Shri Ramesh Verma, Mumbai V. The Income tax Officer,Ward-6(3), Surat

ITA 826/AHD/2012

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2268 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-07-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 13-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R MEENA
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 273B; 143(3)

Judgement Text

RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 1 OF 9 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.826/AHD/2012/SRT / ASSESSMENT YEAR : 2010-11 RAMESH VERMA, PROP. OF M/S. KUSH INTERNATIONAL, 626, PANCHRATNA, OPERA HOUSE, MUMBAI 400 004. [PAN: ABCPV 7139 G] VS. THE INCOME TAX OFFICER, WARD-6(3), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI PRAKASH D. SHAH CA /REVENUE BY SHRI S.R.MEENA SR.DR / DATE OF HEARING: 0 7 .0 8 .2018 /PRONOUNCEMENT ON 30 .08. 2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)IV, SURAT (IN SHORT THE CIT (A)) DATED 27.07.2006 PERTAINING TO RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 2 OF 9 ASSESSMENT YEAR 2002-03, WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE INCOME TAX OFFICER, WARD-6(3), SURAT (IN SHORT THE AO) DATED 28.03.2013 UNDER SECTION 143(3) OF INCOME TAX ACT,1961 (IN SHORT THE ACT). 2. GROUNDS RAISED BY THE ASSESSEE READ AS FOLLOWS : 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN NOT QUASHING THE ORDER PASSED U/S.143(3) OF THE ACT, AS THE SAID SAME IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE AND FACTS OF THE CASE AND THEREFORE THE ORDER PASSED BY THE LEARNED AO SHOULD BE QUASHED AND ADDITION MADE THEREIN SHOULD BE DELETED IN FULL. 2. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE DISALLOWANCE OUT OF CASH PURCHASE OF RS.21,27,392/-, AND THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE SAID ALLOWANCE. 3. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE DISALLOWANCE OUT OF CREDIT PURCHASE OF RS.99,77,530/-, AND THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE SAID DISALLOWANCE. CONDONATION OF DELAY IN FILING OF APPEAL: 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL ORDER WAS PASSED BY CIT(A)-IV, SURAT ON 27.07.2006 AND IT WAS SERVED UPON SHRI SURENDRA MEHTA, CA OF THE ASSESSEE. HOWEVER, THE COPY OF ORDER WAS NOT RECEIVED BY THE ASSESSEE RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 3 OF 9 BUT REMAINED WITH THE CA AND APPELLANT WAS UNDER IMPRESSION THAT THE APPEAL IS PENDING BEFORE THE CIT(A). HOWEVER, ON ENQUIRY IN THE MONTH OF MARCH 2012, IT WAS LEARNT THAT THE CIT(A) HAS PASSED THE ORDER ON 27.07.2006 AND IT WAS TAKEN BY THE ASSESSEE FROM SHRI SURENDRA MEHTA, CA IN THE LAST MONTH OF MARCH, 2012 ONLY AND THEREFORE THE APPEAL IS FILED ON 13.04.2012 BEFORE THE TRIBUNAL. THUS, THERE IS DELAY IN FILING OF APPEAL BY 2027 DAYS. IT WAS STATED THAT THE DELAY IN FILING OF APPEAL WAS OCCURRED AS THE CA OF THE ASSESSEE SHRI SURENDRA MEHTA DID NOT INFORM THE ASSESSEE, IN HIS AFFIDAVIT DATED 10- 04.2012, SHRI SURENDRA MEHTA, DEPOSED THAT THE APPEAL ORDER DATED 27.07.2006 PASSED BY THE CIT(A)-IV, SURAT WAS SERVED UPON HIM. ON ACCOUNT OF ILLNESS OF IS MOTHER, THE SAID APPEAL ORDER WAS NOT FORWARDED TO THE SHRI RAMESH VERMA AT MUMBAI AND SAME REMAINS IN HIS OFFICE. HE WAS UNDER THE IMPRESSION THAT APPEAL AGAINST THE CIT(A) ORDER IN THE CASE OF ASSESSEE HAS BEEN FILED BY HIS SENIOR CONSULTANT AT AHMEDABAD. HOWEVER, THE FACT THAT NO APPEAL WAS FILED CAME TO HIS NOTICE RECENTLY. HOWEVER, ON ACCOUNT OF MISUNDERSTANDING AND UNAVOIDABLE CIRCUMSTANCES THE APPEAL BEFORE ITAT COULD NOT RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 4 OF 9 BE FILED IN TIME, THEREFORE, IT WAS REQUESTED TO CONDONE THE DELAY AND ADMIT THE APPEAL IN THE INTEREST OF NATURAL JUSTICE TO THE APPELLANT. SIMILARLY, AN AFFIDAVIT DATED 10.04.2012 IS ALSO FILED FROM THE ASSESSEE WHEREIN IT IS STATED THAT THE APPEAL ORDER WAS PASSED IN YEAR 2006 WAS SERVED UPON HIS CHARTERED ACCOUNTANT, SHRI SURENDRA MEHTA. DUE TO UNAVOIDABLE CIRCUMSTANCES, THE APPEAL ORDER WAS NOT FORWARDED TO HIM AND WAS REMAINED WITH SHRI SURENDRA MEHTA, CA OF THE ASSESSEE AND HE WAS UNDER THE IMPRESSION THAT HIS APPEAL FOR ABOVE ASSESSMENT ORDER WAS PENDING WITH THE CIT(A)-IV, SURAT. IT WAS LEARNT THAT THE ORDER HAS ALREADY BEEN PASSED ON 27.07.2006 AND WAS SERVED UPON HIS CA. THEREFORE, ON ACCOUNT OF MISUNDERSTANDING AND IMPRESSION ON PART OF HIS CONSULTANT THE APPEAL COULD NOT BE FILED BEFORE THE ITAT AGAINST THE ABOVE REFERRED ORDER. THEREFORE, THE FILING OF APPEAL BEFORE ITAT WAS BEYOND HIS CONTROL. HENCE, IT WAS REQUESTED TO CONDONE THE DELAY AND ADMIT THE APPEAL. 4. THE LD.COUNSEL REQUESTED TO CONDONE THE DELAY AND SUBMITTED THAT THE DELAY WAS OCCURRED ON ACCOUNT OF MISTAKE RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 5 OF 9 OF ASSESSEES CHARTERED ACCOUNTANT, THEREFORE, SAME MAY BE CONDONED. THE LD.COUNSEL HAS ALSO PLACED RELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN ITA NO.493/2015 IN THE CASE OF V. V. MEGHANI VS. DCIT 86 TAXMANN.COM 98 398 ITR 350 (BOM) WHEREIN IT WAS HELD THAT IF THE LITIGANT HAD ADHERED UNDER LEGAL ADVICE BONAFIDE, AND THAT IS MISTAKEN, ORDINARILY HE SHOULD NOT BE PENALIZED. IF A LITIGANT APPROACHES A PROFESSIONAL AND WHO ADVICES HIM TO TAKE A COURSE OF ACTION, AS IN THE INSTANT CASE, THEN THE BONA-FIDES OF THE PROFESSIONAL ARE NOT TO BE TESTED. IF THE LITIGANT HAS ADHERED ON SUCH ADVICES, THEN, BECAUSE THAT ADVICE WAS ERRONEOUS OR MISTAKEN DOES NOT MEAN THAT EITHER THE PROFESSIONAL OR LITIGANT AS ANY ULTERIOR MOTIVE. IN SUCH SITUATION, THERE IS NO NEGLIGENCE ON OR NOR DELIBERATE OR INTENTIONAL ACT ON THE PART OF THE ASSESSEE AND THE DELAY IN FLING OF APPEAL CAN BE CONDONED. 5. PER CONTRA, THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED THE DELAY OF ALMOST OF 6 YEARS OF NON-FILING OF APPEAL BEFORE THE TRIBUNAL AND SUBMITTED THAT THE INACTION ON THE PART OF CA CANNOT BE TREATED AS REASONABLE CAUSE FOR RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 6 OF 9 NON-FILING OF APPEAL WITHIN TIME. THE LD. SR. DR FURTHER SUBMITTED THAT THE APPELLANT WAS CONTESTING APPEAL BEFORE ITAT IN THE YEAR OF 2009 AS AN APPEAL ORDER FOR ASSESSMENT YEAR 2003-04 IN ITA NO.541/AHD/2007 OF WHICH ORDER WAS PASSED ON 18.12.2009. THEREFORE, THE CONTENTION OF THE ASSESSEE CANNOT BE BELIEVED HE WAS NOT AWARE OF THE ORDER PASSED BY THE CIT (A) IN YEAR 2006. THAT HE CAME TO NOTICE OF THIS APPEAL ORDER IN THE MONTH OF MARCH 2012 ONLY. THIS CLAIM IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. 6. WE HAVE CONSIDERED THE FACTS AND HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE ARE OF THE VIEW THAT IT IS SETTLED LAW THAT THE COURTS ARE QUASI-JUDICIAL BODIES AND ARE EMPOWERED TO CONDONE THE DELAY IF THE LITIGANT SATISFIES THE COURT THAT THERE WERE SUFFICIENT REASONS FOR THE AVAILING THE REMEDY AFTER THE EXPIRY OF THE LIMITATION. SUCH A REASONING SHOULD BE TO THE SATISFACTION OF THE COURT. THE EXPRESSION SUFFICIENT CAUSE OR REASON AS PROVIDED IN SUB- SECTION(5) OF SECTION 253, SUB-SECTION(3) OF SECTION 249 OF THE INCOME TAX ACT 1961 IS USED IN IDENTICAL TERMS IN THE RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 7 OF 9 LIMITATION ACT AND THE CPC. SUCH EXPRESSION HAS ALSO BEEN USED IN UNDER SECTION 273B OF THE ACT, 1961. THE EXPRESSION SUFFICIENT CAUSE WITHIN THE MEANING OF SECTION 5 OF LIMITATION ACT AS WELL AS A SIMILAR OTHER PROVISIONS AND THE AMBIT OF EXERCISE OF POWERS THEREUNDER HAVE BEEN SUBJECT MATTER OF CONSIDERATION BEFORE THE HONOURABLE APEX COURT ON VARIOUS OCCASIONS. IN THE CASE OF THE STATE OF WEST BENGAL VS. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749, THE HON'BLE SUPREME COURT, WHILE CONSIDERING THE SCOPE OF THE EXPRESSION OF SUFFICIENT CAUSE FOR CONDONATION OF DELAY, HAS HELD THAT THE SAID EXPRESSION SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDE IS IMPUTABLE TO THE PARTY. IN EVERY CASE OF DELAY, THERE MIGHT BE SOME OMISSIONS/NEGLIGENCE HAS TO BE WEIGHED IN THE LIGHT OF EXIST CIRCUMSTANCES OF EACH CASE. IN THE LIGHT OF ABOVE FACTS AND JUDGEMENTS, IF WE EXAMINED THE FACTS OF THE PRESENT CASE, WE FIND THAT THE IMPUGNED ORDER UNDER APPEAL WAS RECEIVED BY HIS CHARTERED ACCOUNTANT, THE THEN HIS CA. HOWEVER, THE APPEAL WAS NOT FILED BY SAID CHARTERED ACCOUNTANT I.E. SHRI RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 8 OF 9 SURENDRA MEHTA. IT WAS THE DUTY CAST ON THE ASSESSEE TO LOOK AFTER HIS AFFAIRS AND VIGILANT ALSO FOR INCOME-TAX PROCEEDINGS AGAINST HIM. THEREFORE, THE EXPLANATION PROVIDED BY THE ASSESSEE IS THAT THERE IS NEGLIGENCE OF HIS AUTHORISED REPRESENTATIVE IS NOT ACCEPTABLE AS THERE WAS NEGLIGENCE AS WELL AS ON THE PART OF THE ASSESSEE. IT IS NOT A CASE THAT HIS COUNSEL HAD ADVISED HIM NOT TO FILE AN APPEAL. THUS, THERE IS NEGLIGENCE OF COMMISSION IS A BYPRODUCT OF A DELIBERATE ATTEMPT WITH MALA-FIDE INTENTION FOR DELAY THE PROCESS OF THE LITIGATION WHICH COULD GIVE SOME BENEFIT TO THE LITIGANT, THEN PROBABLY PROCESS OF LITIGATION WHICH WOULD VIEW SOME BENEFIT WITH THE LITIGANT THEN PROBABLY THAT DELAY WOULD NOT DESERVED TO BE CONDONED. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY REASONABLE CAUSE FOR NOT FILING APPEAL WITHIN TIME ALLOWED BY STATUTE. THEREFORE, WE ARE UNABLE TO CONDONE THE VERY LONG DELAY OF 2027 DAYS IN FILING OF APPEAL. HENCE, THE APPEAL IS DISMISSED ON ACCOUNT OF FILING IN DELAY. THEREFORE, REGULAR GROUND OR ADDITIONAL GROUND ARE NOT TO BE ADJUDICATED. RAMESH VERMA VS. ITO, WARD 6(3), SURAT./I.T.A. NO.826/AHD/2012/SRT/A.Y.:2002-03 PAGE 9 OF 9 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30-08-2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED : 30 TH AUG, 2018 COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT