ITO, Aluva V. Shri P. Bozzini, Aluva

ITA 987/COCH/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61419 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2012
• Assessment Year: 1993-1994
• Appeal Filed On: 04-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause; Condonation of delay

Judgement Text

1 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 987/COCH/2008 (ASSESSMENT YEAR 1993-94) ITO, WD.1 VS SHRI P BOZZINI ALUVA FOREIGN TECHNICIAN, REP BY FACT LTD UDYOG MANDAL PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) C.O. NO.20/COCH/2009 (ARISING OUT OF I.T.A NO. 987/COCH/2008) (ASSESSMENT YEAR 1993-94) SHRI P BOZZINI VS ITO, WD.1 FOREIGN TECHNICIAN, REP BY FACT LTD ALUVA UDYOG MANGAL (CROSS OBJECTOR) (RESPONDENT) I.T.A NO. 98/COCH/2008 (ASSESSMENT YEAR 1993-94) ITO, WD.1 VS SHRI EUROPINI GIOVANI ALUVA FOREIGN TECHNICIAN, REP BY FACT LTD UDYOG MANDAL PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) C.O. NO.19/COCH/2009 (ARISING OUT OF I.T.A NO. 988/COCH/2008) (ASSESSMENT YEAR 1993-94) SHRI EUROPINI GIOVANI VS ITO, WD.1 FOREIGN TECHNICIAN, REP BY FACT LTD ALUVA UDYOG MANGAL (CROSS OBJECTOR) (RESPONDENT) 2 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 REVENUE BY : SMT. VIJAYAPRABHA ASSESSEE BY : SHRI S.R. RAJASEKHARAN DATE OF HEARING : 17-04-2012 DATE OF PRONOUNCEMENT : 17-04-2012 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE APPEALS FOR ASSESSMENT Y EAR 1993-94 AGAINST TWO INDEPENDENT ORDERS OF COMMISSIONER OF INCOME-TAX(A) FOR THE ASSESSMENT YEAR 1993-94. BOTH THE ASSESSEES HAVE FILED THE CROSS OBJECTIONS. 2. IN BOTH THE APPEALS THERE IS DELAY OF 851 DAYS I N FILING THE APPEALS BY THE REVENUE. THE REASONS STATED BY THE REVENUE FOR NOT FILING THE APPEALS WITHIN THE PRESCRIBED PERIOD ARE SAME AND IDENTICAL IN BOTH TH E APPEALS. THEREFORE WE HEARD THEM TOGETHER AND ARE DISPOSING OF THE SAME BY THIS COMM ON ORDER. 3. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE DEPARTMENT COULD NOT FILE THE APPEALS IN RESPECT OF THESE ASSESSEES BECAUSE THE D EPARTMENT HAS FILED THE APPEAL AGAINST THE PROTECTIVE ASSESSMENT PROCEEDINGS IN TH E CASE OF FACT LTD. HOWEVER, WHILE SEEKING PERMISSION OF THE COMMITTEE ON DISPUTES, THE COMMISSIONER OF INCOME-TAX(A) DIRECTED THE ASSESSING OFFICER TO WITHDRAW THE APPE AL FILED IN THE CASE OF FACT LTD AND DIRECTED THE ASSESSING OFFICER TO FILE THE APPEAL B EFORE THIS TRIBUNAL IN RESPECT OF THESE TWO ASSESSEES. THEREFORE, THERE WAS A DELAY OF 851 DAYS. ACCORDING TO THE LD.DR, THE TRIBUNAL MAY TAKE A LIBERAL VIEW AND CONDONE THE DE LAY IN FILING THE APPEALS. THE LD.DR PLACED HER RELIANCE ON THE JUDGMENT OF THE APEX COU RT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS (1987) 167 ITR 471 (SC). 4. ON THE CONTRARY, SHRI R RAJASEKHARAN, THE LD.REP RESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THERE IS NO REASONABLE CAUSE FOR NOT FILING THE APPEALS BEFORE THIS 3 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 TRIBUNAL AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX(A). THE AFFIDAVIT FILED BY THE REVENUE HAS NOT DISCLOSED ANY DETAILS WITH REGA RD TO THE REASONS FOR THE DELAY. ACCORDING TO THE LD.DR, IN THE ABSENCE OF ANY EXPLA NATION FROM THE REVENUE, THE DELAY CANNOT BE CONDONED. 5. WE HAVE HEARD THE SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY GONE T HROUGH THE JUDGMENT OF THE APEX COURT IN THE CASE OF MST. KATIJI & ORS (SUPRA). IN THE AFFIDAVIT FILED BEFORE THIS TRIBUNAL, THE REVENUE EXPLAINED THE REASONS FOR DELAY AS FOLL OWS: IT IS SEEN THAT AN APPEAL HAS BEEN FILED BEFORE T HE INCOME-TAX APPELLATE TRIBUNAL, IN THE CASE OF FACT LTD, UDYOGA MANDAL FOR THE ASSESSMENT YEAR 1993-94 AGAINST THE COMMISSIONER OF INCOME-TAX(A)S ORDER DT. 06-03-2006 CONFIRMING THE PROTECTIVE ASSE SSMENT. IT IS ALSO SEEN THAT IN THE CASE OF TWO FOREIGN TECHNICIANS OF THE COMPANY VIZ. MR. EUROPINO GIOVANAI AND MR. BOZZINI (REPRESENTED BY F ACT), THE COMMISSIONER OF INCOME-TAX(A) VIDE ABOVE ORDER HAS CANCELLED THE SUBSTANTIVE ASSESSMENTS MADE BY THE ASSESSING OFFIC ER. NO FURTHER APPEAL HA BEEN FILED BEFORE INCOME-TAX APPELLATE TR IBUNAL AGAINST THE ABOVE COMMISSIONER OF INCOME-TAX(A)S ORDER IN THE CASE OF THE TWO FOREIGN TECHNICIANS. 2. WHILE SEEKING CODS PERMISSION FOR PURSUING AP PEAL AGAINST THE COMMISSIONER OF INCOME-TAX(A)S ORDER C ONFIRMING THE PROTECTIVE ASSESSMENT IN THE HANDS OF THE FACT LTD. , THE CIT HAS DIRECTED AS FOLLOWS:- (1) FILE APPEAL BEFORE THE INCOME-TAX APPELLATE TR IBUNAL AGAINST THE CANCELLATION OF THE SUBSTANTIVE ASSESSM ENTS WITH PETITIONS FOR CONDONATION OF THE DELAY IN THE CASE OF THE TWO FOR EIGN TECHNICIANS VIZ. MR. EUROPINO GIOVANAI AND MR. BOZZINI FOR THE ASSES SMENT YEAR 1993-94. (2) WITHDRAW THE PRESENT APPEAL FILED AGAINST THE CONFIRMATION OF THE PROTECTIVE ASSESSMENT IN THE CA SE OF THE FACT LTD, FOR ASSESSMENT YEAR 1993-94. 4 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 3. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CA SE, IT IS HUMBLY REQUESTED THAT THE DELAY IN FILING THE APPEAL MAY B E CONDONED AND THE APPEAL BEFORE INCOME-TAX APPELLATE TRIBUNAL AGAINST THE CANCELLATION OF THE SUBSTANTIVE ASSESSMENTS MAY BE ADMITTED IN THE CASE OF SHRI EUROPINO GIOVANAI FOREIGN TECHNICIAN OF FACT LTD., FOR THE ASSESSMENT YEAR 1993-94. PETITION TO WITHDRAW THE APPEAL FILE D BEFORE THE INCOME- TAX APPELLATE TRIBUNAL IN THE CASE OF FACT LTD, FOR THE ASSESSMENT YEAR 1993-94 WILL BE FILED BY THE ASSESSING OFFICER WHO IS DEALING WITH THE ASSESSMENTS OF THE COMPANY, FACT LTD. 6. A BARE READING OF THE AFFIDAVIT FILED BY THE REV ENUE BEFORE THIS TRIBUNAL HAS NOT DISCLOSED ANYTHING ABOUT THE DATE OF RECEIPT OF THE ORDER, THE STEPS TAKEN BY THE REVENUE TO FILE THE APPEALS AND THE REASONS FOR THE DELAY. IT SIMPLY SAYS THAT THE COMMISSIONER OF INCOME-TAX DIRECTED TO FILE THE APP EAL AND DIRECTED THE ASSESSING OFFICER TO WITHDRAW THE APPEAL FILED IN THE CASE OF FACT LTD. FROM THE PERMISSION GRANTED BY THE ADMINISTRATIVE COMMISSIONER FOR FILI NG THE APPEALS BEFORE THIS TRIBUNAL, IT APPEARS THAT THE COPIES OF THE ORDERS OF COMMISSION ER OF INCOME-TAX(A) WERE RECEIVED IN THE OFFICER OF THE COMMISSIONER OF INCOME-TAX ON 07-06-2006. IT IS NOT KNOWN WHY THE APPEALS COULD NOT FILED BEFORE 04-12-2008 ON WH ICH DATE THE APPEALS WERE FILED. IN THE ABSENCE OF ANY EXPLANATION, THIS TRIBUNAL IS OF THE OPINION THAT THE LONG DELAY OF 851 DAYS CANNOT BE CONDONED. 7. WE FIND THAT THE APEX COURT HAD AN OCCASION TO C ONSIDER THIS ISSUE RECENTLY IN THE CASE OF OFFICER OF THE POST MASTER GENERAL & OR S VS LIVING MEDIA INDIA LTD IN CIVIL APPEAL NOS 2474-2475 OF 2012 ARISING OUT OF SLP NO S.7595-96 OF 2011 JUDGMENT DATED 24-02-2012. THE APEX COURT AFTER CONSIDERING VARIO US JUDGMENTS ON THE SUBJECT, FINALLY OBSERVED AS FOLLOWS, AT PARAGRAPHS 12 & 13 OF THE J UDGMENT: 12) IT IS NOT IN DISPUTE THAT THE PERSONS(S) CONCE RNED WERE WELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLUDING TH E PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILIN G A SPECIAL LEAVE PETITION IN THIS COURT. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LIMITATION WHEN THE DEPARTMENT WAS POSSESSED WITH C OMPETENT PERSONS 5 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 FAMILIAR WITH COURT PROCEEDINGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, WE ARE POSING A QUESTION WH Y THE DELAY IS TO BE CONDONED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT IS A PARTY BEFORE US. THOUGH WE ARE CON SCIOUS OF THE FACT THAT IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONAFI DE, A LIBERAL CONCESSION HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, W E ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES, THE DEPARTMENT CANN OT TAKE ADVANTAGE OF VARIOUS EARLIER DECISIONS. THE CLAIM ON ACCOUNT OF IMPERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SE VERAL NOTES CANNOT BE ACCEPTED IN VIEW OF THE MODERN TECHNOLOGIES BEIN G USED AND AVAILABLE. THE LAW OF LIMITATION UNDOUBTEDLY BINDS EVERYBODY INCLUDING THE GOVERNMENT. 13) IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT U NLESS THEY HAVE REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THERE WAS BONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USU AL EXPLANATION THAT THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS / YEARS DU E TO CONSIDERABLE DEGREE OF PROCEDURAL RED-TAPE IN THE PROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSUR E THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMITMENT. CONDON ATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERYONE U NDER THE SAME LIGHT AND SHOULD NOT BE SWIRLED FOR THE BENEFIT OF A FEW. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED B Y THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, ACCOR DING TO US, THE DEPARTMENT HAS MISERABLY FAILED TO GIVE ANY ACCEPTA BLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. A CCORDINGLY, THE APPEALS ARE LIABLE TO BE DISMISSED ON THE GROUND OF DELAY. 8. IN VIEW OF THE JUDGMENT OF THE APEX COURT, IT IS OBVIOUS THAT THOUGH A LIBERAL APPROACH IS REQUIRED IN CONDONATION OF DELAY, THE D EPARTMENT CANNOT TAKE ADVANTAGE OF THE NEGLIGENCE AND INACTION ON THEIR PART. IN THE ABSENCE OF ANY REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY IN FILING THE APPEALS, THE DELAY IN FILING THE APPEALS CANNOT BE CONDONED. THE REVENUE IS UNDER THE OBLIG ATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMITMENT. IN VIE W OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENE RAL & ORS VS LIVING MEDIA LTD & ANR 6 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 (SUPRA) WE FIND NO REASON TO CONDONE THE DELAY. AC CORDINGLY, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED AS BARRED BY LIMITATION. 9. IN VIEW OF THE ABOVE, IT MAY NOT BE NECESSARY FO R THIS TRIBUNAL TO GO INTO THE MERIT OF ISSUES RAISED BY THE REVENUE. 10. NOW COMING TO THE CROSS OBJECTIONS FILED BY THE ASSESSEES, THE ASSESSEE CAN FILE THE CROSS OBJECTION PROVIDED THERE WAS A VALID APPE AL FILED BY THE REVENUE. UNDER THE SCHEME OF THE ACT, CROSS OBJECTION IS NOTHING BUT A N APPEAL ENABLING THE ASSESSEE TO FILE AN APPEAL BY TAKING ADVANTAGE OF THE EXTENDED PERIO D OF LIMITATION. SUCH AN ADVANTAGE OF EXTENDED PERIOD OF LIMITATION CAN BE AVAILED BY THE ASSESSEE PROVIDED THE REVENUE HAS FILED A VALID APPEAL. THIS TRIBUNAL FOUND THAT THE APPEALS WERE NOT FILED BY THE REVENUE WITHIN THE PERIOD OF LIMITATION AND THE APP LICATIONS FILED BY THE REVENUE FOR CONDONATION OF DELAY WERE REJECTED. THEREFORE, THI S TRIBUNAL IS OF THE OPINION THAT THE ASSESSEES CANNOT AVAIL THE EXTENDED PERIOD OF LIMIT ATION FOR FILING THE APPEALS BY WAY OF THESE CROSS OBJECTIONS. THEREFORE, THE CROSS OBJEC TIONS FILED BY THE ASSESSEES ARE NOT MAINTAINABLE. 11. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE AND THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF APRIL, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 17 TH APRIL, 2012 PK/- 7 ITA NO.987 & 988/COCH/2008 CO NOS 20 & 19/COCH/2009 COPY TO: 1. ITO, WD.1. ALUVA 2. MR.P BOZZINI / EUROPINO GIOVANI, FOREIGN TECHNICIAN S, REPRESENTED BY FACT LTD, UDYOGMANGAL 3. THE COMMISSIONER OF INCOME-TAX(A)-III, KOCHI 4. THE COMMISSIONER OF INCOME-TAX, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH