Subodh Parkash, Yamunanagar V. JCIT, Yamunanagar

ITA 898/CHANDI/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9183 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 13-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Period of limitation; Condonation of delay; Reason to believe
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SH.MAHARSHI PRASHANT KUMAR, ACCOUNTANT MEMBER ITA NO. 898/CHD/2015 ASSESSMENT YEAR: 2009-10 SHRI SUBODH PARKASH, VS THE JCIT, PROP. AASTHA TRADING CO., YAMUNA NAGAR RANGE, OLD O-3, INDUSTRIAL ARERA, YAMUNA NAGAR. SCF 38, OPPOSITE TRAFFIC PARK, SAROJINI COLONY EXTN., PART-II, YAMUNA NAGAR. PAN: ABBPP0664K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RUCHESH SINHA RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 09.08.2016 DATE OF PRONOUNCEMENT : 12.08.2016 O R D E R PER BHAVNESH SAINI, JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS), PANCHKULA DATED 15.10.2012 FOR ASSESSMENT YEAR 2009-10 CHALLENGING THE REJECTION OF THE BOOKS OF ACCOUNT AND APPLYING HIGH ER NET PROFIT RATE. 2. ACCORDING TO FORM NO. 36, THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IS 2 MENTIONED AS 30.11.2012. HOWEVER, THE APPEAL IS FI LED BEFORE THE TRIBUNAL ON 15.12.2015. THUS, THE APPEA L OF THE ASSESSEE IS TIME BARRED BY 1050 DAYS. 3. THE ASSESSEE FILED APPLICATION FOR CONDONATION O F DELAY IN WHICH IT IS EXPLAINED THAT THE ORDER OF TH E LD. CIT(APPEALS) WAS RECEIVED ON 30.11.2012 AND ASSESSE E REQUESTED HIS COUNSEL TO FILE APPEAL BEFORE THE TRI BUNAL BUT SINCE THERE WAS A CONFUSION BETWEEN THE ASSESSE E AND HIS COUNSEL AND DUE TO CERTAIN LEGAL COMPLICATI ONS IN THE FAMILY, THE APPEAL COULD NOT BE FILED ON TIM E. THE ASSESSEE CHANGED THE EARLIER COUNSEL AND NEW COUNSE L INFORMED THE ASSESSEE THAT SAID APPEAL HAS NOT BEEN FILED. THE ASSESSEE FILED AFFIDAVIT IN SUPPORT OF THE SAME, FURTHER REVISED AFFIDAVIT OF THE ASSESSEE IS ALSO FILED. 3(I) THE LD. COUNSEL FOR THE ASSESSEE REFERRING T O THE APPLICATION OF CONDONATION OF DELAY AND AFFIDAVIT O F THE ASSESSEE SUBMITTED THAT MARRIAGE OF THE DAUGHTER OF THE ASSESSEE WAS SOLEMNIZED ON 29.11.2010 AND SOON AFTE R HER MARRIAGE, THERE WAS A TROUBLE IN HER MARRIAGE, DUE TO WHICH ASSESSEE USED TO TRAVEL FREQUENTLY BETWEEN FARIDABAD AND YAMUNA NAGAR DURING THE PERIOD OF DEL AY IN FILING THE APPEAL. THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT DAUGHTER OF THE ASSESSEE WAS PHYSICA LLY ABUSED AND ULTIMATELY FIR WAS REGISTERED AGAINST HE R IN- LAWS. COPY OF THE FIR AND MEDICAL CERTIFICATE ARE FILED IN THE PAPER BOOK. THE LD. COUNSEL FOR THE ASSESSE E, 3 THEREFORE, SUBMITTED THAT DUE TO FAMILY DISPUTE WIT H THE DAUGHTER OF THE ASSESSEE, THE APPEAL COULD NOT BE F ILED ON TIME AND PRAYED THAT DELAY IN FILING APPEAL MAY BE CONDONED. 4. ON THE OTHER HAND, LD. DR STRONGLY OBJECTED TO T HE REQUEST OF THE ASSESSEE FOR CONDONATION OF DELAY AN D SUBMITTED THAT ASSESSEE HAS FAILED TO EXPLAIN ANY SUFFICIENT CAUSE IN FILING THE APPEAL BELATEDLY THE REFORE, DELAY MAY NOT BE CONDONED AND APPEAL OF THE ASSESSE E MAY BE DISMISSED BEING TIME BARRED. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON THE POIN T OF LIMITATION. IN THIS CASE THE ASSESSMENT ORDER U NDER SECTION 143(3) OF THE ACT HAS BEEN PASSED ON 29.12.2011. THE ASSESSEE PREFERRED APPEAL BEFORE T HE LD. CIT(APPEALS) ON 24.01.2012 AND THE LD. CIT(APPE ALS) DECIDED THE APPEAL OF THE ASSESSEE ON 15.10.2012. THE DATE OF MARRIAGE OF THE DAUGHTER OF THE ASSESSEE ON 29.11.2010 THUS, HAS NO RELEVANCE AND CO-RELATION W ITH THE ABOVE DATES. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, THE DATE OF MARRIAGE OF THE DAUGHTER OF T HE ASSESSEE IS 29.11.2010 AND SOON AFTER HER MARRIAGE, THERE WAS A TROUBLE IN HER FAMILY MATTERS. WHEN TH E MARRIAGE OF THE DAUGHTER OF THE ASSESSEE WAS SOLEMN IZED PRIOR TO FILING OF THE APPEAL BEFORE LD. CIT(APPEAL S) AND ACCORDING TO THE VERSION OF THE ASSESSEE, THE MATRIMONIAL DISCORD STARTED SOON AFTER MARRIAGE, SU CH REASON WAS ALSO THERE WITH THE ASSESSEE AT THE TIME OF 4 FILING OF THE APPEAL BEFORE LD. CIT(APPEALS), BECAU SE THE ASSESSEE FILED APPEAL BEFORE LD. CIT(APPEALS) ON 24.01.2012 THEREFORE, THE DISPUTE IN THE FAMILY OF DAUGHTER OF THE ASSESSEE HAS NO RELEVANCE WITH THE DELAY IN FILING THE APPEAL BEFORE TRIBUNAL. THE ASSESSEE SUCCESSFULLY FILED APPEAL BEFORE LD. CIT(APPEALS) O N 24.01.2012 CHALLENGING THE ASSESSMENT ORDER AND ALS O PROSECUTED APPEAL BEFORE LD. CIT(APPEALS) DURING TH E SAME PERIOD AND THE LD. CIT(APPEALS) DECIDED THE AP PEAL OF THE ASSESSEE ON 15.10.2012. THEREFORE, PHYSICAL ABUSE OF DAUGHTER OF THE ASSESSEE AND MARITAL DISCO RD AND ULTIMATELY REGISTRATION OF FIR IN MATRIMONIAL M ATTER HAS NO RELEVANCE AND CONCERN WHAT-SO-EVER WITH THE LITIGATION OF THE ASSESSEE IN TAX MATTER. WHEN ASS ESSEE COULD FILE THE APPEAL BEFORE LD. CIT(APPEALS) HAVIN G SAME REASON EARLIER, THERE WAS NO REASON TO BELIEVE THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT F ILING THE APPEAL BEFORE THE TRIBUNAL WITHIN THE PERIOD OF LIMITATION. FURTHER, IN THE APPLICATION FOR CONDON ATION OF DELAY THE ASSESSEE SUBMITTED THAT WHEN IMPUGNED ORDER WAS RECEIVED ON 30.11.2012, ASSESSEE HAD REQUESTED HIS COUNSEL TO FILE THE APPEAL BEFORE TRI BUNAL BUT THE COUNSEL DID NOT FILE THE APPEAL DUE TO SOME CONFUSION. IT WOULD, THEREFORE, CLEARLY PROVE THAT ASSESSEE WAS AWARE OF THE FACT THAT AFTER RECEIPT O F THE IMPUGNED ORDER, ASSESSEE WAS REQUIRED TO FILE APPEA L BEFORE THE TRIBUNAL WITHIN LIMITATION SO AS TO CHAL LENGE THE REJECTION OF THE BOOKS OF ACCOUNT AND APPLICATI ON OF 5 HIGHER NP RATE IN APPEAL BEFORE THE TRIBUNAL. CONTRADICTORY STAND IS TAKEN IN APPLICATION FOR CONDONATION OF DELAY. THEREFORE, THERE WAS NO REAS ON TO BELIEVE THAT ASSESSEE WAS LATER ON PREVENTED BY ANY SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE T HE TRIBUNAL WITHIN THE PERIOD OF LIMITATION. THUS, TH E EXPLANATION GIVEN BY THE ASSESSEE DOES NOT INSPIRE CONFIDENCE AND WOULD NOT DISCLOSE ANY SUFFICIENT AN D GOOD REASON FOR EXPLAINING THE DELAY IN FILING APPE AL BEFORE THE TRIBUNAL. 6. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FI LING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. V. ITO[1979] 118 ITR 873, THE CALCUTTA HIGH COURT HELD THAT A 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 EXERCIS ING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT, 1 963, 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 M ADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVE D THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDI CE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A 6 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 1050 DAYS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLANATION/REASON FOR THE DELA Y. IN THE CASE OF CIT V. RAM MOHAN KABRA [2002] 257 ITR 7 73, THE HON'BLE PUNJAB & HARYANA HIGH COURT HAS HELD OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PE RIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SUCH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW T HAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMI TATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CASE DELAY FOR FILING THE APP EAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE C ASE OF ASSTT. CIT V. TAGGAS INDUSTRIES DEVELOPMENT LTD. [2 002] 80 ITD 21 (CAL.), TRIBUNAL, CALCUTTA BENCH, CALCUTT A, DID NOT CONDONE THE DELAY FOR FILING THE APPEAL LAT E BY 13 DAYS BECAUSE THE DELAY WAS NOT DUE TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, WE HOL D THAT ASSESSEE FAILED TO EXPLAIN DELAY IN FILING THE APPEALS WAS DUE TO SUFFICIENT CAUSE. 7. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THE ASSESSEE FAILED TO EXPLAIN THE DELAY IN FI LING APPEAL WAS DUE TO SUFFICIENT CAUSE THEREFORE, APPEA L OF THE ASSESSEE SHALL HAVE TO BE DISMISSED BEING TIME 7 BARRED. THE APPLICATION FOR CONDONATION OF DELAY I S ACCORDINGLY, DISMISSED. RESULTANTLY, APPEAL OF THE ASSESSEE IS TREATED AS TIME BARRED AND IS ACCORDING LY, DISMISSED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED BEING TIME BARRED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( PRASHANT MAHARSHI) ( BH AVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH AUGUST,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD