Demi Realtors, Hyderabad, Hyderabad V. ACIT, Circle-8(1), Hyderabad, Hyderabad

MA 3/HYD/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5420 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: J PRABHAKAR
• Keywords: Period of limitation; Condonation of delay
• Section: 132

Judgement Text

MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER MA NO.03/HYD/2017 (ARISING OUT OF ITA NO.649/HYD/2013) (ASSESSMENT YEAR: 2008-09) M/S. DEMI REALTORS HYDERABAD PAN: AAFFD 9401 P VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 8(1) HYDERABAD FOR ASSESSEE : SHRI J. PRABHAKAR FOR REVENUE : SMT. SUMAN MALIK, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS APPLICATION IS FILED BY THE ASSESSEE U/S 254(2 ) OF THE ACT, SEEKING RECTIFICATION OF ALLEGED MISTAKES APPARENT FROM THE ORDER OF THE TRIBUNAL. IN THE M.A, THE ASSESSEE HAS SUBMITTED AS UNDER: 1. THE HON'BLE INCOME TAX APPELLATE TRIBUNAL VIDE ITS ORDER CITED ABOVE AT PAGE 3, PARA 5, HELD AS UNDER: 'SINCE THE ASSESSEE HAS PAID THE BALANCE OF THE TAX SUBSEQUENTLY AND RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN THE CASE OF T. KISHAN VS. ACIT (SUPRA), WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF CIT (A) WITH A DIRECTION TO VERIFY THE PAYMENT OF ADMITTED TAX BY THE ASSESSEE; AND AFTER CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY TO BE FILED BY THE DATE OF HEARING : 10.03.2017 DATE OF PRONOUNCEMENT : 27.03.2017 MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 2 OF 8 ASSESSEE FOR THE DELAY UP TO THE DATE OF PAYMENT OF THE TOTAL OF THE ADMITTED TAX, THE CIT (A) SHALL CONSIDER THE SAME IN ACCORDANCE WITH THE LAW ON MERITS AND IF SUCH DELAY IS CONDONED BY THE CIT (A),. THEN THE CIT (A) SHALL ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERITS. NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING ON ALL THE ABOVE ISSUES.' 2. THERE IS AN APPARENT MISTAKE IN THE DECISION RENDERED AFORESAID, AS REGARDS ALLEGED DELAY TO BE EXPLAINED BY THE APPELLANT UNTIL PAYMENT OF ADMITTED TAXES OF RS.2 LAKHS AS OPPOSED TO THE EX- FACIE APPARENT AND FACTUAL DATE OF FILLING THE APPEAL ON 03.02.2010 WHERE BY ONLY 2 DAYS OF DELAY OUGHT TO BE EXPLAINED AS PRAYED FOR ORIGINALLY IN THE APPEAL BEFORE CIT (A). 3. REFERENCE IS INVITED FOR PROVISION OF CLAUSE (A) OF SUB SECTION(4) OF SECTION 249. WHICH READS AS UNDER:- 'NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNLESS AT THE TIME OF FILING OF THE APPEAL,- (A) WH ERE A RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM; OR' 4. A MERE READING OF THE ABOVE, WOULD REVEAL THAT THE SECTION DOES NOT CONTEMPLATE CONDONATION OF DELAY IN PAYMENT OF TAXES AND THE CONDONATION THEREFORE IS A INVENTION BY SUPERIOR COURTS TO ADVANCE THE CAUSE OF JUSTICE. 5. CATENAE OF DECISIONS ON THIS SUBJECT MATTER WOULD ALSO REVEAL THAT ONCE THE DELAY IN FILING AN APPEAL IS CONDONED ON ACCOUNT OF DELAYED PAYMENT, THE APPEAL GETS RESTORED FOR ADJUDICATION FROM THE DATE OF FILING THE APPEAL, I.E EX-POST FAC TO. 6. IF THE RULE OF PURPOSIVE INTERPRETATION IS NOT FOLLOWED, THEN AN APPELLANT MAY BE FORCED TO SEEK MULTIPLE CONDONATION OF DELAYS, IF UNDISPUTED TAXES MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 3 OF 8 PAID IN INSTALLMENTS WHICH CANNOT BE CONTEMPLATION OF LAW ON THE SUBJECT MATTER. 7. MORE OVER THE HON'BLE I.T.A.T WHILE RESTORING TH E AFORESAID APPEAL QUA ITS ORDER DATED 28.01.2015 IN M.A.NO.125/HYD/2014 WAS AWARE OF THE LEGAL CONSEQUENCES OF HOLDING OUT SUCH A CLAIM OF CONDONATION OF DELAY TO BE DELAYED UNTIL PAYMENT OF UNDISPUTED TAXES, BY VERBATIM REPRODUCING THE CONTENTS OF M.A FILE IN PAGE 2 AND 3 OF ITS ORDER VIDE FROM PARA NO. 2 & 3 AS UNDER. '2) IT WAS SUBMITTED THAT THERE IS AN INTERPRETATIONAL ERROR IN THE ORDER OF THE ITAT WIT H REGARD TO THE ACTUAL NUMBER OF DAYS IN THE DELAY FOR THE ADMISSION OF THE APPEAL IN AS SUCH AS THE OSTENSIBLE DATE OF FILING THE APPEAL WOULD REVEAL THAT THE DELAY IS ONLY 2 DAYS WHILE THE VIEW HELD BY THE CIT (A) AS REGARD THE NUMBER OF DAYS DELAY WAS BASED ON ACTUAL DATE OF ADJUSTMENT OF TAXES IS A CUMULATED SUM OF 66 DAYS WHICH HAS BEEN FAITHFULLY REPRODUCED BY THE INCOME TAX APPELLATE TRIBUNAL AS A RUSE TO DISMISS THE CASE OF THE ASSESSEE IN LIMINI. 3) THE ASSESSEE SUBMITTED THAT THE ADJUSTMENT OF CASH SEIZED IN THE SUM OF RS.2.00 LAKHS ON 5.4.2010 IS A NON EVENT FOR THE PURPOSE OF CALCULATION OF DELAY SINCE THE MONEY WAS ALREADY IN THE POSSESSION OF THE DEPARTMENT, EVEN BEFORE THE TOTAL INCOME IN RESPECT OF THIS A. Y WAS IN THE CONTEMPLATION OF THE DEPARTMENT OR THE ASSESSEE AS THE CASE MAY BE AND THE MERE FACT OF A FAILURE TO ADJUST THE SAME OR ADJUSTING THE SAME ON 5.4.2010 DOES NOT OBLITERATE THE FACT THAT MONEY BELONGING TO THE ASSESSEE ARE AVAILABLE WITH THE DEPARTMENT SINCE THE DATE OF ITS SEIZURE AND LYING IN THE P.O. A/C TO THE DETRIMENT OF THE ASSESSEE. 4) ASSESSEE PRAYED THAT THIS CRUCIAL FACTUAL PROPOSITION SHOULD BE TREATED AS A MISTAKE OF FACT IN THE ORDER OF THE ITAT IN AS MUCH AS THE ASSESSEE IS NOT RESPONSIBLE FOR UNILATERAL ACTS OF THE MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 4 OF 8 DEPARTMENT IN ITS ADJUSTMENT OF OR ITS FAILURE TO ADJUST THE SEIZED CASH AGAINST EXISTING LIABILITY U/ S 132 B OF THE ACT. 5) ASSESSEE FURTHER SUBMITTED THAT NO OPPORTUNITY WAS GRANTED AT THE TIME OF HEARING OF THE APPEAL BY THE ITAT IN MA NO.125 OF 2014 DEMI REALTORS HYDERABAD PAGE 3 OF 3 THE SECOND ROUND OF APPEAL AS TO THE FINDING ABOUT THE DETRIMENTAL VIEW THAT RS.2.00 LAKHS WAS ADJUSTED AGAINST THE TAX DUES ON REGULAR DEMAND AND HENCE ALLEGEDLY NOT AVAILABLE FOR ADJUSTMENT U/S 249(4) OF THE ACT. 2. AFTER GOING THROUGH THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, WE FIND THAT THERE APPEARS CERTAIN MISTAKES APPARENT ON RECORD. WE FIND IT NECESSARY TO RECALL THE ORDER OF THE ITAT AND DIRECT THE REGISTRY TO POST THE CASE FO R A FRESH HEARING AND INFORM THE PARTIES ACCORDINGLY. 8. IN ADDITION, HON'BLE I.T.A.T IN ITS FIRST ORDER DATED.20.01.2012 IN I.T.A.NO.334/HYD/2011 AT PAGE NUMBER 4 DIRECTED ONLY VERIFICATION OF TAX PAYMENT AND CONDONE THE DELAY, IF ANY; IN FILLING THE APPEAL WITHOUT ANY DIRECTIONS OR RESERVATIONS AS TO THE NUMBER DAYS OF DELAY TO BE CALCULATED UNTIL PAYMENT OF TAXES TO DECIDE THE APPEAL ON MERITS. 9. IN VIEW OF THE HON'BLE I.T.A.T MAY REVISIT IN ORDER DATED.30.09.20L6 TO REMOVE THE DIRECTIONS FOR CONDONATION OF DELAY IN FILING THE APPEAL, UNTIL THE PAYMENT OF RS.2 LAKHS (I.E. ON ~8.12.20 14) BUT ONLY UNTIL THE FACTUAL AND OSTENSIBLE DATE OF FILLIN G THE APPEAL I.E ON 03.02.2010 . DATED THIS 6 TH DAY OF FEBRUARY 2017. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE IN THE PETITION WHILE THE LEARNED DR SUBMITTED MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 5 OF 8 THAT THERE WAS NO MISTAKE APPARENT FROM THE RECORD FROM THE ORDER OF THE TRIBUNAL, HENCE THE M.A SHOULD BE DISMISSED. 3. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE APPEAL WAS INITIALLY HE ARD AND DISPOSED OF VIDE ORDERS DATED 6.12.2013. THEREAFTER, THE ASS ESSEE HAD FILED AN APPLICATION FOR RECALL OF THE ORDER AND VIDE ORD ERS DATED 28.1.2015 THE APPEAL WAS RECALLED. THE APPEAL CAME UP FOR HEARING ON 2.8.16 DURING THE COURSE OF WHICH, THE LEARNED C OUNSEL FOR THE ASSESSEE HAS GIVEN UP THE GROUND THAT THE SEIZED CA SH SHOULD BE ADJUSTED AGAINST THE ADMITTED TAX AND THE ASSESSEE S APPEAL BEFORE THE CIT (A) SHOULD BE CONSIDERED. IT WAS SUBMITTED THAT THE ASSESSEE HAS PAID A FURTHER SUM OF RS.2.00 LAKHS TO WARDS THE ADMITTED TAX, THEREFORE, THE CIT (A) MAY BE DIRECTE D TO CONSIDER THE ASSESSEES APPEAL ON MERIT. ON CONSIDERATION OF THE ASSESSEES CONTENTIONS, THIS TRIBUNAL AT PARA 5 OF THE ORDER H AS HELD AS UNDER: 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT UNDER SUB SECTION (4) OF SECTION 249 OF THE I.T. ACT, AN ASSESSEE IS REQUIRED TO PAY THE ADMITTED TAX BEFORE FILING OF THE APPEAL BEFORE THE CIT (A). ADMITTEDLY, THE ASSESSEE HAS FAILED TO COMPLY WITH THIS CONDITION. AFTER FILING OF THE APPEAL, ASSESSEE HAS SOUGHT ADJUSTMENT OF THE SEIZED CASH TOWARDS THE SHORTFALL OF THE TAX DEMAND, BUT SINCE THE SEIZED CASH HAS ALREADY BEEN ADJUSTED TOWARDS THE PENDING TAX DEMAND, THE SAME WAS NOT ADJUSTED AND THE SHORTFALL CONTINUED TO REMAIN. SINCE THE ASSESSEE HAS PAID THE BALANCE OF THE TAX SUBSEQUENTLY AND RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN THE CASE OF T. KISHAN VS. ACIT MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 6 OF 8 (SUPRA), WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF CIT (A) WITH A DIRECTION TO VERIFY THE PAYMENT OF ADMITTED TAX BY THE ASSESSEE; AND AFTER CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY TO BE FILED BY THE ASSESSEE FOR THE DELAY UPTO THE DATE OF PAYMENT OF THE TOTAL OF THE ADMITTED TAX, THE CIT (A) SHALL CONSIDER THE SAME IN ACCORDANCE WITH THE LAW ON MERITS AND IF SUCH DELAY IS CONDONED BY THE CIT (A), THEN THE CIT (A) SHALL ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERITS. NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING ON ALL THE ABOVE ISSUES. 4. THE ASSESSEES CASE IN THIS M.A. IS THAT THERE I S NO DELAY AS THE ASSESSEE HAS FILED THE APPEAL BEFORE T HE CIT (A) WITHIN THE PERMITTED TIME AND THE PAYMENT OF ADMITTED TAX OF RS.2.00 LAKHS ONLY WAS THE DISPUTE. THEREFORE, ACCORDING TO HIM, IF AT ALL THERE IS A DELAY, IT IS ONLY A PERIOD OF 2 DAYS AND NOT THE DELAY TILL THE DATE OF PAYMENT OF THE TOTAL OF THE ADMITTED TA X INCLUDING RS.2.00 LAKHS WHICH WAS PAID SUBSEQUENTLY BY THE AS SESSEE. THUS, ACCORDING TO THE LEARNED COUNSEL FOR THE ASSE SSEE, THE ASSESSEE WILL SUFFER IRREPARABLE LOSS, IF THE PART OF THE ORDER OF THE TRIBUNAL IS NOT RECALLED AND DIRECTIONS NOT GIVEN T O THE CIT (A) TO CONSIDER THE APPEAL ON MERITS IGNORING THE DELAY IN PAYMENT OF RS.2.00 LAKHS. 5. WE ARE UNABLE TO AGREE WITH THE ABOVE CONTENTION S OF THE ASSESSEE. MERE FILING OF THE PAPERS BEFORE THE CIT (A) WILL NOT CONSTITUTE THE PROPER FILING OF THE APPEAL. AN APPE AL SHOULD BE MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 7 OF 8 ACCOMPANIED BY THE RELEVANT PAPERS AND ALSO THE CON DITION FOR INSTITUTION OF AN APPEAL SHOULD BE SATISFIED. ONE O F THE CONDITIONS FOR ADMITTING AN APPEAL BY THE CIT (A) IS THAT THE ASSESSEE SHOULD HAVE PAID THE ADMITTED TAX ON OR BEFORE FILING OF T HE APPEAL. ADMITTEDLY THERE WAS A SHORTFALL OF PAYMENT OF RS.2 .00 LAKHS TOWARDS THE ADMITTED TAX BEFORE THE FILING OF THE A PPEAL BEFORE THE CIT (A). THE ASSESSEE HAD ALL ALONG BEEN CANVASSING THAT THE ASSESSEE HAS ALREADY PAID THE ADMITTED TAX AS THE C ASH SEIZED DURING THE COURSE OF SEARCH IS VERY MUCH AVAILABLE WITH THE DEPARTMENT AND THE ASSESSEE HAD PRAYED FOR ADJUSTME NT OF THE SAME TOWARDS THE ADMITTED TAX. THERE IS NO ADJUDICA TION BY THE TRIBUNAL AS TO WHETHER THE SAID SUM CONSTITUTES THE PAYMENT OF ADMITTED TAX AND AS THE ASSESSEE HAD ITSELF GIVEN U P THE GROUND AND HAD PRAYED FOR THE CONSIDERATION OF THE SUBSEQU ENT PAYMENT OF RS.2.00 LAKHS AS PAYMENT OF ADMITTED TAX, THIS T RIBUNAL HAD THOUGHT IT FIT AND PROPER TO REMAND THE ISSUE TO TH E FILE OF THE CIT (A) FOR CONSIDERATION OF THE APPEAL ON MERIT AFTER CONDONING THE DELAY IN PAYMENT OF TAX, IF ANY, IN FILING OF THE A PPEAL BY THE ASSESSEE. THE CIT (A) WILL HAVE TO CONSIDER THE REA SONS FOR THE DELAY. THUS, THE DECISION TAKEN BY THE TRIBUNAL WAS A CONSCIOUS DECISION AND THERE IS NO MISTAKE APPARENT FROM THE RECORD. OUR VIEW IS IN ACCORDANCE WITH THE DECISION OF THE HON' BLE SUPREME COURT IN THE CASE OF CIT VS. FILMISTAN LTD, REPORTE D IN 42 ITR 163 (S.C) WHEREIN THE HON'BLE SUPREME COURT HAS HELD AS UNDER: THE MEANING OF THE WORDS 'NO APPEAL SHALL LIE' ON THE PROVISO TO SECTION 30 (I) OF THE INCOME TAX ACT IS NOT THAT NO MEMORANDUM OF APPEAL CAN BE PRESENTED. ALL THAT THE PROVISO MEANS IS THAT THE APPEAL WILL NOT BE HELD TO BE PROPERLY FILED UNTIL THE TAX HAS BEEN PAID. IF, FOR INSTANCE, THE MEMORANDUM OF APPEAL IS FILED ON THE 20TH DAY, I.E., 10 DAYS BEFORE THE PERIOD OF MA NO 3 OF 2017 DEMI REALTORS HYDER ABAD PAGE 8 OF 8 LIMITATION EXPIRES AND THE TAX IS PAID WITHIN THE R EST OF THE 10 DAYS, THE APPEAL WILL BE A PROPER APPEAL; IT WILL BE WITHIN TIME AND NO QUESTION OF LIMITATION WILL A RISE, BUT IF THE TAX IS PAID AFTER THE PERIOD OF LIMITATI ON HAS EXPIRED IT WILL BE TAKEN TO HAVE BEEN FILED ON THE DAY WHEN THE TAX IS PAID EVEN THOUGH THE MEMORANDUM OF APPEAL WAS PRESENTED EARLIER AND WITHIN THE PERIOD OF LIMITATION. THE QUESTION WILL THEN HAVE TO BE DECID ED AS TO WHETHER THERE WAS SUFFICIENT CAUSE FOR CONDONATION OF DELAY. THEREFORE, WE SEE NO REASON TO ENTERTAIN THE ASSESS EES APPLICATION AND THE M.A. IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MARCH, 2017. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 27 TH MARCH, 2017. VINODAN/SPS COPY TO: 1 M/S.DEMI REALTORS, 8-3-167/8/133/301 PLOT NO.133, LALITANILAYAM APARTMENTS, RAJEEVNAGAR, KALYANNAGAR, HYDERABAD 2 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 8(1) IT TOWERS, AC GUARDS, HYDERABAD 3 CIT (A)-III HYDERABAD 4 CIT II HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER