ANEEKA UNIVERSAL PRIVATE LIMITED, MUMBAI V. PR.CIT-9, MUMBAI

MA 621/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7531 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 09-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI
• Keywords: Reasonable cause; Condonation of delay; Set aside
• Section: 143(3); 191; 254(2); 263

Judgement Text

1 MA NO.621/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.621 /MUM/2019 (ARISING OUT OF ITA NO.7115/MUM/2018) (ASSESSMENT YEAR: 2013-14) & ANEEKA UNIVERSAL P.LTD., 502, GHANSHYAM CHAMBER B-12, NEW LINK ROAD, ANDHERI(W) MUMBAI-400 053 PAN NO: AAJCA9423H VS PR.CIT - 9 AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 APPLICANT RESPONDENT APPLICANT BY SHRI VIJAY MEHTA, AR RESPONDENT BY SHRI R. BHOOPATHI, DR DATE OF HEARING 1 4/02 /2020 DATE OF PRONOUNCEMENT 19 /03/2020 O R D ER PER G MANJUNATHA: AM THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ONS U/S 254(2) OF THE I.T.ACT, 1961 AGAINST ORDER OF THE TRIBUNAL, DATED 29/11/2019 IN ITA NO.7115MUM/2018 FOR THE ASST.YEAR 2013-14. 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL. TH E RELEVANT CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- 2 MA NO.621/MUM/2019 1. THE CAPTIONED APPEAL FILED AGAINST THE ORDER DATED 23.03.2018 PASSED U/S. 263 OF THE ACT BY THE PR. QT-9, MUMBAI WAS DIS MISSED BEING BARRED BY LIMITATION VIDE ORDER DATED 29.11.2019. HEARING IN THE ABOVE MATTER TOOK PLACE ON 25.06.2019 WHEN THE DETAILED ARGUMENTS WERE ADVA NCED BY BOTH THE PARTIES ON THE ISSUE OF CONDONATION OF DELAY, AS WE LL AS ON MERITS. THEREAFTER, THE MATTER WAS FIXED FOR CLARIFICATION ON 04.10.201 9. SINCE THE AFORESAID ORDER CONTAINS MISTAKES APPARENT FROM RECORD, WHICH REQUI RE RECTIFICATION SO AS TO AVOID MISCARRIAGE OF JUSTICE, WE BEG TO FILE THIS A PPLICATION U/S. 254(2) OF THE ACT FOR KIND CONSIDERATION OF THE HON'BLE MEMBERS. A COPY OF THE AFORESAID ORDER TAKEN FROM THE WEBSITE OF THE HON'BLE TRIBUNA L ON 06.12.2019 IS ENCLOSED, MARKED AS ANNEXURE-A. 2. SINCE THE ORDER APPEALED AGAINST WAS RECEIVED O N 03.04.2018, THE APPEAL FILED ON 10.12.2018 WAS LATE BY 191 DAYS. IT WAS EX PLAINED IN THE APPLICATION FOR CONDONATION THAT THE DELAY WAS CAUSED ON ACCOUN T OF THE WRONG ADVICE RECEIVED FROM SHRI NILESH Y. JAGIWALA, CHARTERED AC COUNTANT WHO ATTENDED THE PROCEEDINGS U/S. 263 OF THE ACT. ACCORDING TO T HE SAID CHARTERED ACCOUNTANT NO ACTION WAS REQUIRED TO BE TAKEN WITH RESPECT TO THE ORDER U/S. 263 OF THE ACT SINCE THE CONSEQUENTIAL ORDER COULD BE CHALLENGED BEFORE THE FIRST APPELLATE AUTHORITY. THE DULY SWORN AFFIDAVIT TENDERED BY SHRI JAGIWALA WAS ALSO SUBMITTED IN SUPPORT OF THE REQUEST FOR CO NDONATION, IN ADDITION TO THAT OF THE APPLICANT. 3, THOUGH THE HON'BLE TRIBUNAL WAS PLEASED TO O BSERVE IN PARAGRAPH 5 THAT DELAY CAUSED DUE TO WRONG ADVICE OF COUNSEL COULD B E REASONABLE CAUSE FOR CONDONING DELAY, THE REQUEST OF THE APPLICANT WAS R EJECTED BY REPEATEDLY OBSERVING THAT NON-FILING OF THE APPEAL WAS A 'CONS CIOUS DECISION' TAKEN BY THE ASSESSEE; AND IT WAS FILED BELATEDLY AFTER REALISIN G THAT THE ASSESSING OFFICER WAS NOT INCLINED TO GIVE A FAVOURABLE DECISION. THE RELEVANT FINDINGS RECORDED BY THE HON'BLE TRIBUNAL TAKEN FROM PARAGRAPH 5 OF T HE ORDER ARE AS UNDER: '.....IF WE GO THROUGH THE REASONS ADDUCED BY THE A SSESSEE, THE ASSESSEE ITSELF HAS ADMITTED THE FACT THAT IT WAS U NDER THE BONA FIDE BELIEF THAT THE PCIT HAS SET ASIDE THE ASSESSMENT O RDER PASSED U/S. 143(3) WITH A DIRECTION TO REDO THE ASSESSMENT AFRE SH AND HENCE, IT WAS UNDER THE BELIEF THAT IT MAY GET FAVOURABLE RES ULT FROM THE AO. WHEN THE AO WAS DETERMINED TO MAKE ADDITIONS ON THE ISSUES DISCUSSED BY THE PCIT IN ITS 263 PROCEEDINGS THEN, THE ASSESSEE HAS DECIDED TO FILE APPEAL WITH EXPLANATION THAT THE CO UNSEL, WHO APPEARED BEFORE THE PCIT HAS GIVEN INCORRECT ADVISE. WE FIND THAT THE ASSESSEE HAS TAKEN A CONSCIOUS DEC ISION NOT TO FILE APPEAL, ON THE PRETEXT OF GETTING FAVOURABLE RESULT S FROM THE AO IN CONSEQUENTIAL ASSESSMENT PROCEEDINGS. IT CANNOT BE SAID THAT THE PROFESSIONAL ADVICE GIVE N BY THE COUNSEL IS INCORRECT. 3 MA NO.621/MUM/2019 FURTHER, THE PROFESSIONAL ADVICE GIVEN BY ANY CONSU LTANT CAN BE TERMED AS WRONG ADVISE IF THE SAID CONSULTANT ADVISED THE ASSESSEE AGAINST THE SETTLED POSITION OF LAW OR CONTRARY TO THE PROV ISIONS OF THE ACT, BUT EVEN ADVISE IS GIVEN ON THE BELIEF THAT FURTHER ALT ERNATIVE REMEDY IS AVAILABLE TO THE ASSESSEE TO CHALLENGE THE ACTION O F ANY AUTHORITY, THEN THE SAME CANNOT BE CONSIDERED AS WRONG ADVISE.....' 4. IN THIS REGARD, IT IS SUBMITTED THAT THE FO LLOWING IMPORTANT FACTS AND THE CONTENTS OF THE DOCUMENTS HAVE BEEN COMPLETELY OVER LOOKED BY THE HON'BLE TRIBUNAL. (A) THE ASSESSEE HAS NEVER PLEADED THAT SINCE THE ASSESSING OFFICER WAS DETERMINED TO MAKE THE ADDITIONS, IT DECIDED TO FIL E APPEAL. THE ASSESSEE STATED THAT SINCE THE ASSESSING OFFICER WAS DETERMI NED TO MAKE THE ADDITIONS, IT HAS APPROACHED THE COUNSEL FOR HIS ADVICE. DURIN G THE CONFERENCE WITH THE COUNSEL, IT WAS INQUIRED BY THE COUNSEL AS TO WHAT WAS THE STATUS OF THE APPEAL AGAINST THE ORDER PASSED U/S. 263 OF THE ACT . THUS, THE HON'BLE TRIBUNAL HAS MISUNDERSTOOD THE CONTENTS OF APPLICAT ION FOR CONDONATION OF DELAY. (B) THE ASSESSEE HAS NEVER PLEADED THAT IT WAS UN DER THE BONA FIDE BELIEF THAT IT MAY GET FAVOURABLE RESULT FROM THE ASSESSIN G OFFICER. (C) THE ASSESSEE HAS CATEGORICALLY SUBMITTED THAT ITS DECISION NOT TO FILE AN APPEAL WAS BASED ON THE ADVICE OF THE CHARTERED ACC OUNTANT WHO APPEARED BEFORE PCIT. (D) THE ADVICE OF THE CHARTERED ACCOUNTANT, WHO AP PEARED BEFORE THE PCIT, WAS INCORRECT BECAUSE THE JURISDICTION OF THE PCIT TO PASS THE REVISIONAL ORDER COULD BE CHALLENGED ONLY BEFORE THE HON'BLE TRIBUNA L. THE INCORRECTNESS OF THE SAID ADVICE WAS MADE KNOWN TO THE ASSESSEE ONLY DUR ING THE CONFERENCE WITH THE COUNSEL. EVEN THE CHARTERED ACCOUNTANT WHO GAVE THE INCORRECT ADVICE HAD CATEGORICALLY ADMITTED IN HIS AFFIDAVIT THAT HE ADVISED SO DUE TO HIS INEXPERIENCE IN PROFESSION, AND SUCH ADVICE WAS FOU ND TO BE INAPT. THIS IS FURTHER SUPPORTED BY THE AFFIDAVIT OF THE DIRECTOR OF THE ASSESSEE-COMPANY. BOTH THE AFFIDAVITS HAVE GONE UNCONTROVERTED, AND T HERE IS NO COUNTER AFFIDAVIT ON THE BASIS OF WHICH A CONTRARY VIEW CAN BE TAKEN BY THE HON'BLE TRIBUNAL. (E) THE ADVICE GIVEN BY THE CHARTERED ACCOUNTANT WAS AGAINST THE SETTLED POSITION IN LAW BECAUSE THE JURISDICTION OF THE COM MISSIONER CAN BE CHALLENGED ONLY BEFORE THE HON'BLE TRIBUNAL. THERE IS NO ALTERNATE REMEDY AVAILABLE BECAUSE THE JURISDICTION OF THE COMMISSIO NER CANNOT BE CHALLENGED BEFORE ANY OTHER AUTHORITY EXCEPT THE HON'BLE TRIBU NAL. 5. THE APPLICANT, THEREFORE, PRAYS THAT THIS HO N'BLE TRIBUNAL MAY BE PLEASED TO: (A) RECALL THE ORDER DATED 29.11.2019 IN ITA NO. 7115/MUM/2019 FOR HEARING AND DISPOSAL AFRESH AND IN ACCORDANCE WITH LAW; (B) CONDONE THE DELAY OF 191 DAYS IN FILING THE APPEAL BEFORE THE HON'BLE TRIBUNAL; AND/OR (C) TO PASS ANY OTHER ORDER AND/OR DIRECTION AS THI S HONBLE TRIBUNAL MAY DEEM FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF TH E CASE. 4 MA NO.621/MUM/2019 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL, DATED 29/11/2019, INASMUCH A S, THE TRIBUNAL HAS DISMISSED APPEAL FILED BY THE ASSESSEE WITHOUT COND ONING THE DELAY IN FILING OF APPEAL BY HOLDING THAT THE REASONS GIVEN BY THE ASSESSEE IN ITS APPLICATION FOR CONDONATION OF DELAY DOES NOT COME UNDER THE AMBIT OF REASONABLE CAUSE. THE LD.AR, FURTHER SUBMITTED THAT ALTHOUGH, THE TRIBUNAL HAS RECORDED ITS FINDING TO THE EFFECT THA T THE DELAY IN FILING APPEAL WAS DUE TO INCORRECT ADVISE GIVEN BY THE CHA RTERED ACCOUNTANT, WHO APPEARED BEFORE THE LD.PCIT, BUT WENT ON TO DEC IDE THE ISSUE OF CONDONATION OF DELAY BY REPEATEDLY HOLDING THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD. PCIT PASSED U/S 263 OF THE I.T.ACT, 1961 BY AN AFTERTHOUGHT, WHEN THE L D. AO WAS DETERMINED THE MAKE THE ADDITIONS ON THE ISSUES TAKEN UP BY TH E COMMISSIONER IN 263 PROCEEDINGS. THE LD. AR, FURTHER SUBMITTED THAT , BUT FACT REMAINS THAT THE ASSESEE HAS NEVER PLEADED THAT SINCE, THE LD. AO WAS DETERMINED TO MAKE ADDITIONS, BUT THE APPEAL HAS BE EN FILED, ON THE BASIS OF FRESH ADVISE TAKEN FROM A DIFFERENT COUN SEL, WHO HAD GIVEN SUGGESTION FOR FILING APPEAL AGAINST THE ORDER OF T HE COMMISSIONER PASSED U/S 263 OF THE I.T.ACT, 1961. THE SAID FIND INGS OF THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT ON RECORD, WHICH CAN BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1961 AND ACCORDINGLY, THE OR DER OF THE TRIBUNAL MAY BE RECALLED IN THE INTEREST OF JUSTICE. 4. THE LD. DR PRESENT FOR THE REVENUE, ON OTHER HAN D SUBMITTED THAT THE LD. COUNSEL FOR THE ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISTAKE APPARENT ON RECORD FROM THE ORDER OF THE TR IBUNAL, BUT SEEKS TO REVIEW THE DECISION RENDERED BY THE TRIBUNAL UNDER GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE I.T.ACT, 1961. 5 MA NO.621/MUM/2019 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE C ONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, IN LIGHT OF THE DECISION OF THE TRIBUNAL, DATED 29/11/2019 IN ITA NO.7115/MU M/2018 AND WE FIND THAT THE TRIBUNAL HAS DISMISSED APPEAL FILED BY THE ASSESEE BY NOT CONDONING THE DELAY OF 191 DAYS IN FILING THE APPEA L FOR THE REASONS STATED IN ITS ORDER DATED 29/11/2019. ONGOING THRO UGH, THE REASONS GIVEN BY THE TRIBUNAL FOR REJECTION OF THE CLAIM OF THE ASSESSEE FOR CONDONATION OF DELAY AND THE PLEADINGS TAKEN BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION, WE FIND THAT ALTHOUGH, T HE TRIBUNAL HAS ACCEPTED THE FACT THAT DELAY IN FILING APPEAL WAS D UE TO WRONG ADVICE OF COUNSEL, BUT PROCEEDED TO DISMISS THE APPEAL ON THE SOLE BASIS OF FINDING THAT IT IS AN AFTERTHOUGHT OF THE ASSESSEE, AFTER T HE LD. AO HAS DECIDED TO MAKE ADDITIONS, IN RESPECT OF ISSUES QUESTIONED BY THE LD.CIT(A), IGNORING THE PLEADING OF THE ASSESSEE, IN LIGHT OF AFFIDAVIT OF SHRI NILESH Y.JAGIWALA, CHARTERED ACCOUNTANT, WHO ATTENDED THE PROCEEDINGS U/S 263 OF THE ACT, ALONG WITH CERTAIN JUDICIAL PRECEDE NTS, INCLUDING THE DECISION OF HONBLE BOMBAY HIGH COURT. THE SAID FIN DINGS OF THE TRIBUNAL CONSTITUTE A MISTAKE APPARENT ON RECORD, WHICH CAN BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1961. HENCE, WE RECALLED THE ORDER OF THE TRIBUNAL, DATED 29/11/2019 IN ITA NO.7115/MUM/2018 FOR ASST.Y EAR 2013-14 AND DIRECT THE REGISTRY TO REFIX THE CASE FOR HEARING I N DUE COURSE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.03.2020 6 MA NO.621/MUM/2019 SD/- SD/- SAKTIJIT DEY G MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 19.03.2020 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//