M/S. RITESH TRANSPORT AGENCY, SONEBHADRA V. ITO, RANGE-III(3), MIRZAPUR

MA 5/ALLD/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3307 (ITAT-ALLAHABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-07-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 08-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Condonation of delay
• Section: 271(1)(c); 144; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER Miscellaneous Application (M.A.) No.05/ALLD/2018 Arising out of ITA No.198/ALLD/2017 AY: 2005-06 M/s Ritesh Transport Agency, Bari Dala, Sonebhadra, U.P. 231207 PAN-AAIFR6089G v. Income Tax Officer, Range-III(3), Mirzapur (Appellant) (Respondent) Assessee by: Sh. O.P. Shukla, Adv Department by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 22.07.2022 Date of pronouncement: 05.08.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: By way of this misc. application, the assessee is seeking recalling of the order dated 11.12.2017 of this Tribunal, whereby appeals of the assessee were dismissed. 2. The assessee has alleged in the misc. application that there is a mistake apparent from record of the impugned order of the Tribunal for not condoning the delay in filing the appeal before the CIT(A) without considering the crucial facts on the point. The learned AR of the assessee / applicant has submitted that the assessment order was passed under section 144 of the Act on 13.12.2007. Similarly the penalty order was passed on 10.06.2008 but the copy of the orders passed by the Assessing Officer under section 144 as well as under section 271(1)(c) were not received by the assessee but the same were misplaced / lost in the office of the ld. AR of the assessee. Thereafter, the assessee received a demand notice on 5.11.2012 and came to know about the order passed by the Assessing Officer under section 144 as M.A. No. 5/ALLD/2018 In ITA No.198/ALLD/2017 M/s Ritesh Transport Agency 2 well as under section 271(1)(c) of the Act. The assessee then applied for certified copies of those orders on 9.11.2012. Since, the assessee was suffering from brain stroke, he could not take the steps to obtain the certified copy in time. Further, though the certified copies were prepared by the Assessing Officer on 9.11.2012, but the same were received by the Authorized Representative on 14.01.2013. The learned AR has submitted that the certified copy was received by him as it is evident from the demand notice at page no. 13 of the paper book filed by the Assessing Officer. Thus, he has submitted that the ld. CIT(A) dismissed the appeal of the assessee in limine being barred by limitation and the order of the CIT(A) was upheld by the Tribunal while passing the impugned order. 3. He has further contended that the ld. CIT(A) as well as the Tribunal has rejected the condonation of delay without considering the various judgments on the point that if a party has acted in a particular way on wrong advice given by his adviser, he cannot be held guilty of his negligence so as to disentitle the party to plead sufficient cause. The original order lost by the authorized representative of the assessee and thereafter a certified copy was obtained is a sufficient cause explained by the assessee for the delay in filing the appeal. In support of his case, he has relied upon the various decisions as under:- i. Subhash Malik vs. CIT and other 325 ITR ii. West Bengal vs. Administrator Hawara Municipalites (1972) Supreme Court 749 iii. Mahabir Prasad vs. CIT 172 ITR (331) (MP) iv. Ram Lal & Sons vs. ITO 99 TTA (ASR) 63 v. Kripa Shankar vs. CWT 181 ITR 183 (Alld) Thus, the learned AR has contended that the assessee should not suffer or denied the justice because of the negligence or lapse on the part of the counsel of the assessee and pleaded that the impugned order may be recalled for deciding afresh on condonation of delay. M.A. No. 5/ALLD/2018 In ITA No.198/ALLD/2017 M/s Ritesh Transport Agency 3 4. On the other hand, the learned DR has submitted that the assessee received certified copy on 9.11.2012, as is evident from the application filed by the assessee for taking the certified copy. The Tribunal has given a finding based on the facts and arguments put forth at the time of hearing therefore, the assessee cannot be allowed to set up a new case in the misc. application under section 254(2) of the Income Tax Act. 5. We have considered the rival submissions as well as relevant material on record. The assessee filed the appeal before the ld. CIT(A) on 14.02.2013 against the assessment order passed under section 144 on 13.12.2007. There was almost five years’ delay in filing the appeal before the ld. CIT(A). The assessee has filed an application dated 13.02.2013 for condonation of delay before the ld. CIT(A) which reads as under:- “To, The Commissioner of Income Tax (Appeals) Allahabad. Sir, Sub: Condonation of delay of appeal in case of M/s Ritesh Transport for A.Y. 2005-06 against the order of the Assessing Officer U/s 144 dated 13.12.07. With reference to the above caption subject the assessee case was under scrutiny and the assessment has been completed U/s 144, but the assessee was not received order. The assessee was applied for certified copy before the assessing officer, along with deposit of requisite fee and is being filed with request that, the delay may kindly be condoned and on the basis of certified true copy the appeal may kindly be received. Hope you will do the needful. Thanking You, Your faithfully For: Ritesh Transport Agency Sd/- Gomati Devi Dated: 13.02.2013 Place: Varanasi” M.A. No. 5/ALLD/2018 In ITA No.198/ALLD/2017 M/s Ritesh Transport Agency 4 6. The CIT(A) while passing the order dated 31.08.2017 has dismissed the appeal as under: “As per Form No. 35, the date of order of the A.O. is 13.12.2007. The appeal has been filed on 13.02.2013. The appellant has submitted a request for condonation of delay in filing the said appeal. The A.R. of the appellant has been confronted with the fact that the original order was served on the appellant, which he himself has agreed in the letter dated 09.11.2012 to the A.O. where he has written that he lost the order. Further even after the certified copy of the appeal filed is late. Looking to the facts and circumstances of the case, the A.O’s order is confirmed and the appeal of the appellant is dismissed.” 7. Thus, the CIT(A) has declined to condone the delay by considering two facts that the assessee in the application dated 9.11.2012 filed for certified copy of the assessment order as well as order passed under section 271(1)(c) has written that he lost the order and thereafter, despite receiving the certified copy, the appeal was filed belatedly. It appears that it is a case of bad drafting and poor representation on behalf of the assessee while explaining the cause of delay before the ld. CIT(A). 8. Before the Tribunal, the assessee has explained the cause of delay that earlier counsel lost the order and the assessee was ill during some period. The Tribunal was not impressed with the explanation of the assessee and dismissed the appeal in para 3 of the impugned order as under:- “3. After considering the rival contentions, we are of the view that no interference is called for in the matter. The Learned. Counsel for the assessee, reiterated the submissions made before Ld. CIT(A) and also filed copy of the application filed for condonation of delay before Ld. CIT(A) in which no specific averments have been given as to why the appeal was filed beyond the period of limitation before Ld. CIT(A). Since the assessee admitted to have received the original order and thereafter, again applied for certified copy, would show that assessee was most negligent in not preferring the appeals before the Ld. CIT(A) within the period of limitation. According to the Ld. CIT(A), even after supply of the certified copy to the assessee, the appeals are late, for which no explanation have been given by the assessee. It would, therefore, show that assessee has no explanation whatsoever for filing the appeals belatedly. Learned Counsel for the assessee merely contended that M.A. No. 5/ALLD/2018 In ITA No.198/ALLD/2017 M/s Ritesh Transport Agency 5 earlier Counsel lost the order and that assessee was ill during some period, which fact were never pleaded before the Ld. CIT(A) for condonation of delay in both the appeals. Considering the above discussion, it is clear that assessee has no explanation whatsoever for filing the appeals belatedly before the Ld. CIT(A). The Ld. CIT(A), therefore, correctly considered that both the appeals are time barred and accordingly, dismissed the appeals. No interference is called for in both the appeals. We, therefore, dismiss both the appeals of the assessee.” 9. Therefore, the Tribunal after considering all these facts and explanation of the assessee has taken a decision that assessee has failed to explain the reasonable cause for filing the appeal before the ld. CIT(A) belatedly and hence, no interference is called for. As regards, the receiving of certified copies on 14.01.12013 and not on 9.11.2012, we find that even if it is accepted that the ld. AR of the assessee received the certified copy on 14.01.2013 but the certified copy was ready on 9.11.2012, as it is apparent from the record and particularly from the application of the assessee for obtaining the certified copy. Even one Shri. Ram Raksha Shukla has acknowledged the readiness of the certified copy and therefore, it was very well in the knowledge of the assessee that the certified copies were ready on 9.11.2012 itself. Therefore, not receiving the certified copy on time, the delay will not be attributable to the A.O. but the assessee itself has chosen not to receive on the same day but after two months. Hence, the delay of these two months in receiving the certified copies is purely attributable to the assessee and not to the department. 10. In the facts and circumstances of the case, when the Tribunal has already considered the facts and taken a decision for not condoning the delay which is an inordinate delay of 5 years in filing the appeals before the CIT(A) then the said order passed by the Tribunal cannot be reviewed or revised in the proceedings under section 254(2) of the Act. The power and jurisdiction of the Tribunal under section 254(2) is very limited and circumscribed to rectify the mistakes apparent from record and not to re-appreciate the facts already considered by the Tribunal. It may be an error of judgment which cannot be agitated in the proceedings under section 254(2) M.A. No. 5/ALLD/2018 In ITA No.198/ALLD/2017 M/s Ritesh Transport Agency 6 of the Income Tax Act. Hence, we do not find any substance or merit in the misc. application of the assessee, the same is dismissed. 11. In the result, the misc. application filed by the assessee is dismissed. Order pronounced in the open Court on 05.08.2022. Sd/- Sd/- RAMIT KOCHAR VIJAY PAL RAO (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) Dated: 05.08.2022 sh Copy forwarded to: 1. Appellant – M/s Ritesh Transport Agency 2. Respondent –I.T.O., Range-III(3), Mirzapur 3. CIT(A), Allahabad 4. CIT- 5. DR - By order Sr. P.S.