M/s. Easwaran & Sons Engineers, CHENNAI V. ACIT, CHENNAI

MA 238/CHNY/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5178 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 28-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-08-2016
• Court: TRIBUNAL
• Department Lawyers: M DURAI
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO. 238 /MDS/2016 [IN I.T.A.NO. 1 627 /MDS/2015 ] ASSESSMENT YEAR :20 06 - 07 M/S. EASWARAN & SONS ENGINEERS LTD., NO. VI FLOOR, TEMPLE TOWER, 827, ANNA SALAI, NANDANAM, CHENNAI 600 015. [PAN: AAACE1363P] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE WARD 2 (1), CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI R. VIJAYARAGHAVAN , ADVOCATE / RESPONDENT BY : SHRI M. DURAI PANDIAN , J CIT / DATE OF HEARING : 28 . 1 0 .201 6 / DATE OF P RONOUNCEMENT : 04 . 0 1 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF THIS MISCELLANEOUS PETITION FILED IN SUPPORT OF AN AFFIDAVIT , THE ASSESSEE SEEK S TO GET RECALLED THE ORDER PASSED BY THE TRIBUNAL IN I .T .A. NO. 1 627 /MDS/201 5 DATED 10 . 05 .2016 RELEVANT TO THE ASSESSMENT YEAR 20 06 - 07 . BY REFERRING TO THE AFFIDAVIT FILED BY PETITION ER , THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE PETITIONER HAS INADVERTENTLY OMITTED TO EXPLAIN THE MEDICAL REASON FOR THE DELAY IN FILING THE APPEAL IN THE EARLIER M.P . NO . 238 /M/ 16 2 PETITION FOR CONDONATION OF DELAY AND THEREFORE, HE PLEADED THAT THE DELAY IN FILING OF THE APPEAL IS NEITHER WILFUL NOR DELIBERATE BUT DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL. ACCORDINGLY, HE PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL REJECTING THE CONDONATION PETITION FILED BY THE PETITIONER MAY KINDLY BE RECALLED AND POSTED THE APPEAL FOR HEARING. 2 . ON THE OTHER HAND, T HE LD. DR HAS SUBMITTED THAT AS PER THE UNSIGNED DISCHARGE SUMMARY OF THE DEPART MENT OF CARDIOLOGY OF THE APOLLO HOSPITAL, AND THE AFFIDAVIT FILED BY THE PETITIONER ARE TOTALLY CONTRARY. IN THE AFFIDAVIT, THE PETITIONER CLAIMS THAT HE MET WITH SERIOUS ROAD ACCIDENT ON 05.12.2014 AND SUFFERED RIBS FRACTURE AND FRACTURE OF TOE AND ATTAC HED THE PROOF OF ACCIDENT, HOSPITALIZATION AND INJURY SUFFERED. HOWEVER, THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE FOR HIS SUBMISSION. FURTHER, THE UNSIGNED DISCHARGE SUMMARY OF THE APOLLO HOSPITAL, WHICH PERTAINS TO THE DIAGNOSIS OF TYPE 2 DIABE TES MELLITUS , ETC. , IT WAS MENTIONED UNDER COURSE IN THE HOSPITAL & DISCUSSION THAT HE IS NOW CLINICALLY STABLE AND IS BEING DISCHARGED WITH FOLLOWING MEDICATIONS AND ADVISED TO HAVE A REGULAR FOLLOW UP . IF AT ALL WE TAKE COGNIZANCE OF THE UNSIGNED DIS CHARGE SUMMARY, AGAINST THE FIVE DAYS HOSPITALIZATION, THE DELAY OF 173 DAYS CANNOT BE CONDONED. SINCE THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE FOR ROAD ACCIDENT, ETC., THE PRAYER FOR CONDONING THE DELAY AND RECALLING THE ORDER OF THE TRIBUNAL, AT THIS STAGE CANNOT BE SUSTAINED BEFORE THE LAW AND THE SAME SHOULD BE REJECTED. M.P . NO . 238 /M/ 16 3 3. WE HAVE HEARD BOTH SIDES AND PERUSED THE PETITION AND AFFIDAVIT FILED BY THE ASSESSEE. DURING THE COURSE OF APPEAL PROCEEDINGS, THE ASSESSEE HAS FILED AN AFFIDAVIT FOR C ONDONATION OF DELAY OF 173 DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL, WHEREIN THE ASSESSEE HAS STATED THE ONLY REASON THAT AS I WAS BUSY WITH MY INTERNAL WORK AND FORGOT TO TAKE FURTHER STEPS , AND THE SAME WERE REPRODUCED IN THE ORDER OF THE TRIBU NAL. SINCE NO REASONABLE CAUSE FOR THE DELAY OF 173 DAYS IN FILING THE APPEAL WAS FOUND, THE APPEAL WAS DISMISSED AS NOT MAINTAINABLE. NOW BY MEANS OF PRESENT MP WITH A DIFFERENT REASON IN THE FORM OF ANOTHER AFFIDAVIT, THE LD. COUNSEL FOR THE ASSESSEE HAS PLEADED THAT THE TRIBUNAL ORDER DATED 10.05.2016 MAY BE RECALLED BY CONDONING THE DELAY WITH REASONS AS STIPULATED IN THE SECOND AFFIDAVIT AND PRAYED FOR HEARING OF THE APPEAL. NOW, THE REVISED REASONS STATED IN THE SECOND AFFIDAVIT ARE REPRODUCED AS UNDE R: 1. I AM THE MANAGING DIRECTOR OF THE ABOVE COMPANY AND AM FULLY AWARE OF THE FACTS AND CIRCUMSTANCES WHICH HAVE RESULTED IN DELAY IN FILING THE ABOVE APPEAL. 2. I STATE THAT THE APPELLANT COMPANY HAS BEEN FACING VERY TOUGH TIME FOR THE PAST ONE DEC ADE IN TERMS OF CARRYING OUT THE BUSINESS OPERATIONS DUE TO HEAVY LOSSES SUFFERED AND ALSO FROM ADMINISTRATIVE ANGLE SINCE MOST OF THE EMPLOYEES HAVE LEFT THE ORGANIZATION. THEREFORE, I DIRECTLY TAKE PART AND CONDUCT THE DAY TO DAY AFFAIRS OF THE ORGANIZAT ION. 3. I STATE THAT WITH REFERENCE TO THE APPEAL BEFORE THE IT AT, CHENNAI AGAINST THE ORDER OF THE CIT(A), CHENNAI THE SAME HAS BEEN FILED BELATEDLY BY 173 DAYS DUE TO SITUATIONS BEYOND THE MY CONTROL. THE CIT (A) ORDER VIDE ITA NO. 938/13 - 14 DATED 01 .10.2014 HAS BEEN SERVED ON 24.11.2014 AT OUR OFFICE AND RECEIVED BY OUR OFFICE ASSISTANT, BUT JUST BEFORE THE ISSUE HAS BEEN DISCUSSED WITH THE LEGAL COUNSEL REGARDING THE FURTHER COURSE OF ACTION, I, MET WITH A SERIOUS ROAD ACCIDENT ON 05.12.2014 AND SUF FERED RIBS FRACTURE AND FRACTURE OF TOE. I WAS INITIALLY HOSPITALIZED AND AFTER DISCHARGE WAS M.P . NO . 238 /M/ 16 4 IMMOBILIZED DUE TO THE FRACTURE IN MY RIBS AND HAD BEEN ORDERED COMPLETE BED REST FOR 5 MONTHS. PROOF OF ACCIDENT, HOSPITALIZATION AND INJURY SUFFERED ARE ATTACHE D. SUBSEQUENTLY I SUFFERED A HEART ATTACK IN THE MONTH OF FEBRUARY 2015, THE DETAILS ARE ENCLOSED FOR YOUR KIND REFERENCES. THE HEALTH ISSUES HAD PREVENTED ME FROM ATTENDING TO THE OFFICE AND THEREFORE, ACTION CANNOT BE TAKEN ON THE ORDER OF THE CIT(A) WIT HIN THE STIPULATED TIME. THE ORDER WAS TRACED WHEN I STARTED OFFICE FROM 1ST WEEK OF JULY 2015. IMMEDIATELY THE SAME WAS HANDED OVER TO OUR LEGAL COUNSEL PREPARING THE APPEAL AND THE APPEAL BEFORE ITAT WAS FILED ON 15.07.2015 WITH A DELAY OF ABOUT 173 DAYS . IN THE FIRST PETITION/ AFFIDAVIT FILED FOR CONDONATION OF DELAY THESE SPECIFIC MEDICAL REASONS WHICH PREVENTED TIMEY FILING, WAS INADVERTENTLY OMITTED TO BE MENTIONED. AS CLAIMED BY THE ASSESSEE IN THE AFFIDAVIT HAVING ATTACHED THE PROOF OF ACCIDENT, HOSPITALIZATION AND INJURY SUFFERED, THE ASSESSEE HAS NOT FILED ANY PIECE OF PAPER ON RECORD WITH REGARD TO THE PROOF OF ACCIDENT OR HOSPITALIZATION. FURTHER SUBMISSION IN THE AFFIDAVIT THAT THE ASSESSEE SUBSEQUENTLY SUFFERED A HEART ATTACK IN THE MONTH OF FEBRUARY, 2015 AND DETAILS ARE ENCLOSED ALSO, THE ASSESSEE HAS NOT FILED ANY VALID DOCUMENT. IT MAY BE A N AFTERTHOUGHT FOR THE PURPOSE OF PLEADING FOR CONDONATION OF DELAY AND RECALLING THE ORDER OF THE TRIBUNAL; THE ASSESSEE WAS IN SEARCH OF SOME REASON AND THEREBY FILED THE SAME. OTHERWISE, ATLEAST THE SAME SHOULD HAVE BEEN FILED AT THE TIME OF FILING OF THE ORIGINAL APPEAL. EVEN THE DISCHARGE SUMMARY FILED BY THE ASSESSEE RELATES TO DEPT. OF CARDIOLOGY , DIAGNOSED TYPE - 2 DIABETES MELLITUS, ATRIAL FLUTTER (2013), S/P CARDIOVERSION (2013), RECURRENCE OF ATRIAL FLUTTER AND NORMAL LV FUNCTION AND THIS DEPARTMENT HAS NOTHING TO DO WITH ACCIDENT CASES AND GAVE THE TREATMENT OF THE ABOVE AILMENT . WHATEVER IT MAY, A S RIGHTLY CONTENDED BY THE LD. DR TO REJECT THE MP FILED BY THE ASSESSEE THAT I F AT ALL WE TAKE COGNIZANCE OF THE UNSIGNED M.P . NO . 238 /M/ 16 5 DISCHARGE SUMMARY, AGAINST THE FIVE DAYS HOSPITALIZATION, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS NOT SHOWN ANY SUFFICIENT CAUSE TO CONDONE THE DELAY OF MORE THAN FIV E MONTHS . T HE UNSIGNED MEDICAL DISCHARGE SUMMARY FILED BY THE ASSESSEE CANNOT BE HELD AS A VALID MEDICAL CERTIFICATE. SINCE THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE FOR ROAD ACCIDENT, ETC., THE PRAYER FOR CONDONING THE DELAY AND RECALLING THE OR DER OF THE TRIBUNAL, AT THIS STAGE , CANNOT BE SUSTAINED BEFORE THE LAW AND THE SAME STANDS REJECTED. FURTHER, THE GROUND RAISED BY THE PETITION ER THAT HE HAS INADVERTENTLY OMITTED TO EXPLAIN THE MEDICAL REASON FOR THE DELAY IN FILING THE APPEAL IN THE EARLIER PETITION FOR CONDONATION OF DELAY , CANNOT BE A GROUND TO CONDONE THE DELAY IN FILING THE APPEAL AND ACCORDINGLY, THE GROUND RAISED BY THE PET ITIONER IS DISMISSED. 4. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THE 04 TH JANUARY , 201 7 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 04 . 0 1 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.