Ganesh Industries, Gandhinagar V. The Income Tax Officer, Ward-2, Gandhinagar

ITA 983/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6316 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ADITI SHETH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO. 983/AHD/2015 (ASSESSMENT YEAR: 2010-11) GANESH INDUSTRIES, 157, PINUDARDA VILLAGE, GANDHINAGAR 382009 APPELLANT VS. THE ITO, WARD-2, GANDHINAGAR RESPONDENT PAN: AAIFG1106D /BY ASSESSEE : ADITI SHETH, A.R. /BY REVENUE : SHRI KEYUR PATEL, SR. D.R /DATE OF HEARING : 13.12.2017 /DATE OF PRONOUNCEMENT : 10.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11, ARISES AGAINST THE CIT(A)-7, AHMEDABADS ORDER DATED 28.01.2015, IN CA SE NO. CIT(A)-7/255/13-14, UPHOLDING ASSESSING OFFICERS ACTION IMPOSING PENAL TY OF RS.9,88,145/- AFTER REFUSING TO CONDONE THE DELAY IN QUESTION, IN PROCE EDINGS U/S.271(1)(C) OF THE INCOME TAX ACT, 1961, HEREINAFTER THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE CIT(A) REFUSES TO CONDONE THE DELAY IN QUESTION AT ASSESSEES BEHEST IN CHALLENGING THE AS SESSING OFFICERS ACTION ITA NO. 983/AHD/15 [GANESH INDUSTRIES VS. ITO] A.Y. 2010-11 - 2- IMPOSING THE IMPUGNED PENALTY PERTAINING TO DISALLO WANCES/ADDITIONS U/S.40A(3), SUNDRY CREDITORS AND REMUNERATION TO PARTNERS OF RS .28,10,631/-, RS.3,15,000/- AND RS.72,252/-; RESPECTIVELY AS UNDER: 3. IN THIS CASE, THE PENALTY ORDER U/S. 271(L)(C) OF THE I.T. ACT, HAS BEEN PASSED BY THE ITO, WARD-3, GANDHINAGAR ON 25.09.2013 AND SERV ED UPON THE ASSESSEE ON 22.10.2013. THE APPEAL HAS BEEN FILED ON 03.01.2014 . AS PER SECTION 249(2), THE APPEAL IS TO BE FILED WITHIN 30 DAYS OF SERVICE OF THE ORD ER I.E. THE APPEAL SHOULD HAVE BEEN FILED BEFORE 23.11.2013, BUT THE APPEAL HAS BEEN FILED BE YOND 30 DAYS. THE APPELLANT HAS FILED CONDONATION PETITION, UNDER: '(I) THE FACTORY OF THE APPELLANT FIRM IS NOT RUNN ING AND HAS BEEN CLOSED FOR OVER LAST ONE YEAR. HENCE, THE PARTNERS OF THE APPE LLANT FIRM DO NOT VISIT THE FACTORY PREMISES FREQUENTLY. (II) THE ORDER OF THE LD. AO WAS RECEIVED AT THE FACTORY PREMISES EN 22/10/2013. SINCE AT THE PARTNERS OF THE APPELLANT FIRM DO NOT VISIT THE FACTORY PREMISES ON REGULAR BASIS, THE ORDER SO REC EIVED AT THE FACTORY PREMISES REMAINED UNATTENDED. (II) LATER, PARTNER OF THE APPELLANT FIRM VISITE D THE FACTORY PREMISES ON 20/12/2013 AND LEARNT THAT THE IMPUGNED ORDER HAS B EEN PASSED IN APPELLANT'S CASE. HE THEREFORE FORWARDED THE SAME T O HIS CHARTERED ACCOUNT ON 24/12/2013, THE SAID CHARTERED ACCOUNT F ORWARDED THE IMPUGNED ORDER TO THE CONCERNED ADVOCATE ON 31/12/2 013. IN TURN, THE CONCERNED ADVOCATE PREPARED FROM NO. 35 ALONGWITH A ND FORWARDED THE SAME TO THE APPELLANT TO APPELLANT TO SIGN FROM NO. 35 ON THE VERY DAY I.E. ON 01/01/2014. THEREAFTER, THE APPEAL CAME TO BE FILED BEFORE YOUR HONOURS ON 03/01/2014. UNDER THE CIRCUMSTANCES STATED ABOVE, THE DELAY IN FILING THE APPEAL IS MAINLY ON ACCOUNT OF THE FACT THAT THE FACTORY OF THE APPELLA NT FIRM HAS BEEN CLOSED FOR OVER LAST ONE YEAR AND CONSEQUENTLY, THE ORDER SO RECEIV ED AT THE FACTORY PREMISES REMAINED UNATTENDED. HENCE, IT IS PRAYED TO YOUR HO NOURS THAT THERE IS GOOD SUFFICIENT REASON TO CONDONE THE DELAY AND THEREFOR E THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDONED AND THE APPEAL MAY KINDLY HE DECIDED ON MERITS. 3.1 I HAVE CONSIDERED THE ABOVE. THE REASONS GIVEN BY THE APPELLANT FOR NOT FILING APPEAL IN TIME IS THAT THE FACTORY OF THE APPELLANT FIRM HAS BEEN CLOSED FOR LAST ONE YEAR, HENCE, THE PARTNERS OF THE APPELLANT FIRM DO NOT VI SIT THE FACTORY FREQUENTLY, HENCE THE ORDER SENT AT THE FACTORY PREMISES REMAINED UNATTEN DED. THE REASONS GIVEN BY THE APPELLANT IS NOT SATISFACTORY AS THE PARTNER OF THE APPELLANT HAS GIVEN THE SAME ADDRESS IN THE RETURN OF INCOME AND EVEN IN FORM NO. 35 FILED BEFORE THE CIT(A), THE APPELLANT WAS REQUIRED TO GIVE THE ADDRESS FOR COMMUNICATION WHER E HE COULD RECEIVE THE NOTICES, ETC. AND COMPLY PROMPTLY. THE REASON FOR THE DELAY IN FI LING THE APPEAL GIVEN BY THE APPELLANT IS NOT SUFFICIENT CAUSE FOR NOT PRESENTING THE APPE AL WITHIN 30 DAYS. 3.2 CONSIDERING THE ABOVE FACTS, I AM THEREFORE, NO T SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THE PERIOD OF 30 DAYS. THE APPEAL IS NOT ADMITTED AND ACCORDINGLY DISMISSED . 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. THERE IS NO DISPUTE THAT THE DELAY IN QUESTION IS LESS THAN TWO MONTHS. THE ASSESSEE ITA NO. 983/AHD/15 [GANESH INDUSTRIES VS. ITO] A.Y. 2010-11 - 3- HAS ADMITTEDLY SOUGHT TO EXPLAIN THE SAME ON THE GR OUND THAT THE FACTORY IN QUESTION REMAINED CLOSED. ITS FURTHER CASE WAS THA T THE ASSESSING OFFICERS PENALTY ORDER COULD BE RECEIVED BY ITS PARTNERS VI SIT ON RANDOM BASIS ONLY. LEARNED CIT(A) IS OF THE VIEW THAT THE MERE FACT IS THAT THE ASSESSEE HAS BEEN CONTINUING WITH THE SAME ADDRESS THROUGHOUT SUFFICI ENTLY INDICATES THAT THE ABOVE REASON IS NOT SATISFACTORY. WE FIND NO REASON TO C ONCUR WITH THE SAME. LEARNED CIT(A) FAILS TO REBUT ASSESSEES MAIN PLEA OF ITS B USINESS PREMISES LYING CLOSED. THAT FORMS A MUCH SUBSTANTIAL REASON FOR US TO ACCE PT ITS PLEA THAT ITS PARTNERS DO NOT VISIT THE SAME PREMISES VERY OFTEN SO AS TO CON CLUDE THAT THE IMPUGNED DELAY IS NEITHER INTENTIONAL NOR DELIBERATE. WE THEREFORE A CCEPT ASSESSEES SOLE SUBSTANTIVE GROUND FOR STATISTICAL PURPOSES. THE CIT(A) IS DIR ECTED TO ADJUDICATE ASSESSEES APPEAL CHALLENGING CORRECTNESS OF THE ABOVE PENALTY IMPOSED AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 10 TH DAY OF JANUARY, 2018.] SD/- SD/- (PRADIP KUMAR KEDIA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD: DATED 10/01/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0