Shri Rajeev Agarwal, Agra V. D.C.I.T., Central Circle, Agra

ITSSA 2/AGR/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7770 (ITAT-AGRA)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 25-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER IT(SS)A. NO. 02/AGRA/2011 BLOCK PERIOD : 01.04.89 TO 16.02.2000 SHRI RAJEEV AGARWAL, VS. D.C.I.T., CENTRAL CIRC LE, B-619, KAMLA NAGAR, AGRA. AGRA. (PAN : ABIPA 0813 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. DR DATE OF HEARING : 15.03.2012 DATE OF PRONOUNCEMENT : 23.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), DEHRADUN (CAMP AT AGRA) DATED 01.03.2011 FOR THE AB OVE BLOCK PERIOD, CHALLENGING THE LEVY OF PENALTY U/S. 158BFA(2) OF THE I.T. ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO V IDE SEPARATE ORDER IMPOSED PENALTY U/S. 158BFA(2) OF THE I.T. ACT VIDE ORDER D ATED 23.02.2006. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND IN APPEA L PAPERS, THE DATE OF SERVICE OF PENALTY ORDER WAS MENTIONED AS 27.02.2006. HOWEVER, AS PER APPEAL PAPERS FILED BEFORE THE LD. CIT(A), THE APPEAL IS STATED TO HAVE BEEN FILED ON 04.04.2006. IT(SS)A. NO. 02/AGRA/2011 2 ACCORDING TO SECTION 249(2), THE APPEAL BEFORE THE LD. CIT(A) COULD BE PRESENTED WITHIN 30 DAYS OF THE DATE OF SERVICE OF THE ORDER APPEALED. THE LD. CIT(A) IN THE IMPUGNED ORDER MENTIONED THAT SINCE APPEAL FILED IN FORM 35 IS OUT OF TIME AND NO REQUEST IS MADE ON RECORD FOR CONDONATION OF DELAY, THEREFORE, THE APPEAL IS NOT EVEN MAINTAINABLE. THE LD. CIT(A), HOWEVER, WENT ON TO DECIDE THE APPEAL ON MERITS ALSO AND CONSIDERING THE EXPLANATION OF THE ASSESSEE, THE APPEAL WAS DISMISSED AND PENALTY ORDER WAS CONFIRMED. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE DELA Y IN FILING THE APPEAL. THEREFORE, THE MATTER MAY BE REMANDED TO THE FILE OF LD. CIT(A ) FOR DECIDING THE APPEAL AFRESH. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMI TTED THAT THE ASSESSEE CHALLENGED THE IMPUGNED ORDER ON MERIT BEFORE THE TRIBUNAL BEC AUSE NO AUTHORIZATION OF SEARCH WAS ISSUED IN THE NAME OF ASSESSEE. AS SUCH, PENALTY IS NOT LEVIABLE AND ADDITION WAS MADE ON ESTIMATED BASIS. THE LD. COUNS EL FOR THE ASSESSEE, HOWEVER, ADMITTED THAT NO GROUND IS RAISED IN THE GROUNDS OF APPEAL CHALLENGING THE ORDER OF LD. CIT(A) HOLDING THAT THE APPEAL OF THE ASSESSEE BEFORE HIM WAS TIME BARRED AND AS SUCH NOT MAINTAINABLE. 4. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE LD. CIT(A) IN HOLDING THE APPEAL OF THE ASSESSEE TO BE TIME BARRE D AND SUBMITTED THAT AFTER IT(SS)A. NO. 02/AGRA/2011 3 HOLDING THE APPEAL OF THE ASSESSEE AS TIME BARRED, THE LD. CIT(A) SHOULD NOT HAVE DECIDED THE APPEAL ON MERITS. THE LD. DR SUBMITTED THAT SINCE THE FINDING OF LD. CIT(A) IN THIS REGARD HAS NOT BEEN CHALLENGED BEFOR E THE TRIBUNAL, THEREFORE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. AS PER DETAILS GIVEN IN FORM NO. 35 OF APPEAL FILED BEFORE THE LD. CIT(A), THE IMPUGNED PENALTY ORDER WAS SERVED UPON THE ASSESSEE ON 27.02 .2006 AND THE APPEAL WAS PREFERRED BEFORE THE LD. CIT(A) ON OR AFTER 04.04.2 006. AS SUCH, THE LD. CIT(A) CORRECTLY NOTED IN THE APPELLATE ORDER THAT THE APP EAL IS TIME BARRED BECAUSE THE APPEAL IS NOT FILED WITHIN PRESCRIBED PERIOD OF 30 DAYS. ACCORDING TO SECTION 249(3), THE LD. CIT(A) COULD ADMIT THE APPEAL AFTER THE EXPIRY OF SUCH PERIOD IF HE WAS SATISFIED THAT THE ASSESSEE HAD SUFFICIENT CAUS E FOR NOT PRESENTING THE APPEAL WITHIN THAT PERIOD. THE LD. CIT(A), HOWEVER, NOTED IN THE APPELLATE ORDER THAT NO REQUEST IS MADE ON RECORD FOR CONDONATION OF DELAY IN FILING THE APPEAL BEYOND THE PERIOD OF LIMITATION. AS SUCH, THE APPEAL OF THE AS SESSEE WAS CLEARLY TIME BARRED AND THE LD. CIT(A) RIGHTLY HELD THE APPEAL OF THE A SSESSEE AS NON-MAINTAINABLE. THE ASSESSEE HAS NOT CHALLENGED THE FINDING OF THE LD. CIT(A) IN THE GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL. NO MATERIAL OR EVIDENCE IS FILED TO EXPLAIN THE DELAY IN FILING THE APPEAL AND AS SUCH, THE REQUEST OF THE L D. COUNSEL FOR THE ASSESSEE FOR REMANDING THE MATTER TO THE FILE OF LD. CIT(A) IN T HIS REGARD CANNOT NOT BE ALLOWED. IT(SS)A. NO. 02/AGRA/2011 4 SINCE THE APPEAL OF THE ASSESSEE WAS TIME BARRED BE FORE THE LD. CIT(A) AND THERE IS NO CHALLENGE TO THE SAID FINDING BEFORE US, WE ARE OF THE VIEW THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AND IS LIABLE TO BE DI SMISSED ON THIS GROUND ALONE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS DISMISSE D. HOWEVER, WE MAY NOTE THAT THE LD. CIT(A) EXCEEDED HIS JURISDICTION IN DECIDIN G THE APPEAL ON MERIT ALSO AFTER RECORDING THE ABOVE FINDINGS OF APPEAL BEING TIME BARRED. SUCH A COURSE ADOPTED BY THE LD. CIT(A) IS NOT PERMISSIBLE UNDER LAW AND AS SUCH, THE LD. CIT(A) SHOULD BE CAREFUL IN TAKING UP SUCH A MATTER. WITH THESE O BSERVATIONS, THE APPEAL OF THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY