Abdul Rahiman Thirikode Chellan, Palakkad V. ITO Ward 5, Palakkad

ITA 90/COCH/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1903 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-05-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 24-01-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PADMANATHAN K.V.
• Keywords: Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Sanjay Arora, AM & Shri Soundararajan K., JM ITA No. 90/Coch/2023 : Asst.Year 2017-2018 Abdul Rahiman Thirikoide Chellan Maruthoni House, Naduvathapara Post, Peringottukurussi, Palakkad 678 574. [PAN:BEQPC8956Q] vs. The Income Tax Officer Ward 5 Palakkad. (Appellant) (Respondent) Appellant by: Sri. Padmanathan K.V., Advocate Respondent by: Smt.J.M.Jamuna Devi, Sr.DR Date of Hearing: 08.05.2024 Date of Pronouncement: 31.05.2024 O R D E R Per Sanjay Arora, AM: This is an Appeal by the Assessee agitating the Order dated 14.12.2021 by the Commissioner of Income-tax (Appeals), Income Tax Department [CIT(A)], dismissing the assessee’s appeal contesting his assessment under section 143(3) of the Income-tax Act, 1961 (the Act) for assessment year (AY) 2017-18 vide order dated 12.11.2019. 2.1 At the outset, Sri. Padmanathan, the learned counsel for the assessee, would submit that the 346 day delay in filing the appeal is only apparently so. This is as, as against the due date of filing the appeal on 13.02.2022, the same falling within the time period: from 15.03.2020 to 28.02.2022, to be excluded in reckoning time limitation in terms of the Suo Motu WP (C) No.3/2022 dated 28.02.2022 by the Hon'ble Apex Court, and a further period of 90 days, i.e., up to 29.05.2022, the delay to be considered is only subsequent to 29.5.2022. The appeal having been filed on ITA No.90 /Coch/2023 (AY 2017-18) Abdul Rahiman Thirikoide Chellan v. ITO 2 | P a g e 24.01.2023 (actually 25.01.2023), the same works to 240 (241) days. The reason for the same, he would continue, taking us through the sworn affidavit dated 24.01.2023 accompanying the appeal, is that the impugned order was not received either per email or by post. It was only on receipt of show cause notice dated 28.10.2022, seeking objection to the proposed penalty inasmuch as the assessee’s appeal against his assessment had been since disposed on 14.12.2021, on 28.10.2022, that the fact of the appeal having been disposed of came to the assessee’s knowledge, whereat he contacted his counsel (Sri Padmanathan) and filed the appeal. He could, however, not explain us as to why, even so, the appeal being, as on 28.10.2022, already delayed by three months, it took the assessee another three months, i.e., even exceeding the normal time limit of 60 days, to file the appeal, even as one would have, on the contrary, expected the assessee to be, considering the period lapsed, prompt. The Revenue was in any case asked by the Bench to file it’s reply in the matter, supported by any material, and the assessee to file Form 35, i.e., the memo of appeal before the first appellate authority, which had been omitted to be alongwith with his appeal, allowing time to the parties for the same. The same has been since complied with. The Revenue has filed a system generated report on 24.04.2024, highlighting the relevant fields. Per the said report, the impugned order u/s.250 dated 14.12.2021 had been served on 14.12.2021 per email at the following email addresses: [e-mail] [e-mail] ABDUL RAHIMAN THIRIKKOD CHELLAN Further, hearing notice dated 20.01.2021 had been, prior thereto, similarly served at the said addresses. Copy of the same, also provided to the assessee, Sh. Padmanathan sought time on 19.04.2024 for filing the reply, filing an affidavit dated 27.04.2024 by Sri. Venkitaraman, CA, on 30.04.2024. Per the same, Sri.Venkitaraman, admits to have filed the appeal before the ld. CIT(A), also furnishing email id [e-mail], as also his office mail id: [e-mail], at ITA No.90 /Coch/2023 (AY 2017-18) Abdul Rahiman Thirikoide Chellan v. ITO 3 | P a g e which notices may be communicated to the assessee. However, no notice had been received on 14.11.2021, and toward which the screenshot (system generated), under the sections inbox, thrash and junk, for the period 10.11.2021 to 15.11.2021, was enclosed to exhibit that no mail had been received at his email address provided for communication purposes. It was upon this brought to the notice of Sri Padmanathan that the date of communication of the impugned order is 14.12.2021, and not 14.11.2021, as stated in the affidavit, which is thus per se invalid. Besides, the report furnished by the Revenue, wherein both the “status” and “date of service” stand duly marked, being specific evidence, system generated, would be required to be rebutted with a specific evidence, so that an affidavit, not called for by the Bench, may not by itself be regarded as an evidence or, in any case, as in effective rebuttal. 2.2 On 06.05.2024, to which date the hearing was finally adjourned, the proceedings up to that date were revisited, and the parties called upon to submit their final replies, with materials, on 08/5/2024. No fresh material stood brought on record by Sri Padmanathan, while Smt. Devi, the ld. Sr. DR, reiterated that the Revenue had since verified that no communication had been returned unserved, and the status and date of service in the report are correctly stated. The hearing was closed at this stage. 3. We have heard the parties, and perused the material on record. There is, to begin with, without doubt, no explanation for the 90 day period, i.e., even in excess of the 60 days statutorily allowed for filing the appeal, taken by the assessee even after the knowledge, on 28.10.2022, of the appeal being already delayed by months. Coming to the aspect of the period up to 28.10.2022, the Revenue’s report, uncontroverted, disproves the assessee’s affidavits dated 24.01.2023 and 18.04.2024. Per the latter, the assessee, in contradistinction to the former, avers of the date of his knowledge of the passing of the assessment for the relevant year as 24/11/2022, this time on the basis of the communication of the penalty orders u/ss. 270A/271AAC. The same, not called for, is incomprehensible and reprehensible. Once the assessee ITA No.90 /Coch/2023 (AY 2017-18) Abdul Rahiman Thirikoide Chellan v. ITO 4 | P a g e admittedly became aware of his assessment for the relevant year on 28/10/2022, how can the said date shift to another on the basis of another incident, again informing him the date of the assessment. No reason for the revised affidavit, which also bears no reference to the earlier, has been furnished. Much less called for by the Bench, the second affidavit, as it appears to us, stands filed to meet the observation by the Bench as to the assessee, rather than acting with alacrity in view of his appeal being already delayed, takes more than the regular time. The affidavit, clearly false, and filed on the sly, without bringing the changed date to the notice of the Bench, deserves highest condemnation. Per the same, the assessee, in contradistinction to the affidavit dated 24.01.2023, states of 24.11.2022 as a date on which he came to know of the impugned order having been passed, i.e., on receipt of the penalty orders u/ss.270A and 271AAC. The assessee, in doing so, violates the provisions of, inter alia, Oaths Act, and also commits perjury on two counts, i.e., as to the date of coming to his knowledge, and that of no email had been received conveying the impugned order. Sri. Padmanathan has also violated the code of conduct under the Advocate’s Act. An affidavit is generally furnished at the instance of the Court where facts in the personal knowledge of the deponent cannot be otherwise proved, and the deponent is, before acceptance of his averments therein, liable to be cross-examined on his deposition. This has been abused by Sri Padmanathan to mislead the Court with untruth. Rather, on the difference in date, i.e., 14.11.2021, instead of 14.12.2021, being brought to his notice, he clarified it to be a typing error and, further, on being informed that it could not be so inasmuch as the affidavit was supported by a system report for the period 10.11.2021 to 15.11.2021, annexed alongwith, he, changing stance once again, would submit that he be allowed time to procure an affidavit with reference to 14.12.2021. Upon this, he was unable to answer as to how he could state so without consulting the record. Time was allowed, making it clear that he would be required to, instead, and in view of the definite evidence furnished by the Revenue, produce some evidence ITA No.90 /Coch/2023 (AY 2017-18) Abdul Rahiman Thirikoide Chellan v. ITO 5 | P a g e and, further, the deponent liable to be questioned. Needless to add, no material or deposition was advanced on the next date of hearing, whereat it was closed. 4. The affidavits, an explanation for condonation of delay, being found false, there is, thus, no explanation for the delay. No reasonable cause, thus, attends the delay, meriting condonation. We decide accordingly. 5. In the result, the appeal filed by the assessee is dismissed. Order pronounced on May 31, 2024 under Rule 34 of The Income Tax (Appellate Tribunal) Rules, 1963 Sd/- Sd/- (Soundararajan K.) Judicial Member (Sanjay Arora) Accountant Member Cochin, Dated: May 31, 2024 Copy to: 1. The Appellant By Order 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin Assistant Registrar 5. Guard File ITAT, Cochin