Income Tax Appellate Tribunal - Bangalore
Mr, Amil Kuma Garg, Arsikere vs Income Tax Officer, Ward-1, Tiptur on 21 March, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
"SMC-A" BENCH : BANGALORE
BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER
ITA Nos.2732 & 2733/Bang/2017
Assessment Years : 2010-11 & 2011-12
Shri Anil Kumar Garg,
Prop: Hanuman Traders,
The Income Tax Officer,
RMC Yard,
Ward - 1,
Tiptur - 572 201.
Tiptur.
PAN: AESPG6950P
APPELLANT RESPONDENT
Appellant by : Shri Sandeep .C, CA
Respondent by : Shri L.V. Bhaskar Reddy, Addl. CIT (DR)
Date of hearing : 21.03.2018
Date of Pronouncement : 21.03.2018
ORDER
Per Shri A.K. Garodia, Accountant Member
Both these appeals are filed by the assessee and these are directed against two separate orders of ld. CIT(A)-7, Bangalore both dated 04.10.2017 for Assessment Years 2010-11 and 2011-12. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.
2. The grounds raised by the assessee for Assessment Year 2010-11 in ITA No. 2732/Bang/2017are as under.
"1. That the order of the learned Commissioner of Income Tax (Appeals) in so far it is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not condoning the delay of 168 days in filing the appeal.
3. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not bringing to the notice of the appellant about the ITA Nos.2732 & 2733/Bang/2017 Page 2 of 5 delay in filing the appeal.
4. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in passing the order without giving an opportunity to the appellant to explain the reason for the delay in filing the appeal and such action is violation of principles of natural justice.
5. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not deciding the case on the merits after taking into account the submissions made by the appellant.
Each of the above grounds is without prejudice to one another, the appellant seeks the leave of the leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or modify otherwise any one or all the grounds of appeal either before or at the time of hearing this appeal."
3. The grounds raised by the assessee for Assessment Year 2011-12 in ITA No. 2733/Bang/2017are as under.
"1. That the order of the learned Commissioner of Income Tax (Appeals) in so far it is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not condoning the delay of 168 days in filing the appeal.
3. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not bringing to the notice of the appellant about the delay in filing the appeal.
4. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in passing the order without giving an opportunity to the appellant to explain the reason for the delay in filing the appeal and such action is violation of principles of natural justice.
5. That the learned Commissioner of Income Tax (Appeals) erred in law and facts in not deciding the case on the merits after taking into account the submissions made by the appellant.
Each of the above grounds is without prejudice to one another, the appellant seeks the leave of the leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or modify otherwise any one or all the grounds of appeal either before or at the time of hearing this appeal."
ITA Nos.2732 & 2733/Bang/2017 Page 3 of 5
4. At the very outset, it was submitted by ld. AR of assessee that it is noted by CIT(A) in para 3.5 of his order that there is a delay of 168 days in filing the appeal before CIT(A) and the assessee has not even requested for condonation of delay and therefore, he dismissed both these appeals without condoning the delay in filing the appeal before CIT(A). He submitted that in fact, the assessee was not aware about the delay in filing of appeal and therefore, no application was made before CIT(A) for condonation of delay and the ld. AR of assessee who was handling the appeal before CIT(A) did not point out that there is delay in filing the appeal before CIT(A) and therefore, application should be made before CIT(A) for condonation of delay. He submitted that in the interest of justice, the matter should be restored back to the file of CIT(A) for fresh decision so that the assessee can make application for condonation of delay narrating reasonable and sufficient cause for delay of 168 days. The ld. DR of revenue supported the orders of CIT(A).
5. I have considered the rival submissions. First of all, I reproduce para 3.5 of the order of CIT (A) in Assessment Year 2010-11. The same reads as under.
"3.5 The above decisions are related to condonation of delay of only 7 and 4 days respectively but in the present case there is an extraordinary delay of 168 days and the Appellant has not even requested for condonation of delay and "sufficient cause", if any, as required by Proviso to Sec 249 of the Act to consider condonation of delay is not apparent. In the case of SRF Ltd. New Delhi vs Assessee on 14 November, 2014, the ITAT Delhi has held that:
18. On careful consideration of above contentions and submissions of both the sides, we are of the view that there is an extraordinary delay of 1163 days in filing this appeal for which assessee has to show "sufficient cause" but the cause shown by the assessee may be considered a "sufficient cause" for the intervening period when old officers left or parted with the company and till new Manager Taxation Mr. Hemant Gupta joined, meaning thereby from October 2007 to 29.2.2008, but we are unable to see any "sufficient cause"
which could justify or properly explain the delay which occurred from last date of filing the appeal as per statutory provisions of the Act to departure of Shri Suresh Chawla - AVP - Taxation i.e. from 17.6.2006 to October 2007 and from joining of Mr. Hemant K. Gupta - Manager Taxation to the date of filing this appeal i.e. from 29.2.2008 to 12.8.2009. From impugned order of the CIT(A) dated 30.3.2006, we clearly observe that Shri Suresh Chawla AVP ITA Nos.2732 & 2733/Bang/2017 Page 4 of 5 (Taxation) of the company was present at the time of delivery of the order with Shri Satya Sethi, Advocate and Shri Harsh Singhal the representative of the assessee company which reveals that Shri Suresh Chawla was well aware about the impugned order from the date of the order i.e. from 30.3.2006, therefore, delay in filing appeal was not due to ignorance but the delay was caused due to languid and inane conduct of the assessee . We also note that the date on which Mr. Hemant Kumar Gupta found relevant papers in a file folder is neither mentioned in the application for condonation of delay nor in the affidavit of Mr. Gupta. Therefore, "sufficient cause" as shown by the assessee is not acceptable in the light of ratio of the decision of Hon'ble Apex Court in the case of Chief Postmaster General and Others vs Living Media India Ltd. and Another (supra) and Pundlik Jalam Patil (Dead) by LRS vs Executive Engineer(supra). In above facts and circumstances of the present case, we are of the considered opinion that if such kind of extraordinary delay is condoned without any sufficient cause, then the provisions of prescribed limitation period would become otiose and infructuous.
19. Thus, we respectfully hold that the benefit of the ratio of the decisions of Vedabai (supra) and Mst. Katiji (supra) is not available for the assessee. On the other hand, the decisions as relied by the ld. DR i.e. decisions of Hon'ble Apex Court in the cases of Chief Postmaster General and Others vs Living Media India Ltd. and Another (supra) and Pundlik Jalam Patil (Dead) by LRS vs Executive Engineer(supra) are squarely applicable to the present case as the "sufficient case" shown by the assessee in the application for condonation of delay is neither supported by the affidavit of Mr. Hemant Kumar Gupta nor by the submissions and other contentions of the assessee. Therefore, we reach to a fortified conclusion that the assessee miserably failed in establishing and substantiating "sufficient cause", as required by the statutory provisions of the Act, for the extraordinary delay of 1163 days. Hence, present application for condonation of delay is dismissed."
6. After giving this finding in para 3.5, the CIT(A) has held in para 3.6 of his order that there is no scope to consider condonation of delay in the present case because there is no application for condonation of delay. The ld. AR of assessee has made submission before me regarding the reasons for not filing the application before CIT(A) for condonation of delay. Considering these facts and in the interest of justice, I set aside the order of CIT(A) in both years and restore the matter back to his file for fresh decision. The assessee can make an application before the CIT(A) for condonation of delay in filing the appeal ITA Nos.2732 & 2733/Bang/2017 Page 5 of 5 before CIT(A) in both these years along with the reasons for delay and evidence in support of those reasons. If the assessee makes such application within one month from the date of this order then the CIT(A) should decide afresh about condonation of delay in filing of appeal before CIT(A) for both years after providing reasoning opportunity of being heard to both sides. If CIT(A) finds it proper to condone the delay in filing appeal before him then he should decide the issue on merit also in both years.In view of this no adjudication is called for regarding the merit of the case at the present stage.
7. In the result, both the appeals filed by the assessee are allowed for statistical purposes.
Order pronounced in the open court on the date mentioned on the caption page.
Sd/-
(ARUN KUMAR GARODIA) Accountant Member Bangalore, Dated, the 21st March, 2018.
/MS/ Copy to:
1. Appellant 4. CIT(A)
2. Respondent 5. DR, ITAT, Bangalore
3. CIT 6. Guard file By order Senior Private Secretary, Income Tax Appellate Tribunal, Bangalore.