Rosary Prem, Cochin V. DCIT, Cochin

ITSSA 18/COCH/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8819 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-10-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 03-04-2007
• Court: TRIBUNAL
• Department Lawyers: S C SONKARCIT
• Assessee Lawyers: CBM WARRIAERCA
• Keywords: Block assessment; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T. (S&S) A.NO. 18 /COCH/200 7 BLOCK PERIOD: 1 - 4 - 1990 TO 04 - 11 - 2000 SMT. ROSARY PREM, KOCHI-5. PA NO. ACZPR 0371A VS. THE DY. COMMISSIONER O F INCOME-TAX, CEN.CIR.2, KOCHI-18. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI CBM WARRIAER,CA RESPONDENT BY SHRI S.C.SONKAR,CIT., DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(APPEALS)-I, KOCHI, DATED 22-1- 2007. THE LD. CIT(APPEALS) FOUND THAT THERE WAS A DELAY I N FILING THE APPEAL. AFTER VERIFICATION OF THE PETITION FOR CONDONATION OF DELAY, THE CIT(APPEALS) REJECTED THE CONDONATION PETITION AND DISMISSED THE APPEAL. 2. TAKING OBJECTION TO THIS, THE LD. COUNSEL FOR TH E ASSESSEE WOULD SUBMIT THAT THE LD. CIT(APPEALS) HAS NOT VERIFIED THE PETITION FOR CONDONATION OF DELAY IN F ILING THE INCOME-TAX APPEAL. SUFFICIENT CAUSE AS PROJECTED BEFORE THE IT(S&S)A NO. 18/COCH/2007 ROSARY PREM, KOCHI. 2 LD. CIT(APPEALS) IS THAT THE PETITIONER IS AN ADVOC ATE AND DUE TO PROFESSIONAL ENGAGEMENT, SHE OMITTED TO FILE THE APPEAL WELL WITHIN THE TIME. NOW ONLY SHE FOUND O UT THE OMISSION AND IMMEDIATELY THEREON FILING THE APPEAL BEFORE THE LD. CIT(APPEALS). FURTHER, THE AUTHORIZED REPR ESENTATIVE WAS ALSO ENGAGED IN VARIOUS TAX AUDITS AND WAS AWAY IN BETWEEN. IT WAS ARRAYED THAT THE DELAY WAS DUE TO HONEST OMISSION FROM THE PART OF THE ASSESSEE AND THERE WA S NO WILLFUL ATTEMPT TO DELAY IN FILING THE APPEAL. TH EREFORE, IT WAS PRAYED BEFORE THE CIT(APPEALS) THAT THE DELAY M AY BE CONDONED AND THE APPEAL MAY BE ADMITTED. THE LD. CIT(APPEALS) REJECTED ON THIS TECHNICAL GROUND BY D ISMISSING THE APPEAL WITHOUT GOING INTO THE MERITS. 3. ON MERITS THE ISSUE IS LEVY OF SURCHARGE U/S.113 IN RESPECT OF BLOCK ASSESSMENT. THE OBJECTION OF THE ASSESSEE WOULD BE THAT THE SURCHARGE CANNOT BE LEVIED FOR A SEARCH CARRIED OUT BEFORE 01-04-2002. BUT THIS ISSUE IS NOW SETTLED BY THE DECISION OF THE APEX COURT IN THE CASE OF CIT VS. SURESH N GUPTA 297 ITR 322. HOWEVER, THE AP EX COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP (P) LTD. - 178 TAXMAN 322, HAS REFERRED THE ISSUE TO A LARGER BENC H. ON THE OTHER HAND, THE LD. CIT., D.R. WOULD SUBMIT THA T THIS IT(S&S)A NO. 18/COCH/2007 ROSARY PREM, KOCHI. 3 ISSUE IS NOW DECIDED AGAINST THE ASSESSEE BY THE DE CISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. RAJIV BHATARA - 310 ITR 105. THEREFORE, THE APPEAL OF THEE ASSESSEE IS TO BE DISMISSED ON MERITS ALSO, IS THE ARGUMENT OF THE LD. CIT., DR. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PRE CEDENTS. THE LD. CIT(APPEALS) HAS NOT GIVEN ANY SPECIFIC REA SON AS TO WHY THE CONDONATION PETITION FILED BY THE ASSESSEE SHOULD NOT BE ACCEPTED. IN THE ABSENCE OF ANY FINDING TH AT THE PETITION FOR CONDONATION IS MALAFIDE WITH ULTERIOR MOTIVE TO DRAG THE PROCEEDINGS, THE DELAY IS ONLY A PROCEDURA L, WHICH IS REQUIRED TO BE CONSIDERED IN THE LIGHT OF THE ME RITS OF THE CASE. 5. ON MERITS, THE RECENT DECISION OF THE SUPREME CO URT IN THE CASE OF IMPROVEMENT TRUST VS. UJAGAR SINGH DATED WEDNESDAY AUGUST 11, 2010 (ITATONLINE.ORG) SUPPORTS THE CONTENTION OF THE LD. COUNSEL FOR THE CONDONATION O F DELAY. THEREFORE, WE HAVE NO HESITATION IN CONDONING THE D ELAY. HENCE, THE ORDER OF THE LD. CIT(APPEALS) IS REVERSE D AND THE IT(S&S)A NO. 18/COCH/2007 ROSARY PREM, KOCHI. 4 APPEAL IS RESTORED TO THE FILE OF THE LD. CIT(APPE ALS) FOR DECISION ON MERITS. 6. HOWEVER, ON MERITS THE ISSUE IS NOW SETTLED BY T HE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RAJIV BHATARA - 310 ITR 105 , IN FAVOUR OF THE DEPARTMENT AND AGAINST THE ASSESSEE. THEREFORE, AGAIN REMITTING THE APPEAL BACK TO THE FILE OF THE LD. CIT(APPEALS) WILL NOT SERVE ANY PURPOSE. HENCE, FOLLOWING THE DECISION OF THE APEX COURT IN THE CASE OF CIT VS. RAJIV BHATARA, CITED ABOVE, THE ISSUE IS DECIDED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. H OWEVER, THE ASSESSEE IS AT THE PRIVILEGE TO MOVE NECESSARY APPLICATION KNOWN UNDER THE PROCESS OF LAW, IF ANY MISTAKE HAS BEEN POINTED OUT AFTER THE DECISION OF THE HON BLE SUPREME COURT ON REFERENCE TO THE LARGER BENCH, AS STATED EARLIER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE FAILS AND THE SAME IS DISMISSED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 14 TH OCTOBER,2010. PM. IT(S&S)A NO. 18/COCH/2007 ROSARY PREM, KOCHI. 5 COPY FORWARDED TO: 1. SMT. ROSARY PREM, LAKSHMI, KK VISWANATHAN ROAD, KARUVELIPADY, KOCHI-5. 2. THE DY. COMMISSIONER OF INCOME-TAX, CEN.CIR.2, KOC HI-18. 3. CIT(A)-I, KOCHI. 4. CIT,CENTRAL. KOCHI. 5. D.R.