SHRI KALU RAM JAT, JAIPUR V. ADDITIONAL COMMISSIONER OF INCOME TAX, JAIPUR

ITA 88/JPR/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9415 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ANIL KAUSHIK
• Keywords: Period of limitation; Competent authority; Time period of passing order; Condonation of delay
• Section: 22

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 88/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 KALU RAM JAT VILL & POST : KALWAR TEH-SANGANER, JAIPUR CUKE VS. ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-7, JAIPUR TOLFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIAPJ9654M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. ANIL KAUSHIK (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/03/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 15/03/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER OF LD. CIT(A)- 3, JAIPUR DATED 12.01.2015 FOR ASSESSMENT Y EAR 2009-10. 2. IT WAS SUBMITTED BY THE LD AR THAT THE APPELLANT HAS OPTED FOR VIVID SE VISHWAS SCHEME IN THIS CASE, WHICH HAS BEEN APPR OVED/ACCEPTED AND FORM 3 HAS BEEN ISSUED BUT WITH THE CONDITION THAT ORDER OF CONDONATION OF DELAY BE FILED ALONG WITH FORM 4 IN DUE COURSE. IT WAS SUBMITTED THAT THE ORDER OF CIT(A) IN THIS CASE WAS PASSED ON 12.1.201 5 HOWEVER IT WAS NOT SERVED ON THE APPELLANT IN DUE COURSE, HENCE AN APP LICATION FOR OBTAINING THE ITA NO. 88/JP/2018 KALU RAM JAT, JAIPUR VS. ADDL. CIT, JAIPUR 2 CERTIFIED COPY OF THE ORDER WAS MADE TO THE AUTHORI TIES, AND THUS A CERTIFIED TRUE COPY OF THE ORDER WAS ISSUED ON 28.11.2017. T HEREAFTER, THE SECOND APPEAL BEFORE THE TRIBUNAL WAS FILED ON 25.1.2018, WHICH IS THUS FILED WITHIN THE PRESCRIBED TIME LIMIT OF 60 DAYS FROM THE DATE OF ORDER BEING APPEALED IS COMMUNICATED, IN TERMS OF THE PROVISIONS OF SECTION 253(3) OF THE INCOME TAX ACT. IT WAS SUBMITTED THAT THERE WAS THUS NO DELAY IN FILING THE PRESENT APPEAL. IT WAS FURTHER SUBMITTED THAT EVEN WHERE I T IS HELD THAT THERE HAS BEEN A DELAY, THERE WAS NO MALAFIDE OR DELIBERA TE DELAY IN FILING THE PRESENT APPEAL AND IN THE INTEREST OF SUBSTANTIAL J USTICE, THE DELAY IN FILING THE PRESENT APPEAL MAY BE CONDONED AND THE A PPEAL BE ADMITTED FOR ADJUDICATION. IT WAS FURTHER SUBMITTED THAT THE RE IS NO PREJUDICE WHICH WILL BE CAUSED TO THE DEPARTMENT AS THE ASSES SEE HAS ALREADY MOVED AN APPLICATION FOR SETTLEMENT OF PRESENT DISP UTE AND PAYMENT OF TAXES AND WHICH HAS ALSO BEEN ACCEPTED IN-PRINCIPLE BY THE COMPETENT AUTHORITY AND FORM 3 HAS BEEN ISSUED THOUGH WITH A CONDITION THAT THE ORDER FOR CONDONATION OF DELAY MAY BE FILED ALONG W ITH FORM 4. IN SUPPORT, RELIANCE WAS PLACED ON THE HONBLE DELHI H IGH COURTS DECISION IN CASE OF HL MALHOTRA & COMPANY PVT. LTD. VS DCIT, CIRCLE-12, NEW DELHI (ITA NO. 211/2020 & CM APPEALS 32045-32047/20 20 DATED 22 ND DECEMBER, 2020) WHEREIN DELAY OF 498 DAYS IN FILING WAS CONDONED BY THE HONBLE DELHI HIGH COURT AND IT WAS HELD THAT I N ABSENCE OF ANYTHING MALE FIDE OR DELIBERATE DELAY AS A DILATORY TACTIC, THE COURT SHOULD NORMALLY CONDONE THE DELAY AS THE INTENT IS ALWAYS TO PROMOTE SUBSTANTIAL JUSTICE FOLLOWING THE HONBLE SUPREME C OURT DECISIONS IN THE CASE OF COLLECTOR, LAND ACQUISITION, ANANTNAG & ANR . VS MST. KATIJI AND OTHERS (1987) 2 SCC 107 AND N. BALAKRISHNAN VS M. K RISHNAMURTHY 1998 (7) SCC 123. ITA NO. 88/JP/2018 KALU RAM JAT, JAIPUR VS. ADDL. CIT, JAIPUR 3 3. PER CONTRA, THE LD. DR SUBMITTED THAT THERE IS A SUBSTANTIAL DELAY IN FILING THE PRESENT APPEAL BY THE ASSESSEE AND TH E APPLICATION SO FILED BY THE ASSESSEE DOES NOT REFLECT ANY REASONABLE CAU SE ON THE PART OF THE ASSESSEE COMPANY FOR THE DELAY IN FILING THE PR ESENT APPEAL. SHE ACCORDINGLY OPPOSED CONDONING THE DELAY IN FILING T HE PRESENT APPEAL. AT THE SAME TIME, SHE FAIRLY SUBMITTED THAT THE FORM 3 HAS BEEN ISSUED BY THE COMPETENT AUTHORITY ACCEPTING THE ELIGIBILITY O F THE ASSESSEE FOR THE SETTLEMENT OF DISPUTE AS PER PRESCRIBED VSV SCHEME OF SETTLEMENT AND DETERMINING THE AMOUNT OF TAX LIABILITY WHICH HAS T O BE DEPOSITED BY THE ASSESSEE AND ONLY CONDITION WHICH HAS BEEN STATED I S THAT FORM 3 IS ISSUED CONDITIONALLY SUBJECT TO THE APPLICANT OBTAI NING ORDER OF CONDONATION OF DELAY FROM THE RELEVANT APPELLATE AU THORITY. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, IT HAS BE EN STATED ON BEHALF OF THE ASSESSEE THAT THE ORDER SO PASSED BY THE LD CIT (A) HAS NOT BEEN SERVED ON HIM AND THEREAFTER, THE ASSESSEE SOUGHT A CERTIFIED COPY OF THE ORDER SO PASSED WHICH WAS ISSUED ON 28.11.2017 AND THEREAFTER, THE APPEAL WAS FILED BEFORE THE TRIBUNAL ON 25.1.20 18 WHICH IS WELL WITHIN THE LIMITATION PERIOD. THE LIMITATION PERIOD FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS 60 DAYS FROM THE DATE WHEN T HE ORDER BEING APPEALED AGAINST WAS COMMUNICATED TO THE ASSESSEE. THE EMPHASIS THEREFORE IS ON COMMUNICATION OF THE ORDER. IN THE INSTANT CASE, IT HAS BEEN CONTENDED THAT THE ORDER SO PASSED BY THE LD C IT(A) WAS ONLY COMMUNICATED OR SERVED ON THE ASSESSEE BY WAY OF A CERTIFIED COPY ON 28.11.2017 AND NOT EARLIER AND THEREFORE, THE APPEA L SO FILED IS WITHIN THE LIMITATION PERIOD AS SO PRESCRIBED. HOWEVER, O N PERUSAL OF THE CERTIFIED COPY SO OBTAINED BY THE ASSESSEE, WE FIND THAT THERE IS A ITA NO. 88/JP/2018 KALU RAM JAT, JAIPUR VS. ADDL. CIT, JAIPUR 4 ASSERTION BY THE LD CIT(A) THAT THE ORIGINAL ORDER HAS BEEN DISPATCHED THROUGH REGISTERED A.D ON 16.01.2015 AND NOW AS REQ UESTED, A CERTIFIED COPY HAS BEEN PROVIDED TO THE ASSESSEE. THE QUESTI ON IS WHETHER THE SAID ORDER SENT THROUGH REGISTERED A.D HAS BEEN DEL IVERED AT THE GIVEN ADDRESS OR HAS BEEN RETURNED UNDELIVERED AND WHERE THE SAME HAS NOT RETURNED UNSERVED, A PRESUMPTION WILL ARISE THAT TH E SAME HAS BEEN COMMUNICATED TO THE ASSESSEE AT THE TIME OF DISPATC H. THERE IS HOWEVER NO SUFFICIENT MATERIAL ON RECORD AS TO WHET HER THE ORIGINAL ORDER HAS RETURNED BACK UNSERVED BY THE POSTAL DEPA RTMENT. THEREFORE, THE PLEA OF THE ASSESSEE THAT THE ORIGINAL ORDER HA S NOT BEEN SERVED ON HIM CANNOT BE DECIDED AND IS LEFT OPEN IN ABSENCE O F REQUISITE MATERIAL ON RECORD. 5. HAVING SAID THAT, WE FIND THAT AS SOON AS THE AS SESSEE BECAME AWARE OF THE PASSING OF THE AFORESAID ORDER, HE APP LIED FOR A CERTIFIED COPY AND FILED THE PRESENT APPEAL, THERE IS THUS NO CULPABLE NEGLIGENCE OR MALAFIDE ON THE PART OF THE ASSESSEE IN DELAYED FILING OF THE PRESENT APPEAL AND HE DOES NOT STAND TO BENEFIT BY RESORTIN G TO SUCH DELAY MORE SO CONSIDERING THE FACT THAT HE HAS APPLIED FOR SET TLEMENT OF PRESENT DISPUTE AND PAYMENT OF APPROPRIATE TAXES. FURTHER, NO PREJUDICE IS BEING CAUSED TO THE REVENUE WHERE THE PRESENT APPEA L IS ADMITTED AS THE COMPETENT AUTHORITY HAS ACCEPTED THE ASSESSEES PETITION AND GIVEN ITS IN-PRINCIPLE APPROVAL FOR SETTLEMENT OF TAX DIS PUTE AND FORM 3 HAS BEEN ISSUED. THEREFORE, IN THE FACTUAL MATRIX OF T HE PRESENT CASE, WE FIND THAT THERE EXISTS SUFFICIENT AND REASONABLE CA USE FOR CONDONING THE DELAY IN FILING THE PRESENT APPEAL AND AS HELD BY T HE COURTS, WHERE SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS AR E PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. IN THE ITA NO. 88/JP/2018 KALU RAM JAT, JAIPUR VS. ADDL. CIT, JAIPUR 5 INSTANT CASE, THE CAUSE OF SUBSTANTIAL JUSTICE WILL BE SERVED BY ALLOWING THE ASSESSEE TO AVAIL THE BENEFITS OF THE SETTLEMEN T SCHEME TO WHICH THE COMPETENT AUTHORITY HAS ALREADY GIVEN ITS IN-PRINCI PLE APPROVAL. 6. IN LIGHT OF AFORESAID DISCUSSIONS, IN EXERCISE O F POWERS UNDER SECTION 253(5) OF THE ACT, WE HEREBY CONDONE THE DE LAY IN FILING THE PRESENT APPEAL AS WE ARE SATISFIED THAT THERE WAS S UFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PRESCRIBED TIM E. 7. SINCE THE ASSESSEE HAS APPLIED FOR WITHDRAWAL OF THIS APPEAL ON THE GROUND THAT THE ASSESSEE HAS OPTED FOR VIVAD SE VISHWAS SCHEME AND THE COMPETENT AUTHORITY HAS ALREADY ISSUED FORM NO. 3, THEREFORE, WE PERMIT THE ASSESSEE TO WITHDRAW THE PRESENT APPE AL. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 15/03/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/03/2021. GANESH KUMAR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- KALU RAM JAT, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ADDL. CIT, RANGE-7, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. ITA NO. 88/JP/2018 KALU RAM JAT, JAIPUR VS. ADDL. CIT, JAIPUR 6 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 88/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR