASSESSMENTS FOR AY 2002 - 03, 2004 - 05 AND 2008 - 09 WERE FRAMED BY ADDL. CIT, RANGE - 5, KOLKATA U/S. 147/143(3) AND 143(3) OF THE ACT VIDE ITS SEPARATE ORDER S DATED 30.11.2009, 29.08.2008 AND 31 . 12 .20 1 0 RESPECTIVELY . 2. AT THE OUTSET, IT IS NOTICED THAT THE APPEALS FOR AYS. 2002 - 03 TO 2004 - 05 ARE DELAYED BY 32 DAYS AND THE COMMON REASONS STATED IN ALL THE AFFIDAVITS READ AS UNDER , WHICH IS EXTRACTED FROM AY 2002 - 03: I, SHRI AJAY KUMAR KESHARI, SON OF DR. BANSHROPAN PD. KESHARI, AM WORKING AS DEPUTY COMMISSIONER OF INCOME TAX, CIRC LE - 5, KOLKATA, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069, SOLEMNLY AFFIRM THAT THE LAST DATE FOR FILING SECOND APPEAL AGAINST THE APPEAL NO. 941/CIT(A) - VI/CIR - 5/09 - 10/KOL DATED 16.01.2012 IN THE CASE OF M/S. HINDUSTAN COPPER LIMITED FOR THE AY 2002 - 03 WAS ON 14.04.2012. BUT IT COULD NOT BE FILED FOR FOLLOWING REASONS: DATE REASONS 13/04/2012 APPLICATION FOR FILING SECOND APPEAL COMMUNICATED 14/04/2012 & 15/04/2012 SATURDAY & SUNDAY 16/04/2012 TO 20/04/2012 NECESSARY PAPERS FOR FILING APPEAL WAS COLLECTED AND PREPARED 2 ITA NO. 822 - 824 & 893 /K/201 2 HINDUSTHAN COPPER LTD. AY 2002 - 03 TO 2004 - 05 & 200 8 - 0 9 21/04/2012 & 22/04/2012 SATURDAY & SUNDAY 23/04/2012 TO 27/04/2012 PHOTO COPIER MACHINE WAS OUT OF ORDER 28/04/2012 & 29/04/2012 SATURDAY & SUNDAY 30/04/2012 TO 04/05/2012 NECESSARY PAPER PREPARED 05/05/2012 & 06/05/2012 SATURDAY & SUNDAY 07/05/2012 & 08/05/2012 NECESSARY PHOTO COPY COMPLETED 09/05/2012 TO 11/05/2012 GROUNDS OF APPEAL PREPARED 12/05/2012 & 13/05/2012 SATURDAY & SUNDAY 14/05/2012 TO 18/05/2012 GROUNDS OF APPEAL AND OTHER PAPERS XEROXED 19/05/2012 & 20/05/2012 SATURDAY & SUNDAY DUE TO HUGE PENDENCY OF CASES, DELAY OCCURRED IN SENDING PAPERS FOR FILING OF SECOND APPEAL. THAT THE DELAY IS NOT DELIBERATE AND THE RESPONDENT DOES NOT GAIN IN ANY MANNER BY DELAY COMMITTED. THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY AND IT IS PRAYED THAT THE SAME MAY BE CONDONED. AND THE REASONS STATED IN THE AFFIDAVIT FOR AY 2008 - 09 READ AS UNDER: I, SHRI AJAY KUMAR KESHARI, SON OF DR. BANSHROPAN PD. KESHARI, AM WORKING AS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 5, KOLKATA, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069, SOLEMNLY AFFIRM THAT THE LAST DATE FOR FILING SECOND APPEAL AGAINST THE APPEAL NO. 212 /CIT(A) - VI/ R - 5/ 1 0 - 1 1/KOL DATED 1 4 .0 2 .2012 IN THE CASE OF M/S. HINDUSTAN COPPER LIMITED FOR THE AY 200 8 - 0 9 WAS ON 1 8 .0 5 .2012. BUT IT COULD NOT BE FILED FOR FOLLOWING REASONS: DATE REASONS 19/05/2012 & 20/05/2012 SATURDAY & SUNDAY 2 1/0 5 /2012 TO 2 5/0 5 /2012 PAPERS, GROUNDS OF APPEAL PREPARED 26 /0 5 /2012 & 2 7 /0 5 /2012 SATURDAY & SUNDAY 2 8 /0 5 /2012 TO 01 /0 6 /2012 NECESSARY PAPERS FOR FILING APPEAL XEROXED 0 2/0 6 /2012 & 03 /0 6 /2012 SATURDAY & SUNDAY 04 /0 6 /2012 TO 07 /0 6 /2012 PAPERS READY FOR FILING SECOND APPEAL DUE TO HUGE PENDENCY OF CASES, DELAY OCCURRED IN SENDING PAPERS FOR FILING OF SECOND APPEAL. THAT THE DELAY IS NOT DELIBERATE AND THE RESPONDENT DOES NOT GAIN IN ANY MANNER BY DELAY COMMITTED. THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY AND IT IS PRAYED THAT THE SAME MAY BE CONDONED. 3 . THE REVENUE HAS STATED THAT THE REASONS STATED IN ALL TH E AFFIDAVITS APPEAR TO BE GENUINE AND DELAY HAS OCCURRED DUE TO PENDENCY OF CASES BEFORE THE AO. ACCORDING TO THE REVENUE, THE DELAY IS NOT AT ALL DELIBERATE AND IT IS NOT GOING TO GAIN IN ANY MANNER BY COMMITTING DELAY, WHICH WAS INADVERTENT. VIDE EARLI ER FROM NO. 36 REVENUE DISCLOSED THAT THE EARLIER ORDER WAS RECEIVED ON 14.04.2012 BUT ASSESSEE CONTESTED THIS FACT AND STATED THAT THE DATE OF COMMUNICATION OF ORDER APPEALED AGAINST IS 15.02.2012 AND ACCORDINGLY, REVENUE FILED REVISED FORM NO. 36 AND DEL AY WAS EXPLAINED ONLY W.E.F. 13.04.2012. LD. SR. DR FAIRLY ADMITTED THAT THE ORDER APPEALED AGAINST WAS 3 ITA NO. 822 - 824 & 893 /K/201 2 HINDUSTHAN COPPER LTD. AY 2002 - 03 TO 2004 - 05 & 200 8 - 0 9 COMMUNICATED TO THE CIT CONCERNED ON 15.02.2012 AND NOT ON 14.04.2012 AS CONTENDED EARLIER. HE CONCEDED THAT APART FROM ABOVE REASONS NARRATED BY THE A O IN AFFIDAVITS AND SUBSEQUENT AFFIDAVITS HE HAS NOTHING TO SAY. 4. WE FIND THAT THE REVENUE COULD NOT FILE EXPLANATION FOR DELAY AND COULD NOT EXPLAIN WHETHER BONA FIDE EFFORTS WERE MADE OR NOT. HENCE, WE ARE UNABLE TO ACCEPT THE UNUSUAL EXPLANATION THA T THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED TAPE IN THE PROCESS. IN SIMILAR CIRCUMSTANCES, HON BLE SUPREME COURT IN THE CASE OF OFFICE OF THE POSTMASTER VS. LIVING MEDIA INDIA LTD. IN CIVIL APPEAL NO. 2474 - 2 475 OF 2012 (ARISING OUT OF SLP(C) NOS. 7595 - 7596 OF 2011 DATED 24.02.2012, WHEREIN IT IS HELD AS UNDER: 13) IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT UNLESS THEY HAVE REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THERE WAS BONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EX PLANATION THAT THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS/YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED - TAPE IN THE PROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMIT MENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERYONE UNDER THE SAME LIGHT AND SHOULD NOT BE SWIRLED FOR THE BENEFIT OF A FEW. CONSIDERING THE FACT THAT THERE WAS N O PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, ACCORDING TO US, THE DEPARTMENT HAS MISERABLY FAILED TO GIVE ANY ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. ACCORDINGLY, THE APPE ALS ARE LIABLE TO BE DISMISSED ON THE GROUND OF DELAY. IN SIMILAR CIRCUMSTANCES WE HAVE ALREADY REFUSED TO CONDONE THE DELAY OF FILING APPEAL OF REVENUE IN ITA NO. 1192/KOL/2012 FOR AY 2008 - 09 IN THE CASE OF DCIT VS. M/S. THE ORISSA MINERALS DEVELOPMENT C O. LTD. IN SUCH CIRCUMSTANCES, WE REFUSE TO CONDONE THE DELAY AND HENCE THE APPEAL S OF REVENUE ARE IS DISMISSED AS UNADMITTED ON THE GROUND OF DELAY. 5 . IN THE RESULT, ALL THE APPEAL S OF REVENUE ARE DISMISSED. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . ( S. V. MEHROTRA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 06 TH AUGUST , 201 5 JD. SR. P.S 4 ITA NO. 822 - 824 & 893 /K/201 2 HINDUSTHAN COPPER LTD. AY 2002 - 03 TO 2004 - 05 & 200 8 - 0 9 COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT J CIT (OSD)/DCIT , CIR - 5 , KOLKATA . 2 RESPONDENT M/S. HINDUSTHAN COPPER LTD., 1, ASHUTOSH CHOWDHURY AVENUE, TAMRA BHAWAN, KOLKATA - 700 019 3 . THE CIT (A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .