M/s Sai Engineering Foundation, Shimla V. CIT, Shimla

ITA 907/CHANDI/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90205 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-05-2015
• Assessment Year: misc
• Appeal Filed On: 05-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR AMA RVEER SINGH
• Assessee Lawyers: ATUL GANDHI
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 12A; 12AA; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 907/CHD/2012 (ORDER UNDER SECTION 12AA) M/S SAI ENGINEERING FOUNDATION, VS THE CIT, SAI BHAWAN, SHIMLA. SHIMLA. PAN: AAAAS5757P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ATUL GANDHI RESPONDENT BY : DR. AMARVEER SINGH DATE OF HEARING : 22.06.2015 DATE OF PRONOUNCEMENT : 23.06.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME TAX, SHIMLA DATED 17.02. 2010 UNDER SECTION 12AA(3) OF THE INCOME TAX ACT. 2. THIS APPEAL WAS EARLIER DISMISSED IN DEFAULT WHI CH WAS RESTORED WHILE ALLOWING MISCELLANEOUS APPLICATION O F THE ASSESSEE. THEREFORE, APPEAL WAS RE-FIXED FOR HEARIN G ON MERITS. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE SOCIETY WAS GRANTED REGISTRATION UNDER SECTION 12A OF THE A CT VIDE ORDER DATED 23.03.1998. THE LD. COMMISSIONER OF IN COME TAX NOTICED FROM THE REGULAR ASSESSMENTS THAT ASSES SEE WAS MAINLY ENGAGED IN CARRYING OUT COMMERCIAL ACTIVITIE S. THE 2 LD. COMMISSIONER OF INCOME TAX, AFTER GIVING OPPORT UNITY OF BEING HEARD TO THE ASSESSEE HELD THAT ASSESSEE IS P RE- DOMINANTLY ENGAGED IN COMMERCIAL ACTIVITIES ON A VE RY LARGE SCALE AND ACCORDINGLY, WITHDRAWN THE REGISTRATION G RANTED UNDER SECTION 12AA OF THE ACT W.E.F. ASSESSMENT YEA R 2009-10. 4. THE ASSESSEE MENTIONED IN COLUMN NO. 9 OF THE AP PEAL PAPERS THAT THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IS DATED 24.02.2010. HOWEVER, THE APPEAL I S FILED IN THE OFFICE OF THE TRIBUNAL ON 05.09.2012. THE OFFI CE OF THE TRIBUNAL, THEREFORE, NOTED THAT APPEAL IS TIME BARR ED BY 864 DAYS. 5. THE ASSESSEE FILED APPLICATION FOR CONDONATION O F DELAY EXPLAINING THEREIN THAT INADVERTENTLY DUE TO NEGLIG ENCE OF THE STAFF OF THEIR AUDITOR, THE APPEAL WAS NOT FILE D BEFORE THE TRIBUNAL. THE AFFIDAVIT OF SHRI ANIL K. SOOD, CHART ERED ACCOUNTANT IS FILED IN SUPPORT OF THE APPLICATION I N WHICH IN PARA 2 & 3 IT IS EXPLAINED AS UNDER : 2 . THAT MY CLIENT SAI ENGINEERING FOUNDATION HAD GIVEN INSTRUCTION TO PREFER AN APPEAL BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF THE CIT. 3. THAT INADVERTENTLY DUE TO NEGLIGENCE OF ONE OF MY STAFF THE APPEAL WAS NOT FILED WITHIN THE PRESCRIBED TIME LIMIT. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACTS STATED IN THE AFFIDAVIT AND SUBMITTED THAT DUE TO N EGLIGENCE OF THE STAFF OF THE CHARTERED ACCOUNTANT, APPEAL CO ULD NOT BE FILED ON TIME. 3 7. ON THE OTHER HAND, LD. DR SUBMITTED THAT ASSESSE E HAS FAILED TO EXPLAIN ANY REASONABLE CAUSE FOR FAILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. THEREFORE, DELAY IN FILING THE APPEAL MAY NOT BE CONDONED. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT APPEAL IS TIME BARRED BY 864 DAYS BEFO RE THE TRIBUNAL. THE ASSESSEE FILED AFFIDAVIT OF SHRI ANI L K. SOOD, CHARTERED ACCOUNTANT IN WHICH ASSESSEE ADMITTED THA T THE ASSESSEE HAD GIVEN INSTRUCTIONS TO FILE THE APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER OF LD. CIT. HO WEVER, IT IS STATED THAT INADVERTENTLY, DUE TO NEGLIGENCE OF ONE OF THE STAFF OF THE CHARTERED ACCOUNTANT, APPEAL WAS NOT F ILED WITHIN THE PRESCRIBED TIME LIMIT. IT IS A VERY VAG UE STATEMENT IN THE AFFIDAVIT AND WOULD NOT DISCLOSE A NY SUFFICIENT OR GOOD REASONS FOR CONDONATION OF DELAY . THE APPEAL IS TO BE FILED BY THE CHARTERED ACCOUNTANT A ND NOT BY THE STAFF. FURTHER, THE COPY OF THE CHALLAN IS FIL ED FOR THE PURPOSE OF FILING OF THE APPEAL IN WHICH THE DATE O F PAYING TRIBUNAL FEES OF RS. 500/- IS MENTIONED AS 05.09.20 12. THE PAYMENT OF FEES OF THE TRIBUNAL FOR THE PURPOSE OF FILING THE APPEAL ITSELF IS SAME DATE ON WHICH THE APPEAL IS P RESENTED IN THE OFFICE OF THE TRIBUNAL ON 05.09.2012. THUS, EVEN THE VAGUE STATEMENT GIVEN IN THE AFFIDAVIT OF THE CHART ERED ACCOUNTANT IS NOT SUPPORTED BY ANY COGENT AND PROPE R EVIDENCE. NOTHING IS EXPLAINED AS TO WHY THE APPEA L WAS NOT PREFERRED BEFORE THE TRIBUNAL WITHIN THE PERIOD OF LIMITATION. 9. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. 4 IN THE CASE OF HIND DEVELOPMENT CORPN. V. ITO [1979] 118 ITR 873, THE CALCUTTA HIGH COURT HELD THAT A TRIBUN AL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE CASE OF VED ABAI ALIAS VIJAYANANTABAI BABURAO PATIL V. SHANTARAM BABURAO P ATIL [2002] 253 ITR 798 (SC), WHERE IT WAS HELD THAT WHI LE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITA TION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NO F ILING THE APPEAL WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETW EEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVED THAT WHE REAS 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 PRES ENT CASE DELAY IS NOT OF A FEW DAYS BUT OF 864 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 773, THE HON'BLE PUNJAB & HARYANA HIGH COURT HAS HELD OBSERV ED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF L IMITATION 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 THAT PROVISIONS RELATING T O THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CASE DEL AY FOR FILING THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. 5 IN THE CASE OF ASSTT. CITV. TAGGAS INDUSTRIES DEVEL OPMENT 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 SUFFICI ENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, WE HOL D THAT ASSESSEE FAILED TO EXPLAIN DELAY IN FILING THE APPE ALS WAS DUE TO SUFFICIENT CAUSE. 10. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW ASSESSEE FAILED TO EXPLAIN DELAY IN FILING APPEAL W AS DUE TO SUFFICIENT CAUSE, THEREFORE, DELAY SHOULD NOT BE CO NDONED IN THE MATTER. WE, ACCORDINGLY, REJECT THE REQUEST FO R CONDONATION OF DELAY IN FILING THE APPEAL AND TREAT THE APPEAL TO BE TIME BARRED AND IS ACCORDINGLY, DISMIS SED IN- LIMINE AS TIME BARRED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JUNE,2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD JUNE,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH