SHRI AJAY KUMAR JAIN, AJMER V. ASSISTANT COMMISSIONER OF INCOME TAX (TDS), GHAZIABAD

MA 07/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7028 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 15-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH PORWAL
• Keywords: TDS
• Section: 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 07, 08, 09 & 10/JP/2020 (ARISING OUT OF ITA NO. 52 TO 55/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14, 2014-15 & 2015-16 AJAY KUMAR JAIN PLOT NO. 51, OPP. INDIAN OIL PETROL PUMP, NEAR MUKUND GARDEN, ADARSH NAGAR, AJMER (RAJ.) CUKE VS. ACIT, CPC (TDS), GHAZIABAD LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AANPJ8127A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SUBHASH PORWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/09/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 08/09/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE 4 MISCELLANEOUS PETITIONS FILED BY THE AS SESSEE ARISING OUT OF CONSOLIDATED ORDER PASSED BY THE BENCH IN IT A NO.52-55/JP/2019 DATED 27.11.2019. 2. THE COMMON THREAD RUNNING ACROSS ALL THESE MISCE LLANEOUS PETITIONS IS THAT DUE TO HEALTH AILMENT OF THE ASSE SSEE, THERE WAS DELAY IN FILING THE APPEALS BEFORE THE TRIBUNAL AND THERE FORE, THE DELAY SO HAPPENED MAY BE CONDONED AND THE ORDER SO PASSED AS BARRED BY LIMITATION MAY BE RECALLED TO PROVIDE A FRESH OPPOR TUNITY OF HEARING TO M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 2 THE ASSESSEE AND IN THIS REGARD, AN AFFIDAVIT OF TH E ASSESSEE HAS ALSO BEEN PLACED ON RECORD. IN SUPPORT, RELIANCE WAS PL ACED ON HONBLE SUPREME COURT DECISION IN CASE OF AAKASH LAVLESH LE ISURE (P.) LTD. VS. INCOME-TAX OFFICER [2019] 103 TAXMANN.COM 248 (SC). 3. THE LD. DR IS HEARD WHO HAS SUBMITTED THAT THERE WAS INORDINATE DELAY OF 546 DAYS IN FILING THE APPEALS AND GIVEN T HE FACT THAT THE ASSESSEE HAD NOT SUBMITTED ANY MEDICAL REPORT OR EV EN AN AFFIDAVIT IN SUPPORT OF HIS PRAYER AND ONLY ONE LINER APPLICATIO N WAS FILED BY THE ASSESSEE, THE BENCH HAD RIGHTLY DISMISSED THE APPEA LS FILED BY THE ASSESSEE AS BARRED BY LIMITATION. IT WAS FURTHER SU BMITTED THAT FILING OF AN AFFIDAVIT IN SUPPORT OF HIS PRAYER OF DELAY IN F ILING THE APPEALS DUE TO ILL-HEALTH CANNOT BE ACCEPTED AT THIS STAGE UNDER T HE CURRENT PROCEEDINGS U/S 254(2) WHICH ARE LIMITED TO RECTIFY ING ANY MISTAKE APPARENT FROM RECORD AT THE TIME OF PASSING THE ORD ER BY THE TRIBUNAL. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO MERIT IN THE PRESENT MISC. PETITIONS AND THE SAME SHOULD BE DISMISSED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE RESPECTFULLY GONE THR OUGH THE DECISION OF HONBLE SUPREME COURT IN CASE OF AAKASH LAVLESH LEI SURE (P.) LTD. V. INCOME-TAX OFFICER (SUPRA) AND FIND THAT IN THE SAI D DECISION, THE HONBLE SUPREME COURT HAS HELD THAT DELAY IN FILING THE APPEAL DUE TO HEALTH AILMENT OF THE ASSESSEE CONSTITUTE A SUFFICI ENT CAUSE FOR CONDONING THE DELAY. IN THE INSTANT CASE, THE BENC H, WHILE DISPOSING OFF THE ASSESSEES APPEAL, HAD DULY CONSIDERED THE COND ONATION APPLICATION FILED BY THE ASSESSEE WHERE HE HAS STATED THAT DUE TO HIS HEALTH PROBLEMS, THE APPEAL COULD NOT BE FILED IN TIME. HO WEVER, GIVEN THE FACT THAT THERE WAS NOTHING ON RECORD IN THE FORM OF ANY MEDICAL REPORT FROM M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 3 THE REGISTERED MEDICAL PRACTITIONER OR FROM ANY REC OGNIZED HOSPITAL AND THE FACT THAT THE ASSESSEE HAS NOT EVEN FILED ANY A FFIDAVIT IN SUPPORT OF HIS PRAYER AND MERELY STATING THAT DUE TO BAD HEALT H AND HIGH BLOOD PRESSURE, HE COULDNT FILE THE APPEALS IN TIME, THE BENCH HAD RIGHTLY EXERCISED ITS DISCRETION IN TERMS OF NOT CONDONING THE DELAY OF 546 DAYS IN FILING THE APPEALS. IN THE AFORESAID DECISION OF AAKASH LAVLESH LEISURE(SUPRA), IT WAS A CASE OF CONDONATION OF DEL AY IN FILING THE APPEAL BEFORE THE HONBLE HIGH COURT AND THE ASSESSEE HAD DULY FILED AN AFFIDAVIT IN SUPPORT OF HIS PRAYER STATING THAT EX- CHAIRMAN AND SHAREHOLDER OF THE COMPANY WHO WAS LOOKING AFTER TH E AFFAIRS OF THE ASSESSEE COMPANY WAS SUFFERING FROM HEALTH AILMENT DUE TO WHICH HE WAS HOSPITALIZED AND SUBSEQUENTLY HE DIED, WHICH WA S CONSIDERED BY THE HONBLE SUPREME COURT AND THE DELAY WAS CONDONE D. THE RATIO DECIDENDI OF THE HONBLE SUPREME COURT DECISION (SUPRA) THER EFORE IS NOT TO CONSIDER THE EXPLANATION BLINDLY BUT TO CONS IDER THE EXPLANATION OF THE ASSESSEE REGARDING ILL-HEALTH WHICH IS SUPPO RTED BY AN AFFIDAVIT AND/OR A MEDICAL REPORT AND THE SAME CANNOT BE READ AND UNDERSTOOD TO ACCEPT MERELY AN ASSERTION OF ILL HEALTH EVEN IN ABSENCE OF AN AFFIDAVIT AND/OR A MEDICAL REPORT. FURTHER, EVEN ON PERUSAL OF THE AFFIDAVIT NOW FILED BY THE ASSESSEE, HE HAS MERELY REITERATED WHICH HAS BEEN STATED EARLIER AND HAS STATED THAT DUE TO BAD HEALTH AND HIGH BLOOD PRESSURE, HE WAS ADVISED BED REST BY DOCTOR A ND ACCORDINGLY COULDNT FILE THE APPEAL. TO OUR MIND, SAID ASSERT ION OF THE ASSESSEE HAS ALREADY BEEN CONSIDERED BY THE BENCH EARLIER. IN A NY CASE, AS RIGHTLY POINTED OUT BY THE LD D/R, THE AFFIDAVIT NOW FILED BY THE ASSESSEE CANNOT BE CONSIDERED IN THE PRESENT PROCEEDINGS U/S 254(2) AS THE SCOPE OF THE POWERS OF THE TRIBUNAL IS LIMITED TO R ECTIFY ANY APPARENT MISTAKE ON THE RECORD AND WHILE PASSING THE IMPUGNE D ORDER, EXCEPT FOR A ONE LINER APPLICATION WHICH WAS DULY CONSIDERED T HOUGH NOT ACCEPTED. M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 4 ACCEPTING AN AFFIDAVIT IN SUPPORT OF THE CONTENTION S RAISED EARLIER IS BEYOND THE SCOPE OF OUR POWERS U/S 254(2) AND WE AR E THUS CONSTRAINED NOT TO ACCEPT THE SAME. THEREFORE, WE FIND THAT THERE IS NO MISTAKE WHICH IS APPARENT ON RECORD IN THE FOLLOWIN G FINDING OF THE BENCH WHICH ARE REPRODUCED AS UNDER:- 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS DELAY OF 546 DAYS IN FILING THE PRESENT SET OF FOUR APPEALS FILED BY THE ASSESSEE. IN HIS CONDONATION APPLICATION, THE ASSESSEE HAS STATED TH AT DUE TO HIS HEALTH PROBLEM, THE APPEAL COULD NOT BE FILED IN TI ME. HOWEVER, THERE IS NOTHING ON RECORD IN SUPPORT OF THE PRAYER SO TAKEN BY THE ASSESSEE IN TERMS OF HIS HEALTH PROBLEM EITHER IN THE FORM OF ANY MEDICAL REPORTS FROM THE REGISTERED MEDICAL PRA CTITIONER OR FROM ANY RECOGNIZED HOSPITAL. THE ASSESSEE HAS MERE LY FILED A ONE LINER APPLICATION ON A PLAIN PAPER AND NOT EVEN AN AFFIDAVIT HAS BEEN FILED IN SUPPORT OF HIS PRAYER. THEREFORE, MERELY BASIS ONE LINE APPLICATION SO FILED BY THE ASSESSEE WHICH IS NOT SUPPORTED BY ANY MEDICAL REPORT OR AN AFFIDAVIT AND THUS REMAIN UNSUBSTANTIATED, WE ARE UNABLE TO ACCEDE TO THE REQ UEST OF THE ASSESSEE FOR CONDONING THE DELAY. THE DELAY CANNOT BE CONDONED MERELY BECAUSE THE ASSESSEE'S CASE CALLS FOR SYMPAT HY OR MERELY OUT OF BENEVOLENCE. FOR THE EXERCISE OF DISCRETION IN CONDONING THE DELAY, IT MUST BE ESTABLISHED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY O F NEGLIGENCE ON ITS PART. IT IS NOT A MATTER OF DELAY OF FEW DAY S RATHER THE DELAY HAS HAPPENED FOR 546 DAYS. THEREFORE, IT IS INCUMBE NT ON PART OF THE ASSESSEE TO COME FORWARD AND EXPLAIN THE CIRCUM STANCES WHICH PREVENTED HIM FROM FILING THE APPEAL IN TIME. IT IS ALSO M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 5 NOTED THAT THERE IS CONSISTENT FAILURE ON PART OF T HE ASSESSEE AS APPARENT FROM THE ORDER OF THE LD CIT(A) WHO HAS AL SO REJECTED THE APPEAL FILED BY THE ASSESSEE FOR THE INORDINATE DELAY. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS CLEARLY A FAILURE ON PART OF THE ASSESSEE IN ATTENDING TO THE PRESENT PROCEEDINGS AN D LACK OF DILIGENCE AND INACTION ON HIS PART WHICH COULD HAVE BEEN AVOIDED BY THE ASSESSEE IF IT HAD EXERCISED DUE CARE AND AT TENTION. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE D ISMISSED AS BARRED BY LIMITATION. 5. BEFORE PARTING, WE ALSO TAKE NOTE OF A LETTER D ATED 2.07.2020 SIGNED BY THE ASSESSEE AND FILED WITH THE REGISTRY AND THE CONTENTS THEREOF READ AS UNDER: TO, THE REGISTRAR INCOME TAX APPELLATE TRIBUNAL- JAIPUR BENCH G-4, RAJMAHAL RESIDENCY AREA, C-SCHEME, JAIPUR (RAJ.)-302006 REF- (1) AJAY KUMAR JAIN 23/146, MAHAVIR MARG, KESARGANJ, AJMER A.Y 2015-16 (26Q Q/4 TH ) APPEAL NO. MA 10/JPR/2020 (SMC BENCH) (2) REQUEST FOR ADJOURNMENT FIXED ON 03.07.2020. SIR, THE CAPTION MA IS FIXED FOR HEARING ON 03.07.2020 SINCE THE ASSESSEE INTENDS TO GO FOR VIVAD SE VISHWAS SCHEME OF MINISTRY OF FINANCE AND THUS REQUEST YOU TO ADJOURN THE DATE OF HEARING ON 03.07.2020. THUS IT IS REQUESTED TO KINDLY ADJOURN THE HEARING & OBLIGE. M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 6 THUS IT IS REQUESTED TO KINDLY ADJOURN THE HEARING FIXED ON 03.07.2020 AND OBLIGE. THANKING YOU. YOURS TRULY, DATE: 02/07/2020 (AJAY KUMAR JAIN) 6. ON PERUSAL OF THE ABOVE LETTER, WE THEREFORE FI ND THAT AS PER THE ASSERTION OF THE ASSESSEE, HE WISHES TO OPT FOR THE VIVAD SE VISHWAS SCHEME. ONE OF THE CONDITIONS FOR BEING ELIGIBLE F OR SUCH SETTLEMENT SCHEME IS THAT THE APPEAL OF THE ASSESSEE SHOULD BE PENDING ON THE SPECIFIED DATE BEFORE THE TRIBUNAL AND ONCE, THE AS SESSEES APPLICATION IS ACCEPTED BY THE APPROPRIATE AUTHORITY UNDER THE SAID SCHEME, THE ASSESSEE IS REQUIRED TO WITHDRAW HIS APPEAL BEFORE THE TRIBUNAL. BY FILING THE PRESENT MISC. APPLICATIONS, WE THEREFORE FIND THAT THE ASSESSEE IS TRYING TO REVIVE HIS APPEAL WHICH IS ALREADY DEC IDED AGAINST HIM AND THUS TRYING TO BECOME ELIGIBLE FOR SUCH SETTLEMENT SCHEME. TO OUR MIND, THE ASSESSEE HAS ALL THE RIGHTS TO APPLY FOR THE AF ORESAID SETTLEMENT SCHEME, HOWEVER, ONCE THE APPEAL OF THE ASSESSEE HA S BEEN DISMISSED AND DECIDED AGAINST IT, UNLESS THE MATTER FALLS UND ER THE LIMITED SCOPE OF SECTION 254(2) WHICH IS NOT THE CASE HERE, THE ACT OF THE ASSESSEE TO FILE MISC. APPLICATION TO REVIVE SUCH APPEALS THEREFORE CANNOT BE ENTERTAINED AND ENCOURAGED MERELY FOR ASSESSEE TO BECOME ELIGIB LE FOR SUCH SCHEME. WHERE THE ASSESSEE IS AGGRIEVED WITH THE O RDER OF THE TRIBUNAL, THE ASSESSEE IS AT LIBERTY TO APPROACH TH E RIGHT APPELLATE FORUM AS SO ADVISED BUT CANNOT EXPECT THE TRIBUNAL TO BEC OME A PARTY TO ITS PLAN TO BE ELIGIBLE FOR SUCH SETTLEMENT SCHEME BY A LLOWING ITS PRAYER TO M.A. NO. 7 TO 10/JP/2020 SH. AJAY KUMAR JAIN, AJMER VS. ACIT, GHAZIABAD 7 FIRSTLY RECALL THE ORDER AND THEN, SUBSEQUENTLY ON SUCH RECALL, ALLOW THE WITHDRAW OF THE APPEAL, BEING A CONDITION PRECEDENT FOR SETTLEMENT OF DISPUTE. IN THE RESULT, THE MISCELLANEOUS PETITIONS SO FILE D BY THE ASSESSEE ARE HEREBY DISMISSED IN LIGHT OF ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/09/2020. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. AJAY KUMAR JAIN, AJMER 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CPC (TDS), GHAZIABAD 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 07 TO 10/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR