Shri Yatin I. Shah, Vapi V. The Dy.CIT, Central Circle-3, Surat

ITSSA 359/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1823 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 17-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B P K PANDA
• Keywords: Question of law; Reasonable cause; Condonation of delay
• Section: 271(1)(c); 153A

Judgement Text

SHRI YATIN I. SHAH/I.T.(SS)A.NOS.358 & 359/AHD/2014/SRT /A.YS.:2006-07 & 07-08 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.(SS)A NOS.358 & 359/AHD/2014/SRT / A.YS.:2006-07 & 2007-08 SHRI YATIN I. SHAH, AJIT NAGAR, DAMAN ROAD, VAPI 396 191, PAN: AEQPS 9072B V S . DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3, SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI HARDIK VORA, ADV. /REVENUE BY SHRI B.P.K.PANDA, SR.DR / DATE OF HEARING: 1 0 .04 .2018 /PRONOUNCEMENT ON 26 .04.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, AHMEDABAD DATED 05.09.2014 FOR THE ASSESSMENT YEARS 2006-07 & 2007-08 WHICH IN TURN HAS ARISEN FROM THE PENALTY ORDER DATED 29.06.2012 UNDER SECTION 271(1)(C) OF INCOME TAX ACT,1961 ( IN SHORT OF THE ACT) PASSED BY THE ASSESSING OFFICER (IN SHORT THE AO). 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.358/AHD/2014 AS FOLLOWS : 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN NOT CONDONING THE DELAY IN FILING APPEAL BEFORE HIM. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF RS.3,60,000/- 3. IT IS PRAYED THAT ABOVE PENALTY IMPOSED BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. SHRI YATIN I. SHAH/I.T.(SS)A.NOS.358 & 359/AHD/2014/SRT /A.YS.:2006-07 & 07-08 PAGE 2 OF 5 3. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.359/AHD/2014 AS FOLLOWS : 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN NOT CONDONING THE DELAY IN FILING APPEAL BEFORE HIM. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS0 HAS ERRED IN CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) OF RS.1,24,950/-. 3. IT IS PRAYED THAT ABOVE PENALTY IMPOSED BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.13,82,203/- ON 12.03.2010 FOR THE ASSESSMENT YEAR 2006-07 WHICH WAS ASSESSED U/S.143(3) R.W.S. 153A OF THE ACT. A NOTICE U/S.143(2) OF THE ACT WAS ISSUED ON 04.08.2010 AND NOTICE U/S.142(1) OF THE ACT ALONG WITH QUESTIONNAIRE ON 09.09.2010 DULY SERVED TO THE ASSESSEE. IN REPLY TO THE NOTICES STATED ABOVE, LD.COUNSEL FOR THE ASSESSEE ATTENDED AND FILED SUBMISSIONS BEFORE THE LD.DCIT. THE LD.DCIT DULY CONSIDERED THE REPLY OF THE ASSESSEE AND HE FOUND THAT NO COGENT EXPLANATION HAS BEEN FURNISHED BY THE ASSESSEE NEITHER AT THE TIME OF ASSESSMENT PROCEEDINGS NOR DURING PENALTY PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION. MOREOVER, THE ASSESSEE COULD NOT DISCHARGE HIS ONUS OF PROVING THAT THE INCOME/CLAIM RETURNED BY HIM IN HIS RETURN OF INCOME WAS ACCURATE AND BONAFIDE. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 WERE ISSUED ON 29.06.2012 TO THE ASSESSEE FOR FURNISHING INACCURATE PARTICULARS AND CONCEALMENT OF INCOME ON ADDITIONAL UNDISCLOSED INCOME OF RS.12,00,000/- FOR THE YEAR UNDER CONSIDERATION. 5. BEING AGGRIEVED WITH THE AO, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A). HOWEVER, THE LD.CIT(A) OBSERVED THAT THE COPY OF DEMAND NOTICE WHICH SHRI YATIN I. SHAH/I.T.(SS)A.NOS.358 & 359/AHD/2014/SRT /A.YS.:2006-07 & 07-08 PAGE 3 OF 5 WAS FILED BY THE APPELLANT IN APPEAL CARRIED STICKERS OF THE POST OFFICE REGARDING SPEED POST. IN VIEW OF THIS THE APPELLANT WAS ISSUED SHOW CAUSE NOTICE THAT WHY THE APPEALS SHOULD NOT BE DISMISSED AS BEING OUT OF TIME. IN THE COURSE OF PENALTY PROCEEDINGS, FOR BOTH THE YEARS NOTICE DATED 22.05.2012 WAS SENT TO ASSESSEE AND THE ASSESSEE FILED REPLY TO THE SAID NOTICE. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE PENALTY ORDERS WERE PASSED WHICH WERE GETTING BARRED BY LIMITATION ON 30.06.2012. THE APPELLANT WAS BEING ASSISTED BY SHRI SUBHASH KOTADIA, CA AND SO WAS IN THE KNOWLEDGE OF LIMITATION DATE FOR PASSING OF PENALTY ORDER AND THEREBY FOR PASSING OF APPEAL AGAINST SUCH PENALTY ORDER. IT IS SEEN THAT APPELLANT DID NOT TAKE ANY STEP TO FIND OUT ABOUT THE FATE OF PENALTY PROCEEDINGS IN WHICH HE HAD ATTENDED. THU, IT IS A CASE OF GROSS NEGLIGENCE. IT IS SEEN THAT HON'BLE JURISDICTIONAL GUJARAT HIGH COURT IN THE CASE OF JAYVANTSINH VAGHELA VS. ITO REPORTED AS (2013) 40 TAXMANN.COM 491 (GUJ) HELD AS FOLLOWS: UNLESS THERE IS GROSS NEGLIGENCE OR MALA FIDE INTENTION, DELAY IN FILING APPEAL TO BE CONDONE. 6. SO, IT IS SEEN THAT THIS IS A CASE OF GROSS NEGLIGENCE, BESIDES IN THE PRESENT CASE THE APPELLANT WHO IS ASSISTED BY QUALIFIED CHARTERED ACCOUNTANT SIMPLY IGNORED THE STATUTORY ORDERS ISSUED BY ASSESSING OFFICER AND ALSO VARIOUS LIMITATIONS GIVEN IN THE ACT FOR THE PURPOSE OF FILING APPEAL. THE APPELLANT IS REQUIRED TO EXPLAIN NORMALLY EACH DAY OF THE DELAY IN FILING OF APPEAL. AND THE LAW ONLY HELPS THOSE WHO RESPECT IT. IN THE PRESENT CASE, THE ASSESSING OFFICER DULY DISPATCHED THE ORDERS AT THE ADDRESS AVAILABLE WITH HIM, THE SAID ORDERS WERE ALSO NOT RECEIVED BACK AND ARE NOT AVAILABLE IN THE CASE RECORDS AS CONFIRMED BY PRESENT ASSESSING OFFICER. AS THE APPELLANT FAILED TO SHOW THAT THE PENALTY ORDERS SENT BY THE ASSESSING OFFICER AT PROPER ADDRESS THROUGH SPEED POST WERE NOT RECEIVED BY HIM, IT IS HELD THAT THERE WAS VALID SERVICE OF ORDERS LATEST BY SHRI YATIN I. SHAH/I.T.(SS)A.NOS.358 & 359/AHD/2014/SRT /A.YS.:2006-07 & 07-08 PAGE 4 OF 5 05.07.2012 ON THE APPELLANT. THE APPEALS ARE FILED MUCH BEYOND THE PERIOD OF 30 DAYS. THE APPEALS HAVE NOT BEEN FILED ON TIME DUE TO GROSS NEGLIGENCE ON THE PART OF THE APPELLANT. THE DELAY IS QUITE SUBSTANTIAL AND MORE THAN 500 DAYS. IT WAS HELD IN THE CASE OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF ABZONY SAFETY GLASS LTD. VS. CIT (2010) 48 DTR (P & H) 52 : (2012) 344 ITR 471 (P & H) AS FOLLOWS : APPEAL [CIT(A)] CONDONATION OF DELAY-REASONABLE CAUSE-NO SATISFACTORY CAUSE, NOT TO SPEAK OF SUFFICIENT CAUSE, HAS BEEN SHOWN BY THE ASSESSEE FOR THE INORDINATE DELAY OF NEARLY THREE YEARS-ASSERTION OF THE ASSESSEE THAT ITS DIRECTOR WAS NOT KEEPING WELL AND HENCE, HE COULD NOT PURSUE AND ATTEND THE ASSESSMENT PROCEEDINGS AND FILE THE APPEAL BEFORE THE CIT(A) IS NOT CONVINCING AS THE ASSESSEE HAS NOT BEEN ABLE TO FORTIFY THE SAID FACT- FURTHER, THE ORDERS OF THE AO CLEARLY SHOWS THAT THE ASSESSEE HAS NOT EVEN FILED THE RETURN AND HAS NOT BEEN CO-OPERATIVE IN GETTING THE ASSESSMENT FINALIZED-THUS, THE PRAYER FOR CONDONATION OF DELAY HAS NO MERIT-MOREOVER, SUFFICIENCY OR INSUFFICIENCY OF THE REASON FOR THE DELAY WOULD NOT CONSTITUTE A SUBSTANTIAL QUESTION OF LAW. HELD : NO SATISFACTORY CAUSE, NOT TO SPEAK OF SUFFICIENT CAUSE, HAS BEEN SHOWN BY THE ASSESSEE THAT MAY PERSUADE THE COURT TO DIFFER WITH THE CONCLUSION ARRIVED AT BY THE LOWER AUTHORITIES. THE SOLE CONTENTION ON THE STRENGTH OF WHICH THE ASSESSEE WANTS THE COURT TO CONDONE THE DELAY, IS THAT THE ASSESSEE HAD NOT BEEN KEEPING WELL AND HENCE, HE COULD NOT PURSUE AND ATTEND THE ASSESSMENT PROCEEDINGS AND FILE THE APPEAL WITHIN TIME BEFORE CIT(A). HOWEVER, THE ASSERTION OF THE ASSESSEE IS NOT CONVINCING, ESPECIALLY WHEN THE ASSESSEE HAD NOT BEEN ABLE TO FORTIFY THE ABOVE CAUSE. THE PLEA OF THE ASSESSEE HAS NOT BEEN ABLE TO FORTIFY THE ABOVE CAUSE. THE PLEA OF THE ASSESSEE HAS NOT BEEN ACCEPTED TO BE BONAFIDE. FURTHER, THE ORDER OF THE AO ALSO CLEARLY SHOWS THAT THE ASSESSEE HAD NOT BEEN COOPERATIVE IN GETTING THE ASSESSMENT FINALIZED AND HAD NOT EVEN FILED THE RETURN. THE ASSESSEE HAD NOT BEEN APPEARING AND ANSWERING TO THE QUESTIONNAIRE ISSUED BY THE AO. THUS, IN THE FACTS AND CIRCUMSTANCES, THE PRAYER OF THE ASSESSEE FOR CONDONATION OF DELAY IS WITHOUT ANY MERIT. MOREOVER, SUFFICIENCY OR INSUFFICIENCY OF THE REASON WOULD NOT CONSTITUTE ANY SUBSTANTIAL QUESTION OF LAW AND DECISION OF SUCH A QUESTION WOULD DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. CONCLUSION : ASSESSEE HAVING NOT SHOWN ANY SATISFACTORY CAUSE, NOT TO SPEAK OF SUFFICIENT CAUSE FOR THE INORDINATE DELAY OF NEARLY THREE YEARS IN PREFERRING APPEAL BEFORE THE CIT(A) AND FAILED TO FORTIFY ITS ASSERTION THAT ITS DIRECTOR COULD NOT PURSUE AND ATTEND THE ASSESSMENT PROCEEDINGS AND FILE THE APPEAL BEFORE THE CIT(A) DUE TO ILL-HEALTH, CONDONATION OF DELAY COULD NOT BE ALLOWED. 7. BEING AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. 8. THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE HEAVILY RELIED ON THE DECISION OF THE LOWER AUTHORITIES. 9. ON CAREFUL CONSIDERATION OF THE ABOVE FACTS AND CIRCUMSTANCES AND WE PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE DULY ASSISTED BY THE SHRI YATIN I. SHAH/I.T.(SS)A.NOS.358 & 359/AHD/2014/SRT /A.YS.:2006-07 & 07-08 PAGE 5 OF 5 CHARTERED ACCOUNTANT AND DID NOT FILE APPEALS ON TIME FOR NO VALID REASON AND CONSCIOUSLY NEGLECTED IN REPLYING TO THE ORDERS ISSUED BY THE DEPARTMENT FROM TIME TO TIME. THE LD.CIT(A) STRONGLY RELIED IN THE DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF ABZONY SAFETY GLASS LTD. VS. CIT (2010) 48 DTR (P & H) 52 : (2012) 344 ITR 471 (P & H). THE LD.CIT(A), POINTED OUT THAT AS REGARDS PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT ISSUED TO THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS 2006-07 & 2007-08 FOR CONDONATION OF DELAY IS NOT ALLOWABLE BECAUSE OF SHEER NEGLIGENCE AND MALA FIDE ATTITUDE OF THE ASSESSEE. THEREFORE, THE LD.CIT(A) WAS RIGHT IN NOT EVEN ADMITTING THE APPEAL FOR ADJUDICATION. THUS, WE FIND NO INFIRMITY IN THE DECISION OF THE LD.CIT(A), HENCE, WE UPHOLD THE SAME, ACCORDINGLY GROUNDS RAISED BY THE ASSESSEE FOR THE BOTH ASSESSMENT YEARS ARE DISMISSED. 10. IT(SS)A.NO.359/AHD/2014 FOR A.Y. 2007-08: (BY ASSESSEE) SINCE THE F ACTS OF THIS YEAR IS IDENTICAL OF A.Y. 2006-07, HENCE, FOR THE REASONS GIVEN IN APPEAL ORDER FOR A.Y. 2006-07, THIS APPEAL IS ALSO DISMISSED. 11. IN THE RESULT, APPEALS FOR THE ASSESSMENT YEARS 2006-07 & 2007-08 OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26-04-2018. SD/- SD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED: 26 TH APRIL , 2018 S.GANGADHARA RAO COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT