Income Tax Appellate Tribunal - Mumbai
Silkasia , Mumbai vs Assessee on 25 July, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH 'F'MUMBAI
BEFORE SHRI T.R. SOOD (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM)
ITA No. 4739/Mum/2010
Assessment year - 2000-01
Silkasia, The ITO, Ward 17(2)(1),
324, Wadala Udyog Bhawan, Mumbai
Naigaon Cross Road, Wadala,
Mumbai-400 031 Vs.
PAN-AAAFS 3741E
(Appellant) (Respondent)
Appellant by: Shri Ishwar P. Rathi
Respondent by: Shri Subachan Ram
Date of Hearing : 25.07.2011
Date of Pronouncement: 29th July, 2011
ORDER
PER ASHA VIJAYARAGHAVAN (JM) This appeal preferred by the assessee is directed against the order dated 31.3. 2010 passed by the ld. CIT(A)- 29 for the Assessment Year 2000-
01.
2. The assessee is engaged in the business of export of manufactured goods. The assessee had already filed return of income for the assessment year 2000-01 on 23.10.2000 declaring a total income of Rs. 3,26,540/- after claiming the deduction u/s. 80HHC at Rs. 32,18,843/-. However, notice u/s. 148 dt. 10.11.2006 was issued as there was a new amendment made to Sec. 80-HHC in the year 2005 regarding export incentives. The assessment was completed u/s. 143(3) r.w.s. 147 of the I.T. Act, 1961.
2 ITA No. 4739/M/20103. Aggrieved, assessee preferred an appeal before the Ld. CIT(A). According to the assessee while preferring the appeal before the Ld. CIT(A), the assessee was not aware that there has been a delay of 14 days in filing the appeal.
4. The Ld. CIT(A) held as follows:
"The appellant has filed written submissions regarding reopening, taxation of DEPB entitlements, etc. This has been forwarded to the AO. However, the first basic issue is that appellant has filed appeal late. The appeal has been filed on 13.2.2008 and the order of the AO is said to be received on 18.1.2008. The AO has pointed out in his letter dt. 16th October, 2008 that the assessment order was served on the appellant on 31.12.2007 and acknowledgement of service is on record.
I find that appeal has been filed late beyond the permissible limit of 30 days. Appellant has also not submitted any reasonable cause for such delay. Therefore the appeal cannot be admitted and is dismissed. There is no need to adjudicate on the merits of other issues covered in the grounds of appeal."
5. The assessee has now filed an Affidavit which reads as follows:
"I, CHANDRA MOHAN AGARWAL, aged about 56 years residing at 17-A, Arun Bldg, Mumbai-400 036, the partner of the appellant firm M/s. Silkasia, do hereby solemnly affirm and state as under;
1. That we had received the assessment order for the Asst. year 2000-01 from our regular tax consultant on 29.01.2008 and further our regular tax consultant has informed us that he has collected the same on 18.01.2008 for the Income Tax Department.
2. On the basis of the aforesaid information we had filed an appeal against this order on 13.02.2008 with an 3 ITA No. 4739/M/2010 understanding that the same is in time as the order was collected on 18.01.2008.
3. In form 35 also we had mentioned the date of service of notice of demand as 18.01.2008. And at the same time we had challenged the validity of the order as barred by limitation since it was served on 18.01.2008.
4. During the course of appellate proceeding when the remand report was called for and the assessing officer has reported that the order was served on 31.12.2007, only at that stage we came to know that the appeal is late by 14 days, however we could not got an opportunity to make our submission before the Commissioner of Income Tax Appeals as the order was passed without giving any opportunity to us in respect of such delay.
5. That it was not a deliberate lapse on our part for the aforesaid delay in filing this appeal before the Commissioner of Income Tax Appeals. But the same was based on miscommunication on the part of the our tax consultant that he has collected the order only on 18.01.2008.
6. The delay in filing of this appeal is fully on account of the above mentioned reasons. Under the aforesaid circumstances we pray to your honour to condone the genuine delay and the appeal be restored back to the Commissioner of Income Tax Appeals, as otherwise it would lead to great hardship to us."
7. The Ld. Departmental Representative submitted as follows:
"It may be again requested that such appellant must show that he was diligent all along in taking appropriate steps and the delay was caused notwithstanding his due diligence. If he appears to be guilty of laches or negligence and does not take appropriate steps for pursuing his remedy till about the close of the period prescribed by law for the filing of the appeal, he must be prepared to have his remedy barred without expecting condonation as held in the cases of Baledo Lal Roy Vs State of Bihar (1960) II STC 104, 108-109 (Pat), Vithaldas Girdharidas Vs ITAT (1980) 122 ITR 859 (Bom), Jahar Mahal Vs G.M. Pritchard AIR 1919 Pat 503; Kedarnath Vs Zumberlal, AIR 1916 Nag 4 ITA No. 4739/M/2010 39' Hakimia Vs J.C Gammon, AIR 1930 Nag 121, Pandit Krishna Rao Dattatraya Phalke Vs Trimbak, AIR 1930 Nag 121."
7.1 The assessee has submitted in form of Affidavit that due to mis communication by the Tax Consultant the date of receipt of order has been noted as 18.1.2008. The assessee has also mentioned the date of service of notice in form No. 35 as 18.1.2008. The Ld. Counsel Shri Ishwar P. Rathi explained that only during the course of appellate proceeding when the Remand Report was called for and the AO had reported that the order was served on 31.12.2007, the assessee came to know that the appeal is late by 14 days. However, he could not get an opportunity to make its submission before the Ld. CIT(A) since no opportunity was given to the assessee to explain the delay.
8. In these circumstances, in the interest of justice, as the assessee has submitted reasonable cause for such delay, we condone the delay of 14 days relying on the judgement of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiji And Others [(1987) 167 ITR 471 (SC)] and also Improvement Trust, Ludhiana Vs. Ujgar Singh & Ors. dated June, 09, 2010.
9. Having condoned the delay of 14 days in filing the appeal, we remit the matter to the file of the Ld. CIT(A) to decided the issue on merits.
10. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the Open Court on 29th July, 2011 Sd/- Sd/-
(T.R. SOOD) (ASHA VIJAYARAGHAVAN)
Accountant Member Judicial Member
Mumbai, Dated 29th July, 2011
Rj
5 ITA No. 4739/M/2010
Copy to :
1. The Appellant
2. The Respondent
3. The CIT-concerned
4. The CIT(A)-concerned
5. The DR ' F' Bench
True Copy
By Order
Asstt. Registrar, I.T.A.T, Mumbai
6 ITA No. 4739/M/2010
Date Initials
1. Draft dictated on: 25.7.2011 Sr.
PS/PS
2. Draft placed before author: Sr.
25.07.2011 PS/PS
3. Draft proposed & placed before JM/AM
the second member:
4. Draft discussed/approved by JM/AM
Second Member:
5. Approved Draft comes to the Sr. Sr.
PS/PS: PS/PS
6. Order pronounced on: Sr.
PS/PS
7. File sent to the Bench Clerk:
8. Date on which file goes to the Sr.
Head Clerk: PS/PS
9. Date on which file goes to AR
10. Date of dispatch of Order: