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

ITA 955/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6541 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D V SUBBA RAO
• Assessee Lawyers: N ARJUN RAJ
• Keywords: Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay
• Section: 143(3); 133A; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , # , ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , ACCOUNTANT MEMBER ./ ITA NO.955/CHNY/2018 /ASSESSMENT YEAR: 2008-09 SHRI KISHORE NANWANI, C/O. SHRI S.SRIDHAR, A.S.SRIRAMAN, ADVOCATES NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI-600 020. V . THE INCOME TAX OFFICER, WARD-1(1), PONDICHERRY. [PAN: AEKPN 5787 R ] ( ) /APPELLANT) ( *+) /RESPONDENT) ) , / APPELLANT BY : MR.N.ARJUN RAJ, CA *+) , /RESPONDENT BY : MR.D.V.SUBBA RAO, JCIT , /DATE OF HEARING : 22.10.2019 , /DATE OF PRONOUNCEMENT : 22.10.2019 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE INCO ME TAX APPELLATE TRIBUNAL, CHENNAI BENCHES, CHENNAI (HEREINAFTER CAL LED THE TRIBUNAL) CHALLENGING THE APPELLATE ORDER PASSED BY LEARNED C OMMISSIONER OF ITA NO.955/CHNY/2018 :- 2 -: INCOME TAX (APPEALS)-PUDUCHERRY ( HEREINAFTER CALLE D THE CIT(A) ), IN ITA NO.109/CIT(A)-PDY/2015-16 DATED 13.02.2017 FOR ASSESSMENT YEAR (AY) 2008-09. THE APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM ASSESSMENT ORDER DATED 30.09.2014 PASSED BY LE ARNED ASSESSING OFFICER( HEREINAFTER CALLED THE AO) U/S 143(3) R EAD WITH SECTION 147 OF THE INCOME-TAX ACT 1961( HEREINAFTER CALLED THE AC T) .THE ASSESSEE HAS FILED THIS APPEAL LATE BY 340 DAYS WITH THE TRIBUNA L BEYOND THE TIME PRESCRIBED BY SECTION 253(3) OF THE 1961 ACT, FOR W HICH THE ASSESSEE HAS SOUGHT FOR CONDONATION OF AFORESAID DELAY OF 340 DA YS IN FILING THIS APPEAL BEFORE THE TRIBUNAL BY FILING AN AFFIDAVIT DATED 19 .10.2019, WHICH IS RE- PRODUCED HEREUNDER: BEFORE THE INCOME TAX APPELLATE TRIBUNAL CHENNAI C BENCH I.T.A. NO. 955/CHNY/2018 (ASSESSMENT YEAR: 2008-09) MR. KISHORE NANWANI PAN: AEKPN5787R PETITIONER/APPELLANT I, KISHORE NANWANI, SON OF LATE SHRI CHATHARAM, HIN DU, AGED ABOUT 53 YEARS RESIDING AT NOS. 44 - 46, J.N.STREET, PUDUCHERRY - 605 001 DO H EREBY SOLEMNLY AND SINCERELY AFFIRM AND STATE AS FOLLOWS: I AM THE APPELLANT/PETITIONER HEREIN AND AM WELL ACQ UAINTED WITH THE FACTS RELATING TO THE BELATED FILING OF THE ABOVE APPEAL RELATING TO THE ASSESSMENT YEAR 2008-09 BEFORE THE JURISDICTIONAL BENCH OF THE INCOME TAX APPELLATE TR IBUNAL COMPETENT TO SWEAR TO THIS AFFIDAVIT. I STATE THAT THE APPEAL CHALLENGING THE ORDER OF TH E CIT(APPEALS) DATED 13.02.2017 IN DISMISSING THE APPEAL FILED AGAINST THE RE-ASSESSME NT ORDER DATED 30.09.2014 ON THE TECHNICAL GROUND WITHOUT ADJUDICATING THE ISSUES ON MERITS AND THE DELAY IN FILING THE BELATED APPEAL WAS NEITHER WILLFUL NOR DELIBERATE B UT DUE TO THE CIRCUMSTANCES BEYOND MY CONTROL, JUSTIFYING MY PLEA FOR THE ADMISSION OF TH E APPEAL FOR ADJUDICATION OF THE ISSUES ON MERITS RELATING TO THE CORRECTNESS OF THE DECISION RENDERED BY THE CIT(APPEALS) IN DISMISSING THE APPEAL AS TIME BARRED BY LIMITATION. I STATE THAT THE DELAY OF 340 DAYS IN FLING THE APP EAL 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 T AKEN BY THE TRO IN BRINGING THE RESIDENTIAL PROPERTY FOR AUCTION IN THE MONTH OF MARCH 2018 TRI GGERED 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 FILES POINTED OUT THE NON FILING OF THE APPEAL AGAINST THE IMPUGNED ORDER OF THE CIT(AP PEALS) DATED 13.02.2017 IN SUSTAINING THE RE-ASSESSMENT ORDER FOR THE ASSESSMENT YEAR UND ER CONSIDERATION IN NOT ENTERTAINING THE FIRST APPEAL BEFORE HIM ON THE GROUND OF LIMITA TION. ITA NO.955/CHNY/2018 :- 3 -: I STATE THAT IMMEDIATELY STEPS WERE TAKEN FOR FILIN G 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 20.03.20 18 FOR WHICH THE PLEA OF CONDONATION OF DELAY IN FILING THE SAID APPEAL IS SUBSTANTIATED TH ROUGH THIS AFFIDAVIT. I STATE THAT THE MISTAKE COMMITTED DUE TO MY FAMILY PROBLEMS AND DRASTIC COMPLICATIONS FACED IN THE BUSINESS/PROFESSION PURSUED BY ME BY N OT APPOINTING A PROFESSIONAL FOR CHALLENGING UNREASONABLE DISMISSAL OF THE APPEAL IN NOT CONDONING THE SMALL DELAY IN FILING THE FIRST APPEAL AS WELL AS THE ERRONEOUS COMPUTATI ON OF TAXABLE TOTAL INCOME IN THE RE- ASSESSMENT ORDER ON VARIOUS FACETS SHOULD BE RECKON ED AS BONAFIDE EXPLANATION AND ACCEPTABLE AS REASONABLE CAUSE FOR ADMISSION OF THE APPEAL. IN SUCH CIRCUMSTANCES, THE DELAY OF 340 DAYS IN FIL ING THE APPEAL RELATING TO THE ASSESSMENT YEAR 2008-09 MAY BE CONDONED FOR ADJUDICATION OF TH E ISSUES ON MERITS ARISING FROM THE ORDER OF THE CIT(APPEALS) AT PONDICHERRY DATED 13.02 .2017 IN I.T.A.NO. 109/CIT(A)- PDY/2015-16 AND THUS RENDER JUSTICE. SOLEMNLY AND SINCERELY AFFIRMED AT PONDICHERRY THIS THE 19 TH DAY OF BEFORE ME OCTOBER, 2019 AND SIGNED HIS NAME IN MY PRESENCE SD/- ADVOCATE: PONDICHERRY SIGNED BEFORE ME SD/- K.ILANGOVAN, B.A., B.L. 31,SCHOOL ST., GOVINDA SALAI PUDUCHERRY-605011 CELL:XXXXXXXXXX REGD. NO. 7150/2008 2. WHEN THIS APPEAL CAME UP FOR HEARING BEFORE THE BENCH, THE LD.COUNSEL FOR THE ASSESSEE FAIRLY INFORMED THE BEN CH THAT EVEN BEFORE THE LD.CIT(A), THE ASSESSEE HAS FILED THE FIRST APPEAL WITH DELAY OF 416 DAYS BEYOND THE TIME STIPULATED U/S 249(2) OF THE 1961 A CT. THE ASSESSMENT ORDER DATED 30.09.2014 PASSED BY THE AO U/S.143(3) R.W.S.147 WAS ADMITTEDLY RECEIVED BY THE ASSESSEE ON 30.09.2014 A S PER FORM NO. 35 FILED BY THE ASSESSEE WITH LEARNED CIT(A) AND AS PE R ASSESSEES OWN VERSION, THE ASSESSEE SHOULD HAVE FILED THIS APPEAL BEFORE LD.CIT(A) LATEST BY 30.10.2014 BUT THE ASSESSEE FILED AN APPEAL BEFO RE LD.CIT(A) ONLY ON 21.12.2015, WITH A DELAY OF 416 DAYS BEYOND TIME ST IPULATED U/S 249(2) OF THE 1961 ACT. THE ASSESSEE WAS NOT ABLE TO DEMO NSTRATE SUFFICIENT ITA NO.955/CHNY/2018 :- 4 -: CAUSE FOR FILING FIRST APPEAL WITH DELAY OF 416 DAY S BEFORE LEARNED CIT(A) WHICH LED TO DISMISSAL OF HIS APPEAL BY LEARNED CIT (A) ON THIS SHORT GROUND AS LEARNED CIT(A) REFUSED TO CONDONE AFORESAID DELA Y U/S. 249(3) OF THE 1961 ACT , VIDE APPELLATE ORDER DATED 13.02.2017 PA SSED BY LEARNED CIT(A). EVEN AFTER GETTING A MAJOR SET BACK VIDE D ISMISSAL OF HIS APPEAL BY LEARNED CIT(A), STILL THE ASSESSEE HAS NOT WOKEN UP TO HIS RIGHTS AND CHOSEN TO BE DEFIANT AS SECOND APPEAL BEFORE TRIBU NAL WAS FILED U/S 253(1) OF THE 1961 ACT WITH A DELAY OF 340 DAYS BEY OND THE TIME STIPULATED U/S 253(3) OF THE 1961 ACT. THE ASSESSEE VIDE ITS OWN ADMISSION IN FORM NO 36 HAS RECEIVED APPELLATE ORDE R PASSED BY LEARNED CIT(A) ON 13.02.2017 , WHILE APPEAL IS FILED WITH T RIBUNAL ONLY ON 20.03.2018 WITH A DELAY OF 340 DAYS BEYOND TIME PRE SCRIBED U/S 253(3) OF THE 1961 ACT. IT IS ONLY WHEN THE PROCEEDINGS FOR A UCTION OF ASSESSEES RESIDENTIAL PROPERTY WAS STARTED BY LEARNED TAX REC OVERY OFFICER , THAT THE ASSESSEE WOKE UP AND FILED ITS APPEAL WITH THE TRIB UNAL. THUS, VARIOUS NOTICES ETC WHICH DEPARTMENT HAD ISSUED IN THE INTE RVENING PERIOD PRIOR TO STARTING AUCTION PROCEEDINGS BY LEARNED TRO DID NOT GAVE WAKE UP CALL TO THE ASSESSEE. THE ORDER OF THE AO WAS PASSED ON 30. 09.2014 WHILE APPEAL WITH TRIBUNAL WAS FILED ON 20.03.2018, THUS THIS IN TERVENING PERIOD OF THREE AND HALF YEARS WHEREIN DEMAND WAS REMAINING OUTSTAN DING AGAINST THE ASSESSEE WAS NOT SUFFICIENT FOR THE ASSESSEE TO REM AIN VIGILANT AS TO HIS RIGHTS AND DUTIES. WE HAVE OBSERVED THAT THE AFFIDA VIT FILED BY THE ASSESSEE DATED 19.10.2019 WITH TRIBUNAL DID NOT STA TE ANY BONAFIDE AND SUFFICIENT CAUSE WHICH COULD INSPIRE CONFIDENCE IN US TO INVOKE OUR POWERS ITA NO.955/CHNY/2018 :- 5 -: U/S 253(5) OF THE 1961 ACT TO CONDONE THIS DELAY I N FILING OF THE APPEAL BY THE ASSESSEE WITH TRIBUNAL WITH DELAY OF 340 DAYS B EYOND THE TIME STIPULATED U/S 253(3) OF THE 1961 ACT. THE MAIN REA SON FOR FILING THIS APPEAL LATE AS STATED BY ASSESSEE IN HIS AFFIDAVIT IS THAT THE ASSESSEE RECEIVED THE APPELLATE ORDER PASSED BY LEARNED CIT( A) BUT MISPLACED IT. THE ASSESSEE IS A BUSINESS MAN AND ENGAGED IN RETAI L TRADE IN GARMENTS. THE ASSESSEE WAS SURVEYED BY DEPARTMENT U/S 133A OF THE 1961 ACT ON 13.12.2010 AND IT REVEALED DURING SURVEY PROCEEDING S THAT THE ASSESSEE WAS HAVING SEVERAL BANK ACCOUNTS WHICH WERE NOT DEC LARED TO REVENUE. THE ASSESSEE WAS REPRESENTING BY A QUALIFIED CHARTE RED ACCOUNTANT MR. T. POTHI MADHAVAN BEFORE LEARNED CIT(A) AND THE ASSESS EE NOW COULD NOT CLAIM THAT HE WAS NOT AWARE OF THE STATUTORY PROVIS IONS AS ARE ENSHRINED IN THE 1961 ACT . THE COURTS WILL ASSIST ONLY THOSE WHO ARE VIGILANT OF THEIR RIGHTS AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. T HE INSTANT CASE BEFORE US CLEARLY SHOWS THAT THE ASSESSEE IS NOT VIGILANT ABOUT HIS RIGHTS, A LITIGANT HAS TO BE VIGILANT ABOUT HIS RIGHTS AND TH E ASSESSEE TOOK THIS MATTER IN A VERY CASUAL AND LACKLUSTER MANNER. WE A RE FULLY AWARE THAT WHEN TECHNICALITIES ARE PITTED AGAINST SUBSTANTIAL JUSTICE , THE COURTS WILL LEAN TOWARDS SUBSTANTIAL JUSTICE BUT IT IS EQUALLY IMPORTANT FOR ASSESSEE TO DEMONSTRATE HIS BONAFIDE AND DEMONSTRATE SUFFICIENT CAUSE FOR THIS SUBSTANTIAL DELAY OF 340 DAYS IN FILING THIS APPEAL LATE BEYOND LIMITATION PERIOD PRESCRIBED U/S 253(3) OF THE 1961 ACT. IN OU R CONSIDERED VIEW, THE ASSESSEE HAS FAILED TO DEMONSTRATE HIS BONAFIDE AND SUFFICIENT CAUSE IN FILING THIS APPEAL LATE BY 340 DAYS AND WE DO NOT FIND ANY MERIT IN ITA NO.955/CHNY/2018 :- 6 -: ADMITTING THIS APPEAL WHICH IS DELAYED BY 340 DAYS AS WE REFUSE TO CONDONE THE DELAY OF 340 DAYS IN FILING THIS APPEAL LATE BY ASSESSEE BEYOND TIME PRESCRIBED U/S 253(3) OF THE 1961 ACT A ND DISMISS THIS APPEAL FILED BY ASSESSEE. WE ORDER ACCORDINGLY. 3. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 955/CHNY/2018 FOR AY; 2008-09 IS DISMISSED ON GROUN D OF DELAY IN FILING OF THE APPEAL LATE WITH TRIBUNAL BY 340 DAYS BEYOND TIME PRESCRIBED U/S 253(3) OF THE 1961 ACT. ORDER PRONOUNCED IN OPEN COURT ON THE CONCLUSION O F THE HEARING ON THE 22 ND OCTOBER, 2019 IN CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( # ) ( RAMIT KOCHAR ) /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED:22 ND OCTOBER, 2019. TLN , *#2 32 /COPY TO: 1. ) /APPELLANT 4. 4 /CIT 2. *+) /RESPONDENT 5. 2 * /DR 3. 4 ( ) /CIT(A) 6. /GF