Kishore Nanwani, Pondicherry V. ITO Ward I(1), Pondicherry

ITA 906/CHNY/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5108 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 14-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause; Competent authority; Condonation of delay; Set aside
• Section: 271(1)(c); 144

Judgement Text

आयकर अपीलीय अिधकरण, ‘डी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos.: 906 & 907/CHNY/2018 िनधाᭅरण वषᭅ /Assessment Years:2008-09 & 2009-10 Shri Kishore Nanwani, No.44-46, J.N. Street, Pondicherry – 605 001. PAN: AEKPN 5787R v. The Income Tax Officer, Ward -I(1), Pondicherry. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri S. Sridhar, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri G. Johnson, Addl. CIT स ु नवाई कȧ तारȣख/Date of Hearing : 31.03.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 06.04.2022 आदेश /O R D E R PER MAHAVIR SINGH, VP: These appeals by assessee are arising out of the common order of the learned Commissioner of Income Tax (Appeals)-VI, Chennai in ITA No.248 & 543/13-14/Penalty/A-VI dated 30.09.2014. The assessments were framed by the ITO, Ward I(1), Pondicherry for the assessment years 2008-09 & 2009-10 u/s.143(3) & 144 of the Income Tax Act, 1961 (hereinafter ‘the Act’) vide orders dated 30.12.2010 & 2 ITA Nos.906 & 907/Chny/2018 30.12.2011 respectively. The penalties under dispute was levied by the CIT(A)-VI, Chennai for both the assessment years 2008-09 & 2009-10 vide order dated 30.09.2014. 2. At the outset, it is noticed that these appeals filed by the assessee, against penalty orders of CIT(A)-VI, Chennai for both the assessment years 2008-09 & 2009-10 are filed belatedly by 1202 days and the assessee has filed condonation petition in both the years, identically worded affidavits and petitions. The ld.counsel for the assessee before us relied on the condonation petition filed before us as well as the affidavit of the assessee. Apart from affidavit, the ld.counsel for the assessee has not given any reason or not made any argument. The ld.counsel for the assessee however filed copy of decision of Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF) vs. ACIT, Civil Appeal Nos.6671-76 of 2010 with Nos.6677 – 90 of 2010. 3. On the other hand, the ld. Senior DR, vehemently argued opposing the condonation of delay and stated that this is inordinate delay and there is no reason stated in the affidavit except a mere assertion that the order of CIT(A) was misplaced and he pointed out that even the assessee in the affidavit mentioned that he faced 3 ITA Nos.906 & 907/Chny/2018 complex problems from all fronts and could not given any reason i.e., sufficient reason for condonation of delay of this inordinate delay. 4. We have heard rival contentions and gone through the facts and circumstances of the case. The assessee has filed identically worded petitions for condonation of delay and the relevant petition filed by the assessee’s counsel reads as under:- The Assistant Registrar, Income Tax Appellate Tribunal, Rajaji Bhavan, Besant Nagar, Chennai – 600 090. August 14, 2019 Dear Sir, Sub : Submission of Condonation of delay petitions Ref : Mr. Kishore Nanwani – ITA.Nos.906 and 907/2018. Please find herein enclosed TWO petitions for condonation of delay in triplicate with a request to condone the delay of 1202 days in filing the appeal, relating to the assessment years 2008-09 and 2009-10. Kindly acknowledge receipt. Please note that the above appeals posted for hearing before the “D” Bench of the Income Tax Appellate Tribunal on 21-10-2019. Thanking you, Yours faithfully, Sd/- S. SRIDHAR 4 ITA Nos.906 & 907/Chny/2018 Encl: Condonation of delay petition in triplicane for TWO appeals. We noticed that the assessee has also filed affidavit and averments of the affidavit reads as under:- I am the Appellant/Petitioner herein and am well acquainted with the facts relating to the belated filing of the above appeal relating to the assessment year 2009-10 before the Jurisdictional Bench of the Income Tax Appellate Tribunal competent to swear to this affidavit. I state that the appeal challenging the common order of the CIT(Appeals) dated 30.09.2014 in imposing penalty u/s 271(1)(c) of the Act was filed belatedly on 15.03.2018 and the delay in filing the belated appeal was neither willful nor deliberate but due to the circumstances beyond my control, justifying my plea for the admission of the appeal for adjudication of the issues on merits relating to the correctness of imposing penalty u/s 271(1)(c) of the Act. I state that the delay of 1202 days in fling the appeal was due to the misplacement of the order and I state that the said order was received and misplaced while I faced complex problems from all fronts. I state that the action taken by the TRO in bringing the residential property for auction in the month of March 2018 triggered the process of scrutiny of my income tax records and inasmuch as I state that the appointment of new Chartered Accountant who conducted due diligence of my income tax file in recovering the fact of non filing of the appeal against the common order of the CIT(Appeals) dated 30.09.2014 in imposing penalty u/s 271(1)(c) of the Act. I state that immediately steps were taken for filing the appeal before the Jurisdictional Bench of the Income Tax Appellate Tribunal through the counsel on record and the appeal under consideration was filed belatedly on 15.03.2018 for which the plea of condonation of delay in filing the said appeal is substantiated through this affidavit. I state that the mistake committed due to my family problems and drastic complications faced in the business/profession pursued by 5 ITA Nos.906 & 907/Chny/2018 me by not appointing a professional for challenging unreasonable levy of penalty u/s 271(1)(c) of the Act for the assessment year under consideration should be reckoned as bonafide explanation and acceptable as reasonable cause for admission of the appeal. In such circumstances, the delay in filing the appeal relating to assessment year 2008-09 may be condoned for adjudication of the issues on merits and thus render justice. We noted that in the affidavit, the assessee has made first assertion that the CIT(A) order was misplaced and he was facing complex problems from all fronts but nothing was brought to our records. Admittedly, the common order of CIT(A) for both the assessment years is dated 30.09.2014 which was received by the assessee, as per Form 36 on 30.09.2014. But, appeal was filed only on 15.03.2018. There is no dispute that there is delay of 1202 days in filing of appeal. 5. Now, the case law cited by the ld.counsel by the Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF), supra, the Hon’ble Supreme Court has condoned the delay of 1754 days by its sufficient cause shown by the appellant in that case where appellants assertion was that they had no knowledge about passing of order on 29.12.2003 until they were confronted with the auction notice in June 2008 issued by the competent authority. On this assertion, the respondent could not prove or could not refute the 6 ITA Nos.906 & 907/Chny/2018 assertion, hence the Hon’ble Supreme court condoned the delay by observing as under:- “1. Heard learned counsel for the parties. These appeals take exception to the common order dated 13.02.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench in Senior Bhosale Estate (HUF) v. CIT, Senior Bhosale Estate (HUF) v. CWT, whereby it had dismissed the said civil application(s) praying for condonation of delay in filing the concerned appeal(s) against the common order dated 29.12.2003 passed by the Income Tax Appellate Authority being barred by 1754 days. 2. The appellant(s) had asserted that they had no knowledge about passing of order dated 29.12.2003, until they were confronted with the auction notices in June 2008 issued by the competent authority. 3. Soon thereafter, the appellant(s) filed appeal(s) accompanied by the subject application(s) on 19.07.2008. Notably, the respondent(s) did not expressly refute the stand taken by the appellant(s) – that they had no knowledge about passing of order dated 29.12.2003 until June, 2008. Unless that fact was to be refuted, the question of disbelieving the stand taken by the appellant(s) on affidavit, cannot arise and for which reason, the High Court should have shown indulgence to the appellant(s) by condoning the delay in filing the concerned appeal(s). This aspect has been glossed over by the High Court. 4. Accordingly, these appeals are allowed. We set aside the impugned order of the High Court and relegate the parties before the High Court, by allowing the civil application(s) filed by the appellant(s) for condonation of delay in filing the appeals concerned, 5. As a result, the concerned appeal(s) concerned shall stand restored to the file of the High Court and be proceeded in accordance with law. Pending applications, if any, stand disposed of. 6. We have gone through the reasons stated in affidavit that the common order of CIT(A) was received by assessee on 30.09.2014 and it got misplaced. But nothing was produced before us how the 7 ITA Nos.906 & 907/Chny/2018 order was traced by assessee and that also a long delay of 1202 days. The assessee was very much aware that the CIT(A) has passed the order and received the order on 30.09.2014 but he waited till the action taken by TRO in bringing the residential property for auction in the month of March, 2018 and by virtue of which, he filed the appeals. In our view, the reason stated by assessee is neither sufficient nor reasonable. Even this reason stated is not supported by any evidence. Hence, we are of the view that the assessee is unable to explain the delay with any sufficient cause. Hence, we are not inclined to condone the delay and accordingly, appeals are not admitted. 7. In the result, both the appeals filed by the assessee are dismissed as un-admitted. Order pronounced in the court on 6 th April, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 6 th April, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.