Smt. Ranjana Srivastava, Rajpura V. ITO, Rajpura

ITA 920/CHANDI/2011

• Counselvise Citation: 92021514 RSA 2011
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 19-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A K JINDAL
• Keywords: Period of limitation; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMD CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI D.K.SRIVASTAVA, ACCOUNTANT MEMBER ITA NO. 920/CHD/2011 ASSESSMENT YEAR: 2007-08 SMT. RANJANA SRIVASTAVA, VS THE ITO, WARD, PROP M/S ABHISHEK SALES CORPN, RAJPURA RAJPURA PAN NO. AKBPS7955D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. JINDAL RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 23.11.2011 DATE OF PRONOUNCEMENT : 25.11.2011 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), PATIALA DATED 31.7.2011 RELATING TO ASSESSM ENT YEAR 2007-08. 2. IN THIS APPEAL, THE ASSESSEE HAS TAKEN THE FOLLO WING GROUNDS:- 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN CONDONING T HE DELAY IN FILING THE APPEAL UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND THUS TREATING THE APP EAL AS NON-EST. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN NOT ADJU DICATING THE FOLLOWING GROUNDS OF APPEAL ON MERITS:- A) THAT THE LD. A.A. IS NOT JUSTIFIED IN MAKING AN ADDITION OF RS. 57,187/- ON ACCOUNT OF INTEREST ON 2 UNSECURED LOANS NOT RECORDED IN THE BOOKS OF ACCOUNT WITHOUT BRINGING ANY MATERIAL ON RECORD TO PROVE THAT THE PAYMENT HAS ACTUALLY BEEN MADE. B) THAT THE LD. A.A. IS NOT JUSTIFIED IN MAKING A DISALLOWANCE OF RS. 18,188/- OUT OF INTEREST EXPENDITURE ON THE GROUND THAT THE INTEREST FREE LOAN AMOUNTING TO RS. 1,51,566/- HAS BEEN ADVANCED TO SHRI SANJAY SRIVASTVA COMPLETELY IGNORING THE FACT THAT THE ASSESSEE HAS RAISED UNSECURED LOAN ON WHICH NO INTEREST HAS BEEN PAID. C) THAT THE LD. A.A. IS NOT JUSTIFIED IN MAKING AN ADDITION OF RS. 42,594/- ON ACCOUNT OF LOW G.P WITHOUT CONSIDERING THE FACT THAT SALES HAVE INCREASED CONSIDERABLY DURING THE YEAR AND THE G.P. WAS REDUCED TO BOOST THE SALES. D) THAT THE LD. A.A. IS NOT JUSTIFIED IN MAKING AN ADDITION OF RS. 1,01,667/- BEING THE AMOUNT OF G.P. ON RS. 6,70,624/- (I.E. BEING THE AMOUNT OF DIFFERENCE ON ACCOUNT OF CREDITOR) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. E) THAT THE LD. A.A. IS NOT JUSTIFIED IN ESTIMATING THE HOUSEHOLD EXPENSES AT RS. 2 LACS WITHOUT BRINING ANY MATERIAL ON RECORD TO PROVE THE AMOUNT OF EXPENDITURE AND THEREBY MAKING AN ADDITION OF RS. 86,400/- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THE CASE THAT A RETURN DECLAR ING AN INCOME OF RS. 1,67,340/- WAS FILED ON 29.9.2007. THE ASSESSMENT WAS FAMED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') ON 30.11.2009 AT AN INCOME OF RS. 4,76,376/- AFTER MAKING VARIOUS ADDI TIONS TO THE TUNE OF RS. 3,09,036/-. THE ASSESSEE CHALLENGED THE ORDER PASSED BY THE ASSESSING OFFICER IN APPEAL BEFORE THE CIT(A). 4. THE APPEAL FILED BY THE ASSESSEE BEFORE THE CIT( A) WAS TIME BARRED BY MORE THAN 6 MONTHS. THE ASSESSEE FILED AN APPLI CATION FOR CONDONATION OF DELAY AS UNDER:- THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMEN T IN THIS CASE WAS MADE U/S 143(3) ON 30.11.2007 AND THE ORDER FOR THE SAME WAS RECEIVED BY THE ASSESSEE ON THE SAME DATE. 3 NOW THE ASSESSING OFFICER HAS IMPOSED PENALTY U/S 271(1) (C). I HAVE COME TO KNOW FROM THE PENALTY O RDER THAT NO APPEAL HAS BEEN FILED BY MY COUNSEL AGAINST THE ORDER PASSED U/S 143(3) THOUGH I HAD GIVEN ALL THE PAPERS TO MY COUNSEL DULY SIGNED FOR FILING THE APP EAL. NOW, I AM FILING THIS APPEAL IMMEDIATELY AFTER COMI NG TO KNOW THE FACT ABOUT NON FILING OF APPEAL. I THROUG H THIS APPLICATION REQUEST YOUR GOODSELF TO CONDONE THE DE LAY IN FILING THE APPEAL AS I WAS PREVENTED BY A REASON ABLE CAUSE. 5. THE CIT(A) DID NOT CONDONE THE DELAY OBSERVING A S UNDER:- AFTER CAREFULLY CONSIDERING THE ABOVE SUBMISSION O F THE APPELLANT FOR CONDONATION OF DELAY THE SAME IS NOT ACCEPTABLE AS THE ASSESSEE HAS NOT SHOWN ANY COGENT REASON BY WHICH HE WAS PREVENTED OR ANY CIRCUMSTANCES BEYOND HIS CONTROL IN LATE FILING THE APPEAL. THEREFORE, KEEPING IN VIEW THE ABOVE AND A FTER CAREFULLY CONSIDERING THE FACTS OF THE CASE, THE AP PEAL IS CONSIDERED AS NON-EST AND DISMISSED. 6. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L AGAINST THE ORDER OF CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, ASSES SMENT WAS MADE U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE A CT') ON 30.11.2009 AND THE ORDER OF THE SAME WAS RECEIVED BY THE ASSESSEE ON THE SAME DATE. THE ASSESSEE WAS REQUIRED TO FILE THE APPEAL WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF ASSESSMENT ORDER. ADMITTEDLY, THE ASSES SEE FILED THE APPEAL BEFORE THE CIT(A) ON 11.6.2010. THUS, THERE IS A D ELAY OF 162 DAYS IN FILING THE APPEAL BEFORE THE CIT(A). IN THE INSTAN T CASE, THE CIT(A) REFUSED TO CONDONE THE DELAY STATING THAT THE ASSES SEE HAS NOT SHOWN ANY COGENT REASONS / EVIDENCE BY WHICH HE WAS PREVENT O R ANY CIRCUMSTANCES BEYOND HIS CONTROL IN LATE FILING OF APPEAL. SHRI A.K. JINDAL, LD. COUNSEL 4 FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE DECISIO N TO CONDONE DELAY SHOULD BE EXERCISED LIBERALLY. THE MATTER RELATING TO CONDONATION OF DELAY SHOULD BE JUDGED BROADLY AND NOT IN A PADANTIC MANN ER. HE, FURTHER SUBMITTED THAT THERE WAS A SUFFICIENT CAUSE WHICH P REVENTED THE ASSESSEE FROM FILING THE APPEAL BEFORE THE CIT(A). HE FURTH ER SUBMITTED THAT ASSESSING OFFICER HAS IMPOSED PENALTY U/S 271(1) (C ) OF THE ACT. FROM THE SAID ORDER, THE ASSESSEE CAME TO KNOW THAT NO A PPEAL HAS BEEN FILED BY HER COUNSEL AGAINST THE ORDER PASSED U/S 143(3) OF THE ACT. SHE HAD GIVEN ALL THE PAPERS TO HER COUNSEL DULY SIGNED FOR FILIN G THE APPEAL. HE, THEREFORE, SUBMITTED THAT THE DELAY MAY BE CONDONED . 8. IN OUR VIEW, THE ASSESSEE FAILED TO PROVE THE SU FFICIENT CAUSE WHICH PREVENTED HER TO FILE THE APPEAL IN TIME BEFORE THE CIT(A). IT IS TRUE THAT THE PHRASE SUFFICIENT CAUSE IS NOT A QUESTION OF PRINCIPLE BUT IS A QUESTION OF FACT. HENCE, WHETHER TO CONDONE THE DE LAY OR NOT DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF THE EACH CASE A S SUFFICIENT CAUSE FOR CONDONATION OF DELAY DEPENDS ONLY ON THE FACTS PLAC ED BY THE ASSESSEE BEFORE THE CIT(A). IN THE APPLICATION FOR CONDONAT ION OF DELAY, THE ASSESSEE HAS CONTENDED THAT SHE HAD GIVEN ALL THE P APERS TO HER COUNSEL DULY SIGNED FOR FILING THE APPEAL. HOWEVER, THE A SSESSEE HAS NOT DISCLOSED THE NAME OF HER COUNSEL IN HER APPLICATIO N. THE ASSESSEE HAS ALSO NOT SUBMITTED ANY AFFIDAVIT FROM HER ALLEGED C OUNSEL TO SUPPORT HER BONAFIDES. ADMITTEDLY, THERE IS INORDINATE DELAY O F MORE THAN FIVE MONTHS. IT IS ALSO NOT CLEAR FROM THE APPLICATION F OR CONDONATION OF DELAY AS ON WHAT DATE THE RELEVANT PAPERS FOR FILING THE APPEAL WERE HANDED OVER TO THE ALLEGED COUNSEL. IN THE CASE OF SHRI AJIT SINGH THAKUR SINGH VS STATE OF GUJARAT AIR 1981 SC 733, 735, THE HON'BLE SUPREME COURT HELD AS UNDER- 5 IT IS TRUE THAT A PARTY IS ENTITLED TO WAIT UNTIL THE LAST DAY OF LIMITATION FOR FILING AN APPEAL. BUT WHEN I T ALLOWS LIMITATION TO EXPIRE AND PLEADS SUFFICIENT CAUSE FO R NOT FILING THE APPEAL EARLIER, THE SUFFICIENT CAUSE MUST ESTAB LISH THAT BECAUSE OF SOME EVENT OF CIRCUMSTANCES ARISING BEFO RE LIMITATION EXPIRED IT WAS NOT POSSIBLE TO FILE THE APPEAL WITHIN TIME. NO EVENT OR CIRCUMSTANCE ARISING AFTE R THE EXPIRY FOR LIMITATION CAN CONSTITUTE SUCH SUFFICIEN T CAUSE. THERE MAY BE EVENT OR CIRCUMSTANCE SUBSEQUENT TO TH E EXPIRY OF LIMITATION WHICH MAY FURTHER DELAY THE FILING OF APPEAL. BUT THAT THE LIMITATION HAS BEEN ALLOWED TO EXPIRE WITHOUT THE APPEAL BEING FILED MUST BE TRACED TO A CAUSE AR ISING WITHIN THE PERIOD OF LIMITATION. 9. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT TH E ASSESSEE FAILED TO ESTABLISH THAT BECAUSE OF SOME EVENT OR CIRCUMSTANC ES ARISING BEFORE LIMITATION EXPIRED, IT WAS NOT POSSIBLE TO FILE THE APPEAL WITHIN TIME. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, WE UPHOLD THE ORDER OF CIT(A). 10. SINCE WE HAVE CONFIRMED THE ORDER OF CIT(A), T HEREFORE, WE DON NOT THINK IT NECESSARY TO DECIDE THE GROUNDS OF APP EAL RAISED BY THE ASSESSEE ON MERITS. 11. IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF NOVEMBER, 2011. SD/- SD/- (D.K.SRIVASTAVA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 25 TH NOVEMBER, 2011 RKK 6 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR