Sh. Amit Sharma, Delhi V. The C.I.T., Gwalior

MA 20/AGR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0416 (ITAT-AGRA)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 03-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Assessee Lawyers: K C AGARWAL
• Keywords: Wrong claim; Corroborative evidences; Condonation of delay

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. 20/AGRA/2013 (IN ITA NO. 88/AGRA/ 2009) ASSESSMENT YEAR 2002-03 SHRI AMIT SHARMA VS. THE COMMISSIONER OF INCOME-TAX S/O.SH. OM PRAKASH SHARMA GWAL IOR C/O ALANKAR HOTEL HOSPITAL ROAD, GWALIOR. (PAN AEKPS 1537 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCAT E. RESPONDENT BY : SHRI S.L. MAURYA, SR. D.R . DATE OF HEARING : 26.07.2013 DATE OF PRONOUNCEMENT : 26.07.2013 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS ORDER SHALL DISPOSE OF MISCELLANEOUS APPLICATI ON FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE I.T. ACT FOR R ECALLING OF THE EARLIER ORDER OF THE TRIBUNAL DATED 15.05.2012. M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 2 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE APPEA L OF THE ASSESSEE IN ITA NO. 88/AGRA/2009 WAS TIME BARRED BY 271 DAYS. THE A SSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY STATED THAT AL L THE PAPERS WERE GIVEN TO SRI DEEPAK SHUKLA, ADVOCATE, WHO COULD NOT FILE THE APPEAL WITHIN TIME, AS THE FILE WAS MISPLACED. THE ASSESSEE, THEREFORE, PR AYED THAT THE DELAY MAY BE CONDONED. 3. THE ASSESSEE WAS NOTIFIED OF THE DATE OF HEARING THROUGH REGISTERED POST NOTICE DATED 27.03.2012 FOR THE DATE OF HEARING FIX ED ON 15.05.2012. THE NOTICE WAS SENT AT THE CORRECT DESIRED ADDRESS I.E. THE ADDRESS GIVEN IN PARA 10 OF THE APPEAL PAPERS. THE REGISTERED COVER DID NOT RETURN BACK TO THE OFFICE OF THE TRIBUNAL, THEREFORE, IT WAS DEEMED TO BE SERVED UPON THE ASSESSEE IN ORDINARY COURSE OF BUSINESS. HOWEVER, ON THE DATE O F HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF THE NO TICE. 4. LD. D.R. OBJECTED TO THE REQUEST FOR CONDONATION OF DELAY AND SUBMITTED THAT NO SUFFICIENT CAUSE HAS BEEN EXPLAINED IN THE APPLICATION FOR CONDONATION OF DELAY AND NO EVIDENCE WHATSOEVER IN SUPPORT OF T HE APPLICATION HAS BEEN FILED. IT WAS, THEREFORE, PRAYED BY THE LD. D.R. TH AT APPEAL MAY BE DISMISSED BEING TIME BARRED. THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY IN THE LIGHT OF THE SUBMISSION OF THE LD. D.R. WAS CON SIDERED IN DETAIL AND IT WAS M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 3 FOUND THAT NO SUPPORTING EVIDENCES OR AFFIDAVIT HAV E BEEN FILED, THEREFORE, ASSESSEE FAILED TO EXPLAIN THAT DELAY WAS DUE TO SU FFICIENT CAUSE. SEVERAL CASE LAWS WERE RELIED UPON IN THE ORDER AND IT WAS HELD THAT THE ASSESSEE FAILED TO EXPLAIN THE DELAY IN FILING THE APPEAL WAS DUE TO S UFFICIENT CAUSE, THEREFORE, APPEAL OF THE ASSESSEE WAS DISMISSED BEING TIME BAR RED VIDE ORDER DATED 15.05.2012. 5. THE RECORD REVEALED THAT A TELEGRAM WAS RECEIVED IN THE OFFICE OF THE TRIBUNAL ON 16.05.2012 AT 12.00 NOON FROM THE SIDE OF SRI DEEPAK SHUKLA, ADVOCATE WHO IS REPRESENTING THE ASSESSEE IN THE PR ESENT APPEAL. IT WAS PRAYED IN THE TELEGRAM THAT APPEAL MAY BE ADJOURNED DUE TO ILLNESS OF THE COUNSEL SRI DEEPAK SHUKLA, ADVOCATE. THE SAID TELEGRAM WAS SENT FROM MEERUT TO AGRA. SINCE THE ORDER IN THE APPEAL WAS ALREADY PRONOUNCE D ON 15.05.2012, DISMISSING THE APPEAL OF THE ASSESSEE BEING TIME BA RRED AND THE TELEGRAM OF THE ASSESSEES COUNSEL REACHED OFFICE OF THE TRIBUN AL ON NEXT DAY ON 16.05.2012, THEREFORE, THE REQUEST OF THE ASSESSEE S COUNSEL COULD NOT HAVE BEEN ENTERTAINED AND THE SAME TELEGRAM WAS HOWEVER KEPT ON RECORD. IT WOULD, THEREFORE, PROVE THAT THE REGISTERED COVER CONTAINI NG THE NOTICE OF HEARING FOR 15.05.2012 WAS SERVED UPON ASSESSEE AT ADDRESS GIVE N IN APPEAL PAPERS. M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 4 6. THE ASSESSEE HAS NOW FILED MISCELLANEOUS APPLICA TION IN WHICH THE ASSESSEE CONTENDED THAT NO NOTICE OF HEARING THROUG H REGISTERED POST HAS BEEN RECEIVED BY THE ASSESSEE HENCE ASSESSEE WAS NOT AWA RE OF FIXING OF THE DATE OF HEARING FOR 15.05.2012. THE ASSESSEES ALSO FILED HI S AFFIDAVIT IN SUPPORT OF THE ABOVE AVERMENT AND AFFIRMED IN THE AFFIDAVIT THAT N O NOTICE OF HEARING HAS BEEN RECEIVED BY THE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE EX-PARTE ORDER DATED 15.05.2012 MAY BE RECALLED. 7. ON CONSIDERATION OF ABOVE FACT, WE ARE OF THE VI EW THAT THE APPLICATION AND AFFIDAVIT OF THE ASSESSEE ARE FALSE AND BASED O N FABRICATED FACTS. THE FACTS STATED BY THE ASSESSEE ARE FALSE IN MAKING WRONG AL LEGATION OF NOT RECEIVING THE NOTICE OF HEARING FOR 15.05.2012. WE HAVE ALREA DY NOTED ABOVE THAT THE NOTICE DATED 27.03.2012 WAS DISPATCHED BY REGISTERE D POST AT THE CORRECT ADDRESS AS DESIRED BY THE ASSESSEE FOR THE PURPOSE OF SERVICE OF NOTICE FOR THE DATE OF HEARING FIXED FOR 15.05.2012. THE ADDRESS O F SERVICE OF THE NOTICE IS GIVEN OF THE ASSESSEES COUNSEL IN THE APPEAL PAPER S AND ASSESSEE REQUESTED THAT NOTICE MAY BE SENT AT THE ADDRESS OF HIS COUNS EL. NOTICE THROUGH REGISTERED COVER WAS SENT TO ASSESSEES COUNSEL AT THE ADDRESS GIVEN IN THE APPEAL PAPERS. THE COUNSEL FOR THE ASSESSEE SENT TELEGRAM ON 14.05 .2012 SEEKING ADJOURNMENT DUE TO HIS ILLNESS BUT THE TELEGRAM REA CHED THE OFFICE OF THE M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 5 TRIBUNAL AFTER PASSING OF THE ORDER DATED 15.05.201 2, ON 16.05.2012. IT WOULD, THEREFORE, CLEARLY PROVE THAT NOTICE FOR THE DATE O F HEARING WAS SERVED UPON COUNSEL FOR THE ASSESSEE AS PER REQUEST MADE IN THE APPEAL PAPERS. THE SERVICE OF THE NOTICE UPON THE COUNSEL FOR THE ASSESSEE AS PER APPEAL PAPERS THUS WOULD BE PROPER SERVICE UPON THE ASSESSEE. THE ASSESSEE, THEREFORE, MADE A WRONG CLAIM OF NON SERVICE OF NOTICE IN THE MISCELLANEOUS APPLICATION AS WELL AS IN THE AFFIDAVIT. THE AFFIDAVIT OF THE ASSESSEE IS, TH EREFORE, FALSE AND REQUEST OF RECALLING OF THE EARLIER ORDER DATED 15.05.2012 IS ACCORDINGLY REJECTED. 8. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED T HAT THE DELAY, IF ANY, WAS DUE TO NEGLIGENCE OF THE COUNSEL, THEREFORE, TH E DELAY MAY BE CONDONED. THE REQUEST OF LD. COUNSEL FOR THE ASSESSEE COULD N OT BE CONSIDERED BECAUSE THE APPLICATION FOR CONDONATION OF DELAY HAS BEEN DISPO SED OF ON MERITS BY CONSIDERING THE SEVERAL JUDGMENTS IN THE ORDER OF T HE TRIBUNAL AND IT WAS HELD THAT THE ASSESSEE HAS FAILED TO EXPLAIN DELAY IN FI LING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. IT IS WELL SETTLED LAW THAT THE T RIBUNAL HAS NO POWER TO REVIEW ITS ORDERS PASSED ON MERITS. WE ARE FORTIFIED IN OU R VIEW BY THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF COMMISSI ONER OF INCOME TAX VS. ANAMIKA BUILDERS PVT. LTD. (2001) 251 ITR 585, DECI SION OF THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF COMMISSIO NER OF INCOME TAX VS. M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 6 IDEAL ENGINEERS (2001) 251 ITR 743 AND DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF AGARWAL WAREHOUSI NG AND LEASING LTD. VS. COMMISSIONER OF INCOME TAX (2002) 257 ITR 235. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF HINDUSTAN LEVER LTD. VS. JOINT COMMISSIONER OF INCOME TAX AND OTHERS (2006) 284 ITR 42 (CAL.) HELD THAT THE MISTAKE MUST BE SO OBVIOUS THAT IT CAN EASILY BE CORRECTED, TO W IT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION ETC. AND NOT ON DEBATABL E ISSUE. ONCE THE TRIBUNAL HAS ALREADY TAKEN A VIEW ON MERIT AND REQUEST FOR C ONDONATION OF DELAY HAS BEEN REFUSED AND APPEAL DISMISSED BEING TIME BARRED , THE ORDER COULD NOT HAVE BEEN REVIEWED IN THE MISCELLANEOUS APPLICATION. NO MISTAKE APPARENT ON RECORD HAS BEEN POINTED OUT, THEREFORE, THE REQUEST OF LD. COUNSEL FOR THE ASSESSEE IS ALSO REJECTED. 9. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE WAS SHOW CAUSED AS TO WHY THE COST SHOULD NOT BE IMPOSED WHI LE DISMISSING THE MISCELLANEOUS APPLICATION OF THE ASSESSEE FOR FILIN G FRIVOLOUS MISCELLANEOUS APPLICATION WITH FALSE AFFIDAVIT OF THE ASSESSEE. 10. LD. COUNSEL FOR THE ASSESSEE TENDERED UNCONDITI ONAL APOLOGY AND STATED THAT THE ASSESSEE WAS NOT AWARE OF THE TELEGRAM SEN T BY HIS COUNSEL FOR TAKING ADJOURNMENT, THEREFORE, A LENIENT VIEW MAY BE TAKEN AND NO COST MAY BE M.A NO.20/AGRA/2013 IN ITA NO.88/AGRA/2009 A.Y. 2002-03 7 IMPOSED IN THE INTEREST OF JUSTICE. HE HAS SUBMITTE D THAT ASSESSEE WOULD NOT REPEAT SUCH MISTAKE IN FUTURE AND WOULD BE CAREFUL. WE ACCEPT UNCONDITIONAL APOLOGY TENDERED BY LD. COUNSEL FOR THE ASSESSEE ON BEHALF OF THE ASSESSEE AND DO NOT PROPOSE TO IMPOSE COST WHILE DISMISSING THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 11. IN THE RESULT, M.A. OF THE ASSESSEE IS DISMISSE D. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (A.L. GEHLOT) (BHAV NESH 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