Ashok D Thakkar, Surat V. Income tax Officer Ward2(1), Surat

ITA 86/SRT/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7269 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 11-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRINIVAS T BIDNI
• Keywords: Period of limitation; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH : SURAT BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA.NO.86/SRT/2019 ASSESSMENT YEAR 2011-2012 SHRI ASHOK D. THAKKAR, B-202, SHIV ABHISHEK RESIDENCY, NR. SOMESHWARA ENCLAVE, VESU, SURAT. PAN AALPT8469M VS. THE ITO, WARD-2(1), AAYKAR BHAVAN, MAJURA GATE, SURAT. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI KIRAN K. SHAH, C.A. FOR REVENUE : SHRI SRINIVAS T. BIDNI, CIT-DR DATE OF HEARING : 25.07.2019 DATE OF PRONOUNCEMENT : 25.07.2019 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-2, SURAT, DATED 17.04.2015, FOR THE A.Y. 2011-2012. 1.1. ACCORDING TO FORM NO.36 I.E., APPEAL PAPERS, ASSESSEE HAS MENTIONED 25.04.2015 AS THE DATE OF SERVICE OR COMMUNICATION OF THE ORDER APPEALED AGAINST. HOWEVER, THE 2 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. APPEAL IS FILED IN THE O/O. TRIBUNAL ON 11.02.2019. THE OFFICE, THEREFORE, REPORTED THAT APPEAL IS TIME BARRED BY 1328 DAYS. 2. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY. IT IS STATED IN THE APPLICATION THAT THERE WAS DISPUTE BETWEEN THE ASSESSEE AND THE THEN AUTHORISED REPRESENTATIVE SHRI PIYUSH BHANSALI, C.A. AND THEREFORE, THE APPEAL BEFORE THE LD. CIT(A) WAS NOT ATTENDED. THEREAFTER, THE ASSESSEE HAD APPROACHED TO SHRI ASHOK ADUKIA, C.A. FOR FURTHER APPEAL TO BE FILED BEFORE THE ITAT, AHMEDABAD BENCH. THE STAFF OF O/O. SHRI ASHOK ADUKIA HAD PUT THE APPEAL ORDER IN THE FILE OF SOME OTHER CASE AND HIS ASSISTANT SHRI SACHIN JALAN WAS UNDER BONAFIDE IMPRESSION THAT THE APPEAL WAS GIVEN TO SENIOR C.A. SHRI K.K.SHAH. THIS FACT WAS FOUND IN THE LAST WEEK OF FEBRUARY, 2019 AND IMMEDIATELY THEREAFTER THE APPEAL HAS BEEN FILED. AN AFFIDAVIT OF SHRI SACHIN JALAN IS FILED. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS A REASONABLE CAUSE, THEREFORE, DELAY IN FILING THE APPEAL MAY BE CONDONED. LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE JUDGMENTS OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORP. 3 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. LTD., [2011] 334 ITR 269 (SC) AND COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & OTHERS 1987 AIR 1353 (SC). 3. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT DELAY IS VERY ABNORMAL AND THAT NO REASONABLE CAUSE HAVE BEEN EXPLAINED FOR FAILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. THEREFORE, APPLICATION OF ASSESSEE FOR CONDONATION OF DELAY IN FILING THE APPEAL MAY BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN THIS CASE, ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) TO ARGUE THE APPEAL DESPITE GIVING SEVERAL OPPORTUNITIES. THE ASSESSEE DID NOT COOPERATE WITH THE LD. CIT(A) FOR FINALIZATION OF THE APPEAL. THEREFORE, THE LD. CIT(A) WAS COMPELLED TO DECIDE THE APPEAL OF THE ASSESSEE EXPARTE. THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE. THE ASSESSEE CLAIMED IN THE APPLICATION FOR CONDONATION OF DELAY THAT THERE WAS A DISPUTE BETWEEN THE ASSESSEE AND EARLIER COUNSEL SHRI PIYUSH BHANSALI, C.A. THEREFORE, THERE WAS NO REPRESENTATION BEFORE THE LD. CIT(A). HOWEVER, NO MATERIAL OR EVIDENCE HAS BEEN PRODUCED IN SUPPORT OF SUCH CLAIM. THEREFORE, MERE STATEMENT IN THE 4 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. APPLICATION CANNOT BE ACCEPTED. THE ASSESSEE FURTHER EXPLAINED THAT THEREAFTER, ASSESSEE HAD APPROACHED C.A. SHRI ASHOK ADUKIA FOR FILING FURTHER APPEAL BEFORE THE ITAT. IT IS CLAIMED THAT THE STAFF OF SHRI ASHOK ADUKIA HAD PUT THE APPEAL ORDER IN FILE OF SOME OTHER CASE AND HIS ASSISTANT SHRI SACHIN JALAN WAS UNDER BONAFIDE IMPRESSION THAT PAPERS HAVE BEEN GIVEN TO SENIOR C.A. SHRI K.K. SHAH. THE CLAIM OF ASSESSEE IS AN AFTERTHOUGHT AND NOT SUPPORTED BY ANY EVIDENCE OR MATERIAL ON RECORD. THE ASSESSEE HAS PAID THE TRIBUNAL FEES FOR FILING OF THE APPEAL ON 07.02.2019. ON ONE HAND THE ASSESSEE CLAIMED THAT THERE WAS A DISPUTE BETWEEN THE ASSESSEE AND THE EARLIER COUNSEL. DESPITE THAT ASSESSEE WAS NOT VIGILANT AND DID NOT MAKE ANY EFFORT TO SEE THAT APPEAL HAVE BEEN FILED BEFORE THE TRIBUNAL WITHIN THE PERIOD OF LIMITATION OR REASONABLE TIME. THE APPEAL HAS TO BE PREPARED BY THE COUNSEL FOR ASSESSEE AND NOT HIS STAFF, THEREFORE, FILING OF AFFIDAVIT OF MR. SACHIN JALAN, STAFF MEMBER OF C.A. WOULD BE OF NO VALUE. EVEN AFFIDAVIT OF MR. SACHIN JALAN IS FABRICATED BECAUSE HE HAS STATED IN THE AFFIDAVIT THAT DUE TO MISTAKE OF MY STAFF THE ORDER REMAIN IN THE FILE OF SOME OTHER CLIENT. 5 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. HOWEVER, IN THE APPLICATION FOR CONDONATION OF DELAY, IT IS STATED THAT ASSISTANT OF C.A. SHRI SANJEEV JALAN WAS UNDER THE BONAFIDE IMPRESSION THAT THE APPEAL WAS GIVEN TO SENIOR C.A. SHRI K.K. SHAH. IT IS A CASE OF ABNORMAL DELAY OF ABOUT 3 YEARS 8 MONTHS APPROXIMATELY. THERE IS NO JUSTIFICATION GIVEN FOR DELAY IN FILING THE APPEAL. IT IS A CASE WHERE ASSESSEE WAS MOST NEGLIGENT IN NOT PROSECUTING THE APPEAL BEFORE THE LD. CIT(A). DESPITE THE LD. CIT(A) DECIDED APPEAL EX-PARTE, THE ASSESSEE WAS SLEEPING OVER HIS RIGHT IN FILING THE APPEAL. THE ASSESSEE DID NOT MAKE ANY EFFORT TO SEE THAT APPEAL IS FILED WITHIN THE TIME DESPITE LD. CIT(A) PASSED THE EX-PATE ORDER. WHY ASSESSEE REMAINED SILENT FOR ABOUT 3 YEARS 8 MONTHS HAS ALSO NOT BEEN EXPLAINED. THUS, THERE IS NO REASONABLE CAUSE EXPLAINED BY ASSESSEE FOR FAILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. THUS THE EXPLANATION OF ASSESSEE IS CLEARLY AN AFTERTHOUGHT AND WITHOUT ANY SUBSTANCE. 4.1. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. V. ITO [1979] 118 ITR 873, THE CALCUTTA HIGH COURT HELD THAT A 6 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. TRIBUNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE CASE OF VEDABAI ALIAS VIJAYANATABAI BABURAO PATIL V. SHANTARAM BABURAO PATIL [2002] 253 ITR 798' (SC), WHERE IT WAS HELD THAT WHILE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING THE APPEAL WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVED THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NOW IN THE PRESENT CASE DELAY IS NOT OF A FEW DAYS BUT OF 1328 DAYS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLANATION/REASON FOR THE DELAY. IN THE CASE OF CITV. RAM MOHAN KABRA [2002] 257 ITR 773, THE HON'BLE PUNJAB & HARYANA HIGH COURT HAS HELD OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY 7 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CASE DELAY FOR FILING THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF ASSTT. CIT V. TAGGAS INDUSTRIES DEVELOPMENT LTD. [2002] 80 ITD 21 (CAL.), TRIBUNAL, CALCUTTA BENCH, CALCUTTA, DID NOT CONDONE THE DELAY FOR FILING THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DUE TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, WE HOLD THAT ASSESSEE FAILED TO EXPLAIN THAT DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. 4.2. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT APPEAL OF ASSESSEE IS TIME BARRED AND AS SUCH, LIABLE TO BE DISMISSED. THE DECISIONS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE WOULD NOT SUPPORT THE CASE OF THE ASSESSEE. APPEAL OF ASSESSEE IS DISMISSED BEING TIME BARRED. 5. IN THE RESULT, APPEAL OF ASSESSEE DISMISSED. 8 ITA.NO.86/SRT/2019 SH. ASHOK D. THAKKAR, SURAT. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P.MEENA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED 25 TH JULY, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT, SURAT BENCH, SURAT 6. GUARD FILE. //BY ORDER// ASST. REGISTRAR, ITAT, SURAT BENCH BENCH.