G Nagabhushanam, Secunderabad V. ACIT, Hyderabad

ITSSA 28/HYD/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8953 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-08-2010
• Assessment Year: misc
• Appeal Filed On: 03-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A BHASKAR REDDY
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER IT(SS)A NO.28/HYD/2008 ASSESSMENT YEARS (BLOCK PERIOD) 1986-87 TO 1995-96 SHRI G. NAGABHUSHANAM, BALARAI, SECUNDERABAD (PAN ADOPG 3961 B) VS ACIT, PRESENTLY CIRCLE 10(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. RAMA RAO RESPONDENT BY : SHRI A. BHASKAR REDDY O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE ITO DATED 29.1.1997 AND PERTAINS T O THE BLOCK PERIOD COVERING THE PERIOD FROM 1986-87 TO 1995-96 . AT THE OUTSET, THERE WAS A DELAY OF 4294 DAYS IN FILING THIS APPEAL. THE LEARNED COUNSEL FOR THE ASSESSEE FILED A CONDONATION PETITION REQ UESTING FOR CONDONING THE DELAY IN FILING THIS APPEAL AND SUBMITT ED THAT THE ASSESSEE WAS UNABLE TO PAY THE ADMITTED TAX OF RS.2,60,578/-. ORIGINALLY, THE ASSESSEE WENT IN APPEAL AGAINST THE ORDER OF ASSESSING OFFI CER BEFORE THE TRIBUNAL. THIS TRIBUNAL VIDE ITS ORDER DATED 29/11/ 2002 IN IT(SS)A.54/H/97 DISMISSED THE APPEAL OF THE ASSESSEE WITH THE OBSERVATION THAT PRESENT APPEAL IS ACCORDINGLY DISMISSED ON TECHNICAL GROUNDS, WITH THE LIBERTY TO THE ASSESSEE T O FILE AN APPLICATION FOR RECALLING OF THE PRESENT ORDER AFTER M AKING PAYMENT OF ADMITTED TAX, IF SO ADVISED. LATER ON, THE IT(SS)A.28/H/2008 SHRI G. NAGABHUSHANAM, HYDERABAD 2 ASSESSEE PAID THE ADMITTED TAX ON 15.3.2008 AND FILED M ISCELLANEOUS PETITION REQUESTING THE TRIBUNAL FOR RECALLING THE EA RLIER ORDER OF THIS TRIBUNAL. THE TRIBUNAL IN ITS ORDER DATED 27.6.2008 IN MA NO.47/H/2008 DISMISSED THE PETITION SINCE THE ASSESSEE HAS FILED THE MISCEL LANEOUS PETITION BEYOND 4 YEARS FROM DATE OF PASSING THE ORDER . LATER ON ALSO, THE ASSESSEE WAS NOT IN A POSITION TO PAY THE FILING FEE OF THIS TRIBUNAL AND FINALLY WAS ABLE TO PAY THE FILING FEE ONLY ON 1 /12/2008. THEREAFTER, THE ASSESSEE FILED THE PRESENT APPEAL ON 3.12.2008, RESUL TED IN DELAY OF 4294 DAYS AND PRAYED TO CONDONE THE SAME. 2. THE DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED THE ARGUMENTS OF THE AUTHORISED REPRESENTATIVE AND RELIED ON THE ORDER OF THIS TRIBUNAL DATED 14/5/2010 IN ITA NO.110/HYD/2008 IN THE CASE OF AP HOUSING BOARD VS. DIT(E). 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. IN THIS CASE, THERE WAS AN INORDIN ATE DELAY OF 4294 DAYS IN FILING THE APPEAL. THE MAIN CONTENTION OF TH E ASSESSEES COUNSEL IS THAT THE ASSESSEE HAS NO MONEY TO PAY THE ADMITTED TAX AND PRAYED TO CONDONE THE DELAY. ACCORDING TO THE LEARNED COUNSEL, THE ASSESSEE WAS IN GREAT FINANCIAL HARDSHIP, AND AS SUCH, ADMITTED TAX WAS NOT PAID BEFORE FILING THE APPEAL ON EARLIER OCCASIONS. THOUGH THE ASSESSEE HAS TAKEN THIS PLEA IN THE PETITION, NO EVIDENCE OF WHAT SOEVER IS PLACED BEFORE THIS TRIBUNAL EXPLAINING ITS FINANCIAL DIFFICULT IES. WE ARE NOT ABLE TO APPRECIATE THE FINANCIAL HARDSHIPS OF THE ASSESSEE WITHO UT ANY VALID RECORDS BEFORE US TO SUPPORT HIS CLAIM. WE ARE ALSO NOT A BLE TO UNDERSTAND WHETHER THE ASSESSEE IS HAVING SUFFICIENT CASH I N HAND OR BANK BALANCE. NO ASSET AND LIABILITY STATEMENT OR BAN K ACCOUNT DETAILS ARE FILED BY THE ASSESSEE BEFORE US. THE DELAY CANNOT B E CONDONED IT(SS)A.28/H/2008 SHRI G. NAGABHUSHANAM, HYDERABAD 3 SIMPLY BECAUSE THE ASSESSEES CASE IS HARD AND CALLS FOR SYMPATH Y OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF . IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVE D BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NO T GUILTY OF NEGLIGENCE WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CO NTEMPLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYON D THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE CA USE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COUL D HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE, NOR INACTION, OR WAN T OF BONA FIDES CAN BE IMPUTED TO THE ASSESSEE A LIBERAL CONSTRUCTION OF THE P ROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEK ERS OF JUSTICE MUST COME WITH CLEAN HANDS. AS THE PETITION OF THE ASSESSEE CLEARLY SHOWS THAT THE DELAY WAS DUE TO NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY EXERCISING DUE CARE AND ATTENTION. IN OUR OPINION, TH ERE EXISTS NO SUFFICIENT AND GOOD REASON FOR THE INORDINATE DELAY OF 4294 DAYS . ACCORDINGLY, WE DISMISS THE APPEAL OF THE ASSESSEE WITHOUT ADMITTING THE SAME. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT 13 8.2010 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 13 TH AUGUST, 2010 IT(SS)A.28/H/2008 SHRI G. NAGABHUSHANAM, HYDERABAD 4 COPY FORWARDED TO: 1. SHRI G. NAGABHUSHANAM, PLOT NO.4, BALAMRAI, SECUN DERABAD- 500 003. 2. THE ACIT, PRESENTLY CIRCLE 10(1), HYDERABAD 3. CIT, HYDERABAD 4. THE D.R., ITAT, HYDERABAD. NP