B.J.Samson, CHENNAI V. ACIT, CHENNAI

ITSSA 10/CHNY/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1484 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 28-12-2015
• Assessment Year: misc
• Appeal Filed On: 07-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A B KOLI IRS
• Assessee Lawyers: S SRIDHAR
• Keywords: Reasonable cause; Condonation of delay
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , ! ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T(SS).NO.10/MDS/2015 BLOCK PERIOD : 1989-90 TO 1999-2000 SHRI. B.J. SAMSON, NO.4, BAZAAR STREET, CHINTADRIPET, CHENNAI 600 002. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(4) CHENNAI. [PAN AJTPB 9940L] ( / APPELLANT) ( /RESPONDENT) #$ % & / APPELLANT BY : SHRI. S. SRIDHAR, ADVOCATE '(#$ % & /RESPONDENT BY : SHRI. A.B. KOLI, IRS, JCIT. % ) / DATE OF HEARING : 28-12-2015 *+, % ) / DATE OF PRONOUNCEMENT : 06-01-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, CHENNAI IN ITA NO.65/05-06, DATED 26.12.2005 PASSED U/S.158BC R.W.S 158BD, R.WS .144 AND 250 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS FILED GROUNDS ON THE BEST JUDG MENT ASSESSMENT U/SEC. 144 OF THE ACT FOR THE BLOCK PER IOD IN RESPECT OF ADDITION OF UNDISCLOSED INCOME. IT(SS)A NO.10/MDS/2015 :- 2 -: 3. BEFORE GOING IN TO THE MERITS OF THE CASE, THE A SSESSEE HAS FILED CONDONATION PETITION TO CONDONE DELAY OF 3389 DAYS. ON PERUSAL OF THE CONDONATION PETITION, THE ASSESSEE HAS NOT M ENTIONED THE NUMBER OF DAYS DELAY IN FILING THE APPEAL. 4. WE HEARD BOTH THE PARTIES. AT THE TIME OF HEARING, THE LD. COUNSEL SUBMITTED THAT ASSESSEE IS A SENIOR CITIZEN AND IN BUSINESS OF TRADING IN DRY FISH AND DUE TO NO FAULT OF HIS WORK , THE SEARCH WAS CONDUCTED BY INVOKING PROVISIONS U/S.158BD DUE TO S EARCH OPERATIONS ON MR. S. THIAGARAJAN. THE ASSESSEE IS ALSO IGNORA NT ABOUT INCOME TAX LAWS AND BEING A SMALL TIME BUSINESS MAN DUE T O FINANCIAL DIFFICULTIES HE SHIFTED FROM CHENNAI TO MUMBAI, AND INCOME TAX PAYMENT ISSUE CAME TO LIGHT ON THE BASIS OF TRO NOT ICE, SUBSEQUENTLY STEPS WERE TAKEN TO FILE THE APPEAL BUT DUE TO MISP LACEMENT OF ORDER BY THE FAMILY MEMBERS, APPEAL COULD NOT BE FILED IN TIME AND PLEADED FOR CONDONATION OF DELAY AND DECIDE THE ISSUE ON ME RITS. CONDONATION PETITION FILED BY THE ASSESSEE IS AS UNDER:- AFFIDAVIT I, B.J. SAMSON, SON OF BALUSAMY JOSESPH, CHRISTIAN, AGED ABOUT 60 YEARS RESIDING AT NO.4, BAZAAR STREET, CHINTADRIPET , CHENNAI 600 002 DO HEREBY SOLEMNLY AND SINCERELY AFFIRM AND STA TE AS FOLLOWS:- I AM THE PETITIONER/APPELLANT HEREIN AND AM WELL AC QUAINTED WITH THE FACTS OF THE CASE, COMPETENT TO SWEAR TO THIS A FFIDAVIT. I STATE THAT THE ORDER OF THE CIT(APPEALS) I, CHENN AI - 600 034 DATED 26.12.2005 WAS RECEIVED IN MY ABSENCE DURING JANUARY 2006 AND THE APPEAL AGAINST THE SAID ORDER OUGHT TO HAVE BEEN IT(SS)A NO.10/MDS/2015 :- 3 -: FILED WITHIN 60 DAYS FROM THE DATE OF COMMUNICATION OF THE IMPUGNED ORDER. I STATE THAT THE APPEAL AGAINST THE SAID ORDER IS BEING FILLED ALONG WITH THIS AFFIDAVIT BELATEDLY DU E TO THE CIRCUMSTANCES BEYOND MY CONTROL. BASICALLY, I AM IN THE BUSINESS OF TRADING IN DRY F ISH IN A SMALL WAY AT CHINTARDRIPET, CHENNAI AND I STATE THAT DUE TO T HE WRONG INITIATION OF THE PROCEEDINGS INVOKING THE PROVISIO NS OF SECTION 158 BD OF THE ACT CONSEQUENT TO THE PROCEEDINGS OF SEAR CH CONDUCTED ON MR.S. THIAGARAJAN, THE DEMAND IN THE ORDER DATED 23.03.2004 WAS RAISED. I STATE THAT THE SAID ASSESSMENT ORDER WAS ALSO CONFIRMED IN THE IMPUGNED ORDER. I STATE THAT THE IMPUGNED ORDER WAS RECEIVED AND MI SPLACED BY MY FAMILY MEMBERS WITHOUT KNOWING THE CONSEQUENCES AND FURTHER I STATE THAT THE RECEIPT OF THE IMPUGNED ORDER AND IT S MISPLACEMENT WERE NEVER INTIMATED TO ME BY MY FAMILY MEMBERS WHI CH WOULD CONSTITUTE REASONABLE CAUSE FOR THE BELATED FILING OF THE PRESENT APPEAL. I STATE THAT DUE TO HEAVY FINANCIAL PROBLEMS I HAVE SHIFTED MY SMALL TIME BUSINESS TO MUMBAI FROM 2006 AND I STATE THAT CONSEQUENT TO THE RECEIPT OF THE RECOVERY NOTICE FROM TRO - 7, CH ENNAI - 600 034 DATED 26.12.2014, THE STEPS WERE TAKEN IN CONSULTIN G THE CHARTERED ACCOUNTANTS WHO APPEARED ON MY BEHALF IN THE FIRST APPELLATE PROCEEDINGS. I STATE THAT CONSEQUENT TO T HE ADVICE OBTAINED, THE PRESENT APPEAL IS BEING FILED BELATED LY THROUGH THE COUNSEL ON RECORD IN THE REGISTRY OF THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI BENCH WITH A PRAYER TO CONDONE TH E DELAY IN FILING THE APPEAL FOR RENDERING DECISION ON MERITS. ON THE CUMULATIVE REASONS, IT IS PRAYED THAT THE DE LAY IN FILING THE APPEAL FOR CHALLENGING THE ORDER OF THE COMMISSIONE R OF INCOME TAX (APPEALS)-, CHENNAI 600 034 IN I.T.A. NO.65/200 5-06 DATED 26.12.2005 FOR THE ABOVE PERIOD MAYBE CONDONED IN T HE INTEREST OF JUSTICE AND FOR RENDERING DECISION ON MERITS. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRE SENTATIVE VEHEMENTLY ARGUED FOR DISMISSAL OF APPEAL. IT(SS)A NO.10/MDS/2015 :- 4 -: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED T HE MATERIAL ON RECORD. THE ASSESSEE EXPLAINED IN ITS CONDONATION PETITION THAT THE ASSESSEE IS IN THE BUSINESS OF TRADING IN DRY FISH IN A SMALL WAY AT CHINTARDRIPET, CHENNAI. THE IMPUGNED ORDER WAS REC EIVED AND MISPLACED BY FAMILY MEMBERS WITHOUT KNOWING THE CON SEQUENCES AND THE FAMILY MEMBERS NEVER INTIMATED THE RECEIPT OF T HE SAID IMPUGNED ORDER TO THE ASSESSEE. THOUGH THE ASSESSEE TAKEN A PLEA THAT THE IMPUGNED ORDER WAS SERVED THROUGH ITS FAMILY MEMBE R, THE ASSESSEE WAS NOT ABLE TO MENTION WHO HAVE RECEIVED THE IMPUG NED ORDER AND WHO HAVE FAILED TO BRING TO THE KNOWLEDGE OF THE AS SESSEE. THE REASON ADVANCED BY THE ASSESSEE IN ITS CONDONATION PETITION FOR INORDINATE DELAY OF 3389 DAYS IS VERY VAGUE AND TOO GENERAL AND THE REASON ADVANCED BY THE ASSESSEE CANNOT BE CONSIDERE D AS A REASONABLE ONE SO AS TO CONDONE THE INORDINATE DAY OF 3389 DAYS. THE APPROACH OF THE ASSESSEE IS CASUAL AND REQUIRES NO SYMPATHY FROM OUR END SINCE THE ASSESSEE HAS NOT SHOWN GOOD AND SUFFI CIENT REASON TO CONDONE THE DELAY. ACCORDINGLY BY PLACING RELIANCE ON THE ORDER OF THE THIRD MEMBER OF THE CO-ORDINATE BENCH DECISION IN T HE CASE OF JCIT VS. TRACTORS & FARMS EQUIPMENTS LTD 104 ITD 149 WHEREIN IT WAS OBSERVED AS UNDER:- THE LAW ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE W HO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE DI CTUM: VIGILANTIBUS NON DOEMIENTIBUS JURA SUBVENIUNT. IT(SS)A NO.10/MDS/2015 :- 5 -: THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE APP ELLANTS CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BEN EVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AN D CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT GUILTY OF NEGLIG ENCE, WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEM PLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYO ND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND A TTENTION, COULD HAVE BEEN AVOIDED, CANNOT BE A SUFFICIENT CAUSE WIT HIN THE MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE O R INACTION, OR WANT OF BONAFIDES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN OR DER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. ACCORDINGLY, WE ARE INCLINED TO DISMISS THE APPEAL OF THE ASSESSEE AS UNADMITTED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT(SS)A NO.10/MDS/2015 IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 6TH DAY OF J ANUARY, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI - / DATED:06.01.2016 KV . % '!)01 21,) / COPY TO: 1 . #$ / APPELLANT 3. 3) () / CIT(A) 5. 167 '!)! / DR 2. '(#$ / RESPONDENT 4. 3) / CIT 6. 789 : / GF IT(SS)A NO.10/MDS/2015 :- 6 -: