M/s The Kakinada Port Workers Pool, Kakinada, Visakhapatnam V. The Commissioner of Income Tax, Rajahmundry

MA 4/VIZ/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6251 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 18-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: G V S S PRASAD
• Keywords: Reasonable cause

Judgement Text

MA NO.4/VIZ/2011 THE KAKINADA PORT WORKERS POOL, KKD IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO. 4 /VIZAG/ 20 11 (ARISING OUT OF ITA NO.273/VIZ/2010) ASSESSMENT Y EAR : N.A. THE KAKINADA PORT WORKERS POOL KAKINADA CIT RAJAHMUNDRY (APPELLANT) VS. (RESPONDENT) PAN NO.AABTT 1469M APPELLANT BY: SHRI G.V.S.S. PRASAD, CA RESPONDENT BY: SHRI D.S. SUNDER SINGH, SR. DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER : - BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS SOUGHT RECALLING OF THE ORDER OF THE TRIBUNAL DATED 23.11.2010 WHEREBY THE APPEAL OF THE ASSESEE WAS DISMISSED BEING BARRED BY LIMITATION. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TRIBU NAL HAS WRONGLY ADOPTED THAT THE DELAY WAS OF 7 MONTHS FROM THE DATE OF THE ORDER OF THE TRIBUNAL, WHEREAS DELAY WAS IN FACT OF 5 MONTHS BECAUSE THE TRIBUNAL HAS TAKEN THE DATE OF FILING OF THE APPEAL AS 7.7.2010, WHEREAS THE DATE OF FILING OF THE APPEAL W AS 31 ST MAY, 2010. THEREFORE, THERE WAS A DIFFERENCE OF PERIOD OF DELAY BY 2 MONTHS. THERE IS AN ERROR APPARENT IN THE ORDER OF THE TRIBUNAL, THEREFORE, IT IS TO BE RECALLED AND THE APPEAL BE DISPOSED OF ON MERIT. 2. THE LD. D.R. ON THE OTHER HAND SUBMI TTED THAT TRIBUNAL IN ITS PARA - 3 HAS CATEGORICALLY MADE CLEAR THAT THE ASSESSEE HAS NOT FILED AN APPEAL DESPITE IT WAS POINTED OUT TO HIM THAT THE REMEDY AGAINST THE ORDER OF CIT LIES BEFORE THE TRIBUNAL. EVEN AFTER THE TRIBUNAL CONFIRMED THE ORDER OF THE CIT BY HOLDING THAT THE ARGUMENTS OF THE DEEMED REGISTRATION CANNOT BE ACCEPTED AND THE RIGHT COURSE AVAILABLE WITH THE ASSESSEE WAS EITHER TO ASK FOR RECTIFICATION IN THE ORDER OF CIT OR TO CHALLENGE THE ORDER BEFORE THE TRIBUNAL VIDE ITS ORDER DATED 10. 12.2009. DESPITE THIS ORDER OF THE TRIBUNAL, THE ASSESSEE DID NOT PREFER AN APPEAL BEFORE THE TRIBUNAL TO CHALLENGE THE ORDER MA NO.4/VIZ/2011 THE KAKINADA PORT WORKERS POOL, KKD 2 EVEN UP TO 5 MONTHS ACCORDING TO IT. THEREFORE, THE ASSESSEE HAS NOT FURNISHED ANY REASONABLE CAUSE FOR THE DELAY IN FILING OF T HE APPEAL. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM CAREFUL PERUSAL OF ORDER OF THE TRIBUNAL VIS - - VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT IT WAS MADE CLEAR TO THE ASSESSEE THAT ORDER OF THE CIT GRANTING REGISTRATION W.E.F. 1.11.2007 CAN ONL Y BE CHALLENGED BEFORE THE TRIBUNAL AND THE THEORY OF DEEMED REGISTRATION WOULD NOT BE ACCEPTED. BY ORDER DATED 10.12.2009, THE TRIBUNAL HAS CATEGORICALLY REJECTED THE THEORY OF DEEMED REGISTRATION OF THE ASSESSEE AND MADE A CLEAR INDICATION TO THE ASSESS EE THAT THE RIGHT COURSE AVAILABLE WITH IT WAS EITHER TO ASK FOR RECTIFICATION IN THE ORDER OR CHALLENGE THE SAME BEFORE THE TRIBUNAL. DESPITE THAT ORDER, THE ASSESSEE DID NOT MAKE ANY EFFORT TO CHALLENGE THE ORDER BEFORE THE TRIBUNAL. EVEN WE ACCEPT THE CONTENTION OF THE ASSESSEE THAT THE APPEAL WAS FILED ON 3 RD MAY, 2010, THE DELAY WAS AGAIN ABOUT 5 MONTHS FOR WHICH NO PROPER EXPLANATION WAS FURNISHED BY THE ASSESSEE DURING THE COURSE OF HEARING OF THE APPEAL. THEREFORE, THE TRIBUNAL HAS RIGHTLY DISMIS SED THE APPEAL BEING NOT ADMITTED AS BARRED BY LIMITATION. THEREFORE, WE FIND NO ERROR IN THE ORDER OF THE TRIBUNAL. ACCORDINGLY, WE CONFIRM THE SAME. PRONOUNCED IN THE OPEN COURT ON 7.2 .20 1 1 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOU NTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 7 TH FEBRUARY , 20 1 1 COPY TO 1 THE KAKINADA PORT WORKERS POOL, C/O G.V.S.S. PRASAD, CHARTERED ACCOUNTANT, FLAT NO.6, 5 TH FLOOR, MADHURI MANOR APARTMENTS, OPP. ANDHRA BANK, LAWSONS BAY COLONY, VISAKHAPATNAM - 530 017 2 CIT, RAJAHMUNDRY 3 THE CIT (A) , RAJAHMUNDRY 4 THE DR, ITAT, VISAKHAPATNAM. 5 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM