M/s Haritha Constructions, Tanuku V. The ITO, Ward-1, Tanuku

MA 22/VIZ/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6759 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TH L PETER
• Assessee Lawyers: C V S MURTHY
• Keywords: Bonafide belief; Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH: VISAKHAPATNAM BEFORE: SRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SRI B.R. BASKARAN, ACCOUNTANT MEMBER M.A.NO.17/VIZAG/2011 (ARISING OUT OF I.T.A. NO.443/VIZAG/2009) ASSESSMENT YEAR : 2006-07 SRI CH. RAVI VARMA TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AEXPC 4947D M.A. NO.18/VIZAG/2011 (ARISING OUT OF I.T.A. NO.444/VIZAG/2009) ASSESSMENT YEAR : 2006-07 CHERUKURI BHUVANESWARI TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.ADZPC 8107A M.A. NO.19/VIZAG/2011 (ARISING OUT OF I.T.A. NO.445/VIZAG/2009) ASSESSMENT YEAR : 2006-07 IKEA BUILDING MATERIAL WORLD TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AABFI 9573P M.A. NO.20/VIZAG/2011 (ARISING OUT OF I.T.A. NO.446/VIZAG/2009) ASSESSMENT YEAR : 2006-07 IKEA CONSTRUCTIONS (P) LTD TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AABCI 5747E M.A. NO.21/VIZAG/2011 (ARISING OUT OF I.T.A. NO.447/VIZAG/2009) ASSESSMENT YEAR : 2006-07 2 IKEA CONSTRUCTIONS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AABFI 9688K M.A. NO.22/VIZAG/2011 (ARISING OUT OF I.T.A. NO.448/VIZAG/2009) ASSESSMENT YEAR : 2006-07 HARITHA CONSTRUCTIONS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AAEFH 5244B M.A. NO.23/VIZAG/2011 (ARISING OUT OF I.T.A. NO.449/VIZAG/2009) ASSESSMENT YEAR : 2006-07 ISWARYA CONSTRUCTIONS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AACFI 2170H M.A. NO.24/VIZAG/2011 (ARISING OUT OF I.T.A. NO.450/VIZAG/2009) ASSESSMENT YEAR : 2006-07 MAA BUILDERS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AACFI 2170H M.A. NO.25/VIZAG/2011 (ARISING OUT OF I.T.A. NO.451/VIZAG/2009) ASSESSMENT YEAR : 2006-07 IKEA-VI CONSTRUCTIONS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AACFI 2105G M.A. NO.26/VIZAG/2011 (ARISING OUT OF I.T.A. NO.452/VIZAG/2009) ASSESSMENT YEAR : 2006-07 IKEA-II CONSTRUCTIONS TANUKU VS. ITO WARD-1 TANUKU (APPELLANT) (RESPONDENT) PAN NO.AABFI 9687G 3 APPELLANT BY : SHRI C.V.S. MURTHY, CA RESPONDENT BY : SHRI TH.L. PETER, CIT(DR) O R D E R PER BENCH :- IN THESE MISCELLANEOUS APPLICATIONS, ALL THE ASSE SSEES SEEK RECALL OF COMMON ORDER DATED 12-11-2010 PASSED BY THIS BENCH IN THEIR HANDS. 2. THE REASONS WHICH LED THESE ASSESSEES TO FI LE THESE MISCELLANEOUS APPLICATIONS ARE SET OUT IN BRIEF. ALL THE RELEVAN T APPEALS FILED BY THESE ASSESSEES WERE POSTED FOR HEARING ON 10.11.2010. HOWEVER, TH E COUNSEL FOR THE ASSESSEE HAD MOVED A PETITION SEEKING ADJOURNMENT OF ALL THE CASES. HOWEVER, ON THE DATE OF HEARING, IT WAS NOTICED BY THE BENCH THAT A LL THESE APPEALS WERE BARRED BY LIMITATION AND THESE ASSESSEES DID NOT FILE ANY PETITION FOR CONDONING THE DELAY, THOUGH THE REGISTRY HAD POINTED OUT THE SAID DEFECT TO THEM. HENCE THE TRIBUNAL, VIDE ITS COMMON ORDER DATED 12-11-2010, D ISMISSED THE SAID APPEALS IN LIMINE AS THEY WERE BARRED BY LIMITATION. NOW, BY FILING THESE MISCELLANEOUS APPLICATIONS, THESE ASSESSEES SEEK RECALL OF THE AB OVE SAID ORDER OF THE TRIBUNAL. 3. THE LEARNED AUTHORISED REPRESENTATIVE SUBMIT TED THAT THESE ASSESSEES WERE UNDER BONAFIDE BELIEF THAT THEIR CASES WOULD B E ADJOURNED AS PER THE REQUEST MADE IN THE ADJOURNMENT PETITION FILED BY I TS EARLIER COUNSEL AND THEY WERE ALSO UNDER THE BELIEF THAT THEIR COUNSEL WOULD APPEAR BEFORE THE BENCH ON THE HEARING DATE. HOWEVER, THE BENCH HAS DISMISSED THE APPEAL IN LIMINE, BY CONSIDERING THE FACT THAT THESE ASSESSEES DID NOT F ILE PETITIONS SEEKING CONDONATION OF DELAY. ALL THESE ASSESSEES WERE UND ER BONAFIDE BELIEF THAT THE PETITION SEEKING CONDONATION OF DELAY COULD BE FILE D ON THE DATE OF HEARING. HOWEVER, NO OPPORTUNITY WAS GRANTED TO THESE ASSESS EES TO EXPLAIN THEIR CASE. ACCORDINGLY HE SUBMITTED THAT THESE APPEALS MAY BE RECALLED UNDER RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES. IN THIS R EGARD, THE LEARNED AUTHORISED REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF H ON'BLE GUJARAT HIGH COURT IN THE CASE OF DEVENDRA G. PASALE VS. ACIT ( 236 CTE ( GUJ) 227; 333 ITR 263) AND 4 SUBMITTED THAT THE TRIBUNAL HAS TO CONSIDER RULE 24 WHILE DISPOSING OF THE MISCELLANEOUS PETITIONS OF THESE TYPES. 4. ON THE CONTRARY, THE LEARNED DEPARTMENTAL RE PRESENTATIVE SUBMITTED THAT THE COMMON ORDER PASSED BY THE TRIBUNAL BY DISMISSI NG THE IMPUGNED APPEALS IN LIMINE, FOR WANT OF PETITIONS SEEKING CONDONATION O F DELAY DOES NOT SUFFER FROM ANY MISTAKE AS PROVIDED UNDER SECTION 254(2) OF THE ACT AND HENCE THERE IS NO REQUIREMENT FOR RECALLING THE SAME. HE FURTHER SUB MITTED THAT DECISION RELIED UPON BY THE ASSESSEE IS NOT THAT OF JURISDICTIONAL HIGH COURT. FURTHER IN THAT CASE THE ASSESSEE DID NOT APPEAR BEFORE THE TRIBUNAL UND ER THE BONAFIDE BELIEF THAT HIS PETITION FOR HEARING THE CASE AT A CAMP BENCH W OULD BE ACCEPTED; WHERE AS IN THE INSTANT CASE THERE IS NO NECESSITY OF MAKING SUCH KIND OF REQUEST. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CARE FULLY PERUSED THE RECORD. IN THE INSTANT CASES, THE EX-PARTE ORDER WAS PASSED BY DISMISSING APPEALS FILED BY THE ASSESSEES ONLY FOR THE REASON THAT THE SAID APP EALS ARE BARRED BY LIMITATION AND NO PETITION EXPLAINING THE DELAY WAS FILED. IT IS ALSO A FACT THAT NONE REPRESENTED THE ASSESSEE ON THE DAY OF HEARING THOU GH THE ERSTWHILE COUNSEL HAD MOVED A PETITION SEEKING ADJOURNMENT OF THE CASES. WHEN THESE MISCELLANEOUS APPLICATIONS WERE TAKEN UP FOR HEARING, THE BENCH P OSED A QUESTION TO THE LEARNED AUTHORISED REPRESENTATIVE AS TO WHETHER THE IMPUGNED ORDER OF THE TRIBUNAL CAN BE RECALLED UNDER SECTION 254(2) OF TH E ACT AS THE SAID ORDER DOES NOT SUFFER FROM ANY MISTAKE APPARENT FROM THE RECOR D. IN REPLY THERETO, THE LEARNED A.R HEAVILY PLACED RELIANCE ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF DEVENDRA G PASALE, (SUPRA), WHEREIN THE RELEVANCE OF RULE 24 OF THE APPELLATE TRIBUNAL RULES HAS BEEN DISCUSSED. 6. WE SHALL DISCUSS THE DETAILS OF THE CASE OF DEVENDRA G PASALE, (SUPRA) IN BRIEF. THE ASSESSEE THEREIN PREFERRED APPEAL AGAIN ST THE ORDER OF LEARNED CIT(A) BEFORE THE TRIBUNAL AND THERE WAS A DELAY OF 43 DAY S IN FILING THE SAID APPEAL. THE ASSESSEE THEREIN ALSO DID NOT FILE ANY PETITION EXPLAINING THE DELAY. THE APPEAL WAS POSTED FOR HEARING ON 26-10-2009. IN TH E MEAN TIME, THE CHARTERED 5 ACCOUNTANT OF THE ASSESSEE CAME TO KNOW THAT THE TR IBUNAL IS HOLDING A CAMP BENCH BETWEEN 03-11-2009 AND 13-11-2009. ACCORDING LY, THE COUNSEL FOR THE ASSESSEE MOVED AN APPLICATION ON 12-10-2009 REQUEST ING THE TRIBUNAL TO ACCOMMODATE THE HEARING OF THE ASSESSEES APPEAL AL SO AT THE CAMP BENCH TO BE HELD AT BARODA. THE CASE OF THE ASSESSEE WAS THAT HE WAS UNDER BONAFIDE BELIEF THAT HIS CASE WOULD BE HEARD IN BARODA CAMP AS PER HIS REQUEST AND AT THAT TIME THE PLEA FOR CONDONATION OF DELAY COULD BE MADE. A CCORDINGLY, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING ON 26 .10.2009. HOWEVER, THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON TH AT DATE ON THE GROUND THAT NO SUFFICIENT CAUSE FOR CONDONING THE DELAY HAD BEEN S HOWN BY THE ASSESSEE. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WAS ALSO DISMISSED BY THE TRIBUNAL AND THE FOLLOWING OBSERVATIONS MADE BY THE TRIBUNAL HAVE BEEN EXTRACTED BY THE HIGH COURT : ON CONSIDERATION OF THE RIVAL SUBMISSIONS OF THE PARTIES, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT O N RECORD. THE RECORD REVEALS THAT THE ASSESSEE FILED APPLICATION FOR TAKING UP THE APPEALS AT BARODA CAMP. IN THE APPLICATION IT WAS MENTIONED THAT THE NEXT DATE OF HEARING IS 26 TH OCT., 2009. IT WOULD SHOW THAT THE ASSESSEE WAS AWARE OF THE NEXT DATE OF HEARING FIXE D FOR HEARING OF THE APPEALS. THIS APPLICATION WAS REJECTED BY THE HON'BLE VICE PRESIDENT. THE RECORD FURTHER REVEALS THAT PRIOR T O THAT THE ASSESSEE WAS INTIMATED ABOUT A YEAR BACK ABOUT THE DEFECT IN THE APPEAL PAPERS BECAUSE THE ASSESSEE HAS NOT FILED ANY PETIT ION FOR CONDONATION OF DELAY. THE ASSESSEE DESPITE AWARE O F THE FACT THAT APPEALS ARE TIME BARRED, DID NOT PREFER TO MOVE ANY APPLICATION FOR CONDONATION OF DELAY IN THE MATTER. THE AFFIDAVIT OF SHRI MUKUND BAKSHI, CHARTERED ACCOUNTANT IS FILED IN SUPPORT OF THE MISCELLANEOUS APPLICATIONS. HOWEVER, THE RECORD REVEALS THAT THE RE IS NO POWER OF ATTORNEY OF SHRI MUKUND BAKSHI, CHARTERED ACCOUNTAN T FILED ON RECORD TO SHOW THAT HE EVEN REPRESENTED THE ASSESSEE IN TH E PRESENT APPEALS. THERE IS AN APPLICATION FILED BY SHRI MEH UL K. PATEL, ADVOCATE SEEKING ADJOURNMENT OF EARLIER DATE OF HEARING. IT WOULD, THEREFORE, SHOW THAT SHRI MUKUND BAKSHI, CHARTERED ACCOUNTANT HAS NO CONCERN WITH THE APPEALS ALREADY DECIDED AND WAS NOT AUTHOR ISED TO APPEAR IN THE APPEALS. THE AFFIDAVIT OF SHRI MUKUND BAKSHI, CHARTERED ACCOUNTANT WOULD BE OF NO RELEVANCE. NO FACTS ARE EXPLAINED ABOUT NON-APPEARANCE ON THE DATE OF HEARING OR NOT MOVING PETITION FOR CONDONATION OF DELAY IN AFFIDAVIT. CONSIDERING THE ABOVE DISCUSSIONS, WE FIND THAT TH E TRIBUNAL IN ITS WISDOM, CONSIDERING THE FACTS AVAILABLE ON RECO RD AND PARTICULARLY WHEN THERE WAS NO MATERIAL ON RECORD TO EXPLAIN THE DELAY IN FILING OF 6 THE APPEALS, WAS JUSTIFIED IN DISMISSING THE APPEAL S OF THE ASSESSEE BEING TIME BARRED. THE SUCCEEDING BENCH HAS NO POW ER TO REVIEW EARLIER ORDER OF THE TRIBUNAL. IN THIS VIEW OF THE MATTER, THERE IS NO MISTAKE APPARENT ON RECORD. ALL THE MISCELLANEOUS APPLICATIONS ARE ACCORDINGLY DISMISSED. IN THE APPEAL FILED BY THE ASSESSEE, THE HON'BLE GU JARAT HIGH COURT HAS DWELT UPON THE LEGAL POSITION ON THE FOLLOWING LINES. BEFORE ADVERTING TO THE FACTS OF THE CASE, IT MAY BE PERTINENT TO REFER TO THE PROVISIONS OF R.24 OF THE RULES WHI CH READ THUS: HEARING OF APPEAL EX PARTE FOR DEFAULT OF THE APPELLANT . WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, T HE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HIS NON-APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR HEARING THE TRIBUNAL SHALL MAKE AN ORDER SETTING AS IDE THE EX PARTE ORDER AND RESTORING THE APPEAL. ON A PLAIN READING OF THE FINDINGS RECORDED BY THE TRIBUNAL, IT IS APPARENT THAT THE TRIBUNAL HAS TREA TED THE APPLICATIONS MADE BY THE PETITIONER AS APPLICATIONS UNDER S. 254 OF THE ACT AND NOT UNDER R. 24 OF THE RULES AND HAS APPROACHED THE ISSUE ACCORDINGLY. HOWEVER, THOUGH THE PETITIONER HAS DESCRIBED THE APPLICATIONS AS HAVING BEEN MADE UNDER THE MODE AND MANNER OF MAKING APPLICATIONS, THE FAC T THAT THE SAME HAD BEEN MADE UNDER R. 24 OF THE RULES IS APPARENT WHEN ONE LOOKS AT THE COMMUNICATION DATED 10 TH NOV. 2009, ALONG WITH WHICH THE APPLICATIONS IN QUESTION HAD BEEN SUBMITTED TO THE TRIBUNAL WHEREIN THE PETITIONER HAS SPECIFICALLY REQUESTED THE TRIBU NAL TO CONSIDER ITS APPLICATIONS SYMPATHETICALLY IN THE INTEREST OF JUS TICE AND TO RESTORE THE APPEALS IN TERMS OF R. 24 OF THE RULES FOR THE REASONS MENTIONED IN THE SAID APPLICATIONS. A BARE READING OF THE IMPUGNED ORDER OF THE TRIBUNAL INDICATES THAT THE TRIBUNAL HAS REJ ECTED THE APPLICATIONS ON GROUNDS, WHICH ARE NOT GERMANE WHIL E CONSIDERING APPLICATIONS UNDER R. 24 OF THE RULES. AS TO WHETHER THE APPEALS WERE TIME BARRED AND AS TO WHET HER THE PETITIONER HAD MOVED ANY APPLICATION FOR CONDONATIO N OF 7 DELAY IN THE MATTER ARE NOT CONSIDERATIONS WHICH HA VE ANY RELEVANCE TO AN APPLICATION UNDER R. 24 OF THE RULE S. ON A PLAIN READING OF THE PROVISIONS OF R. 24 OF THE RULES IT IS APPARENT THAT WHILE CONSIDERING AN APPLICATION MADE THERE UNDER, ALL TH AT IS REQUIRED IS THAT THE TRIBUNAL SHOULD BE SATISFIED THAT THERE WA S SUFFICIENT CAUSE FOR NON-APPEARANCE ON THE PART OF THE APPELLANT WHE N THE APPEALS WERE CALLED OUT FOR HEARING. IF IT IS SO SATISFIED , THE TRIBUNAL IS REQUIRED TO MAKE AN ORDER SETTING ASIDE THE EX PART E ORDER AND RESTORING THE APPEALS. ACCORDINGLY THE HON'BLE HIGH COURT HELD THAT THE TR IBUNAL HAS TO EXAMINE AS TO WHETHER THERE WAS SUFFICIENT CAUSE FOR NON-APPEARAN CE OF THE APPELLANT WHEN THE APPEALS WERE CALLED OUT FOR HEARING AS PER THE PROV ISIONS OF RULE 24 OF INCOME TAX APPELLATE TRIBUNAL RULES. 7. WE SHALL NOW TURN TO THE FACTS OF THE INSTAN T CASES. ALL THE ASSESSEES HEREIN HAD ENGAGED A COMMON CHARTERED ACCOUNTANT TO REPRES ENT THEIR CASES AND HE ALSO FILED PETITIONS SEEKING ADJOURNMENT FROM TIME TO TIME. WHEN THE CASES WERE POSTED FOR HEARING ON 10-11-2010 ALSO, THE SAID COU NSEL HAD FILED PETITION SEEKING ADJOURNMENT OF ALL THE CASES TO SOME OTHER DATE. HO WEVER, ON THAT DATE NONE APPEARED ON BEHALF OF THE ASSESSEES. IT WAS POINTE D OUT TO THE BENCH THAT THE APPEALS WERE BARRED BY LIMITATION AND THESE ASSESSE ES HAVE NOT FILED ANY PETITION EXPLAINING THE DELAY. ACCORDINGLY THE BENCH DID NO T CONSIDER THE ADJOURNMENT PETITION AND FURTHER BY TAKING COGNIZANCE OF THE FA CT OF DELAY IN FILING THE APPEALS, THE TRIBUNAL DISMISSED ALL THE IMPUGNED APPEALS IN LIMINE, AS UN-ADMITTED FOR WANT OF PETITIONS EXPLAINING THE DELAY. NOW, IN TH E INSTANT MISCELLANEOUS PETITIONS, IT HAS BEEN SUBMITTED THAT THESE ASSESSE ES WERE UNDER THE BONA FIDE BELIEF THAT THEIR APPEALS WOULD BE ADJOURNED AS PER THE REQUEST MADE BY THE EARLIER COUNSEL AND FURTHER THE SAID COUNSEL WOULD ALSO APPEAR BEFORE THE TRIBUNAL SUPPORTING THE SAID ADJOURNMENT PETITION. WE FIND THE SAID EXPLANATIONS OF THE ASSESSEES TO BE REASONABLE, AS IT IS QUIET N ORMAL FOR ANYBODY TO EXPECT THAT THE COUNSEL ENGAGED BY HIM WOULD APPEAR ON HIS BEHALF. HENCE, IN OUR VIEW, THERE WAS SUFFICIENT CAUSE FOR THEIR NON-APPE ARANCE ON THE DATE WHEN THE APPEALS WERE CALLED OUT FOR HEARING. THE BELIEF OF THE ASSESSEES THAT THE PETITIONS EXPLAINING THE DELAY COULD BE FILED AT TH E TIME OF HEARING COULD NOT ALSO BE RULED OUT ALTOGETHER. 8 8. IN VIEW OF THE FOREGOING DISCUSSIONS, IN EXE RCISE OF THE POWERS VESTED IN US UNDER RULE 24 OF THE APPELLATE TRIBUNAL RULES, WE R ECALL THE COMMON ORDER REFERRED (SUPRA). ACCORDINGLY, THE REGISTRY IS DIR ECTED TO POST THE APPEALS FOR HEARING DURING THE REGULAR COURSE BY DULY INFORMING THE PARTIES. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS F ILED BY THESE ASSESSEES ARE ALLOWED. PRONOUNCED ACCORDINGLY ON 14 TH JUNE, 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE : 14-06-2011 A COPY OF THIS ORDER IS FORWARDED TO : 01 SRI I.S.B. SANKAR (AUDITOR), NEAR HEAD POST OFFI CE, RAILWAY STATION ROAD, TANUKU-534 211. 02 THE ITO, WARD-1, TANUKU 0 3 THE CIT (A ), RAJAHMUNDRY 04 THE CIT, RAJAHMUNDRY 05 THE DR, ITAT, VISAKHAPAATNAM 06 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY ITAT, VISAKHAPATNAM BENCH