Sh. Kailash Chandra Jain Prop., Agra V. A.C.I.T., Circle-1(1), Agra

MA 18/AGR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0420 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUNNA LAL AGARWAL
• Assessee Lawyers: KK MISHRA
• Keywords: Reasonable cause; Corroborative evidences; Non compliance; Condonation of delay
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 18/AGRA/2013 (IN ITA NO. 248/AGRA/ 2012) ASSESSMENT YEAR 2007-08 SHRI KAILASH CHANDRA JAIN (PROP.) VS. ASSTT. CIT DIAMOND EXPORT, MILLENIUM HOUSE CIRCLE(1) AGRA FATEHABAD ROAD, AGRA (PAN ABLPJ 3207 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MUNNA LAL AGARWAL, C.A . ASSESSEE BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 12.07.2013 DATE OF PRONOUNCEMENT : 19.07.2013 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE FOR RECALLING OF THE EARLIER ORDER OF THE TRIBUNAL DATED 12.10.2012 WHEREBY APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 2 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE A.O. COMPUTED INCOME OF THE ASSESSEE AT RS.12,29,940/-. THE LD. CIT(A) OUT OF D ISALLOWANCE OF RS.4,71,370/- REDUCED THE ADDITION BY RS.1,03,701/- . THEREFORE, THE ASSESSEE CHALLENGED THE DISALLOWANCE OF LOOM EXPENSES IN A S UM OF RS.3,67,669/- IN APPEAL. 3. ACCORDING TO SECTION 253(6)(C) OF THE INCOME TAX ACT WHEN THE APPEAL IS FILED BEFORE THE APPELLATE TRIBUNAL BY THE ASSES SEE, THE SAME SHALL BE ACCOMPANIED BY PROPER FEE AND IN THE CASE OF THE AS SESSEE, THE ASSESSEE WAS REQUIRED TO PAY TRIBUNAL FEE IN A SUM OF RS.10,000/ -. HOWEVER, THE ASSESSEE HAS PAID THE TRIBUNAL FEE IN A SUM OF RS.3,680/- AN D FAILED TO DEPOSIT THE BALANCE TRIBUNAL FEE IN A SUM OF RS.6,320/-. THE AS SESSEE WAS NOTIFIED OF THE DEFECT IN THE APPEAL, AS NO PROPER TRIBUNAL FEE HAS BEEN PAID, VIDE LETTER DATED 11.07.2012, BUT THE ASSESSEE DID NOT DEPOSIT THE BA LANCE TRIBUNAL FEE. WHEN THE APPEAL WAS FIXED FOR HEARING ON 09.10.2012, AGA IN THE ASSESSEE WAS INTIMATED THAT THE BALANCE FEE OF RS.6,320/- HAS NO T BEEN PAID, BUT THE ASSESSEE DID NOT PAY ANY HEED TO THE NOTICE OF THE TRIBUNAL AND DID NOT DEPOSIT T HE BALANCE FEE. DESPITE NOTIFYING THE DEFECT IN THE AP PEAL PAPER TWICE BY THE REGISTERED POST, THE ASSESSEE DID NOT TAKE ANY STEP IN THE MATTER. THEREFORE, THE APPEAL OF THE ASSESSEE WAS LIABLE TO BE DISMISSED I N LIMINE. FURTHER, THE APPEAL M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 3 OF THE ASSESSEE WAS TIME BARRED BY 11 DAYS AND MERE LY IT IS STATED IN THE APPLICATION FOR CONDONATION OF DELAY THAT COUNSEL F OR THE ASSESSEE WAS BUSY FOR AUDIT AND HE FORGOT TO FILE APPEAL IN TIME. IT WAS A GENERAL ASSERTION WITHOUT SUPPORTING EVIDENCE. THEREFORE, IT WAS HELD THAT TH E SAME REASON IS NOT SUFFICIENT FOR CONDONATION OF DELAY. 4. IN THE RESULT, THE APPEAL WAS DISMISSED IN LIMIN E ON BOTH THE ABOVE REASON, VIDE ORDER DATED 12.10.2012. 5. THE ASSESSEE HAS NOW FILED THE PRESENT MISCELLAN EOUS APPLICATION STATING THEREIN THAT WHEN THE ASSESSEE RECEIVED PEN ALTY NOTICE FROM THE A.O., HE CAME TO KNOW ABOUT HIS APPEAL WAS DISMISSED BY T HE TRIBUNAL ON 12.10.2012. IT IS STATED IN THE APPLICATION THAT AS SESSEE HAS NOT RECEIVED ANY NOTICE AS STATED IN THE ORDER AND IT MAY BE THAT TH E NOTICE WAS HANDED OVER TO THE SECURITY GUARD OR PEON WHO COULD NOT HAND OVER TO THE OFFICE OF THE ASSESSEE. IT IS, THEREFORE, STATED THAT EX-PARTE OR DER MAY BE RECALLED. HE HAS RELIED UPON THE ORDER OF THE ITAT MUMBAI BENCH IN T HE CASE OF DHARMESH PANDIT VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CE NTRAL CIRCLE-12, MUMBAI, [2013] 33 TAXMANN.COM 334(MUMBAI TRIB.). M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 4 6. THE LD. D.R. SUBMITTED THAT THE ASSESSEE HAS FAI LED TO RECTIFY DEFECT IN THE APPEAL PAPERS AS NO PROPER TRIBUNAL FEE HAS BEE N PAID DESPITE SERVICE OF THE NOTICE AND A VAGUE EXPLANATION WAS GIVEN OF THE APPEAL COULD NOT BE FILED ON TIME AND DESPITE SERVICE OF THE NOTICE THE ASSES SEE DID NOT APPEAR TO ARGUE THE APPEAL, THEREFORE, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE MAY BE DISMISSED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE A SSESSEE TILL TODAY DID NOT PAY PROPER TRIBUNAL FEE FOR THE PURPOSE OF FILING OF TH E APPEAL BEFORE THE TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE EVEN DURING THE COURSE OF ARGUMENT DID NOT SATISFY IF THE BALANCE TRIBUNAL FEE IN A SUM OF RS. 6,320/- HAS BEEN PAID BY THE ASSESSEE. HE HAS SUBMITTED THAT THE ASSESSEE WOULD PAY TRIBUNAL FEE LATER ON. THE APPLICATION FOR CONDONATION OF DELAY WAS FILED WITH GENERAL ASSERTION WITHOUT SUPPORTED BY ANY EVIDENCE OR MATERIAL. MERE LY BECAUSE COUNSEL WAS BUSY IN AUDIT IS NO GROUND FOR CONDONATION OF DELAY IN THE MATTER. ACCORDING TO ORDER XVII RULE (2)(B) OF CPC, THE FACT THAT PLE ADER OF A PARTY IS ENGAGED IN ANOTHER COURT, SHALL NOT BE A GROUND FOR ADJOURN MENT. NOW THE ASSESSEE SUBMITTED THAT NO NOTICE HAS BEEN RECEIVED AS MENTI ONED IN THE ORDER OF THE TRIBUNAL AND IT MAY BE THAT NOTICE WAS HANDED OVER TO THE SECURITY GUARD OR M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 5 PEON WHO COULD NOT HANDOVER THE SAME TO THE OFFICE OF THE ASSESSEE. THUS, THERE IS NO SPECIFIC DENIAL BY THE ASSESSEE THAT TH E NOTICE OF THE HEARING WAS NOT RECEIVED BY THE ASSESSEE OR AUTHORIZED PERSON/E MPLOYEE. LD. COUNSEL FOR THE ASSESSEE ADMITTED THAT BOTH THE NOTICES ISSUED BY THE OFFICE OF THE TRIBUNAL HAVE BEEN ISSUED AT THE CORRECT ADDRESSES OF THE AS SESSEE. ACCORDING TO RECORD, THE NOTICE DATED 11.07.2012 AND 16.08.2012 (WELL IN ADVANCE) ISSUED FOR 09.10.2012 HAVE NOT BEEN RETURNED BY THE POSTAL AUT HORITIES TO THE OFFICE OF THE TRIBUNAL. BOTH THE ABOVE NOTICES WERE SENT THRO UGH REGISTERED POST AT THE CORRECT ADDRESSES OF THE ASSESSEE BY PROPERLY ADDRE SSING AND PRE PAYING THE POSTAL CHARGES. THEREFORE, ACCORDING TO SECTION 27 OF THE GENERAL CLAUSES ACT BOTH THE REGISTERED COVERS ARE DEEMED TO HAVE BEEN SERVED UPON ASSESSEE AT THE CORRECT ADDRESSES. THE ASSESSEE HAS NOT MADE AN Y EFFORTS TO OBTAIN ANY CERTIFICATE OF THE POSTAL AUTHORITIES THAT NO NOTIC ES HAVE BEEN SERVED UPON ASSESSEE. THEREFORE, IT IS UNBELIEVABLE THAT THE NO TICES HAVE NOT BEEN SERVED UPON ASSESSEE. FURTHER THE ASSESSEE IN THE MISCELLA NEOUS APPLICATION HAS STATED THAT IT MAY BE THAT NOTICE WAS HANDED OVER TO THE S ECURITY GUARD OR PEON OF THE ASSESSEE, WHICH COULD NOT BE HANDED OVER TO THE ASS ESSEE. THE SECURITY GUARD AND PEON ARE EMPLOYEES OF THE ASSESSEE AND SERVICE UPON THEM IS ALSO DEEMED TO SERVICE UPON ASSESSEE IN THE ORDINARY COURSE OF BUSINESS. FURTHER, THERE IS M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 6 NO SPECIFIC DENIAL IN THE MISCELLANEOUS APPLICATION OF SERVICE OF THE NOTICE DATED 11.07.2012 THROUGH WHICH ASSESSEE WAS NOTIFIE D OF THE DEFECT IN THE APPEALS PAPERS THAT BALANCE TRIBUNAL FEE OF RS.6,34 0/- HAVE NOT BEEN PAID BY THE ASSESSEE. ACCORDING TO RULE 4A OF THE APPELLATE TRIBUNAL RULES THE REGISTRAR WILL POINT OUT THE DEFECT IN THE APPEALS TO THE PARTIES REQUIRING THEM TO RECTIFY BY AFFORDING REASONABLE OPPORTUNITY AND IF WITHIN THE TIME SO GRANTED DEFECTS ARE NOT RECTIFIED, TO OBTAIN THE OR DER OF THE BENCH FOR RETURN OF THE APPEALS AND APPLICATION. SINCE THERE IS NO DENI AL OF SERVICE OF THE NOTICE DATED 11.07.2012 SPECIFICALLY IN THE MISCELLANEOUS APPLICATION, THEREFORE, THE APPEAL OF THE ASSESSEE WAS CORRECTLY DISMISSED AS N O PROPER TRIBUNAL FEE HAS BEEN PAID. 8. IN VIEW OF THE ABOVE DISCUSSIONS, WE DO NOT FIND IF THE ASSESSEE HAS BEEN ABLE TO MAKE OUT THAT THERE WAS SUFFICIENT CAU SE FOR NON-APPEARANCE ON THE DATE OF HEARING. LD. COUNSEL FOR THE ASSESSEE R ELIED UPON THE ORDER OF THE ITAT MUMBAI BENCH IN THE CASE OF DHARMESH PANDIT (S UPRA) IN WHICH THE DATE OF HEARING WAS MENTIONED IN THE ACKNOWLEDGEMEN T SLIP OF FILING OF THE APPEAL, WHICH WAS ABOUT TEN MONTHS BEFORE THE DATE OF HEARING WHICH WAS CONSIDERED TO BE TENTATIVE DATE. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE MISCELLANEOUS APPLICATION OF THE ASSES SEE WAS ALLOWED FINDING M.A NO.18/AGRA/2013 IN ITA NO.248/AGRA/2012 A.Y. 2007-08 7 REASONABLE CAUSE FOR NON COMPLIANCE. IT IS NOT APPL ICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. CONSIDERING THE ABOVE DISCUSSIONS, WE DO NOT FIND A NY MISTAKE APPARENT ON THE RECORD OF THE TRIBUNAL, THE MISCELLANEOUS AP PLICATION OF THE ASSESSEE IS ACCORDINGLY DISMISSED. 10. M.A. OF THE ASSESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (A.L. GEHLOT) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER AMIT/ COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY