Income Tax Appellate Tribunal - Chennai
Mrs. P.S. Rajeswari, Chennai vs Assessee on 10 April, 2014
आयकर अपील य अ धकरण, 'सी' यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL " C " BENCH, CHENNAI ी ए. मोहन अलंकामणी, लेखा सद य एवं ी एस. एस. गोदारा, या यक सद य के सम! BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER.
आयकर अपील सं./ I.T.A. Nos.2293 & 2294/Mds/2013 ( नधा रण वष / Assessment Years : 2006 -07 &2007-08) Mrs. P.S. Rajeswari, The Assistant Commissioner of No.1015. "Z" Block, 6th Avenue, Vs Income Tax, Anna Nagar, Central Circle -IV(2), Chennai 600 040. Chennai 600 034.
[PAN:ACQPR0638B] (अपीलाथ#/Appellant) ($%यथ#/Respondent) आयकर अपील सं./ I.T.A. Nos.2295 to 2297/Mds/2013 ( नधा रण वष / Assessment Years : 2004-05, 2006-07 &2007-08) Mr. E.V. Perumalsamy Reddy The Assistant Commissioner of No.1015. "Z" Block, 6th Avenue, Vs Income Tax, Anna Nagar, Central Circle -IV(2), Chennai 600 040. Chennai 600 034.
[PAN:AGMPP5434D] (अपीलाथ#/Appellant) ($%यथ#/Respondent) :- 2 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
आयकर अपील सं./ I.T.A. Nos.2298 to 2301/Mds/2013 ( नधा रण वष /Assessment Years:2005-06,2006-07,2007-08 &2008-09) M/s. EVP Estates and Properties The Assistant Commissioner of Development Ltd, Vs Income Tax, th No.1015. "Z" Block, 6 Avenue, Central Circle -IV(2), Anna Nagar, Chennai 600 034.
Chennai 600 040.
[PAN:AABCE1517C] (अपीलाथ#/Appellant) ($%यथ#/Respondent) आयकर अपील सं./ I.T.A. No.2302 & 2303/Mds/2013 ( नधा रण वष / Assessment Years : 2006-07 and 2008-09) M/s. EVP Housing Chennai The Assistant Commissioner of P. Ltd, Vs Income Tax, No.1015. "Z" Block, 6th Avenue, Central Circle -IV(2), Anna Nagar, Chennai 600 034.
Chennai 600 040.
[PAN:AABCE4237H] (अपीलाथ#/Appellant) ($%यथ#/Respondent) अपीलाथ क ओर से / Appellant by : Shri. M. Vijayakumar, Advocate यथ क ओर से / Respondent by : Shri. S. Dasgupta, IRS, JCIT.
सन ु वाई क तार ख/Date of hearing : 10.4.2014.
घोषणा क तार ख /Date of Pronouncement : 17.4.2014.
आदे श / O R D E R PER BENCH:-
This batch of eleven appeals at the behest of aforesaid four assessees; for various assessment years ranging between 2004-05 to 2008-09, has arisen from different orders of the Commissioner of :- 3 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
Income Tax (Appeals)-I, Chennai dated 27.10.2010 except in ITA No.2295/Mds/2013 wherein it is dated 20.12.2010, dismissing all cases in limine for want of payment of 'admitted' tax in proceedings under section 143(3) of the Income Act 1961 (in short the 'Act').
2. At the outset, both parties point out that these appeals suffer from delay of atleast 1100 days in filing and identical condonation petitions have been preferred by all four assessees. Thus, we take up ITA No.2293/Mds/2013 as the 'lead' case.
3. In this case, it is to be seen that the appeal is time barred by 1100 days delay in filing. The assessee has filed a condonation petition dated 27.12.2013 as under:-
"1. I am the Appellant herein and as such I am well acquainted with the facts of the case.
2. I humbly submit that I am the Director of the Company M/s. EVP. Estates and Property Development Ltd. and EVP Housing Chennai Pvt. Ltd., Chennai - 600 040. My husband Mr. E.V. Perumalsamy Reddy is the Managing Director of the above companies and my son Mr. E. V. P. Santhosa Reddy is the Director of the above said ompanies. On 01-01-2008 the Income Tax Department conducted search u/ s.132 and subsequently served a notice uj s. 153A of the IT Act. In fact I was planning for filing the return of the income in the month of January 2008 for all the assesses. Accordingly I have filed the return of income and the same has been accepted by the authorities concerned.
3. I humbly submit that the Income Tax Department has seized all the original documents on 10-01-2008. My return of income for the :- 4 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
assessment year 2006-2007 and 2007-2008 was duly accepted and filed within the due date as per the provisions of the Income Tax Act. Therefore penalty levied by the Assessing Officer u] s. 271 (1
(c) of the Income Tax Act 1961 is erroneous. Therefore I have filed appeal before the Commissioner of Income Tax(Appeals-I). The said appeal was dismissed in limine on 27-10-2010 on the short ground for non -payment of tax amount.
4. I submit that the entire original documents were seized.
Therefore I was not in a position to mobilise the funds for the payment of the tax amount.
5. I submit that my husband underwent bypass surgery and was under treatment for Diabetes Mellitus Associated with Hypertension for the period from November 2010 to November 2013. He was strictly advised by the Doctors that any little strain may cause anxiety to his life itself. Therefore we did not informed to him about the legal proceedings and we were not in a position to consult our Lawyer.
6. In the circumstances the Government of TamilNadu had deposited the Award amount a sum of Rs.16,79,59,743/- on October 2012 on the file of Learned Sub-Court, Kancheepuram in the LAOP No.2 of 2011 for the land acquired from the EVP estates and properties development ltd, Chennai 600 040. However the Tax Recovery Officer has attached the said award amount under the provisions of Section 226(4) and Rule 31(11 Schedule) of the Act 1961 towards the tax liabilities of:-
(i) E.V.P. Estates and Properties Development Ltd., (the Appellant herein) PAN : AABCE1517C
(ii)E.V.P. Housing Chennai Pvt.Ltd. PAN :ACQPR0638B
(iii) Mr. E.V.Perumalsamy Reddy, PAN: AGMPP5434D
(iv) Mrs. P.S. Rajeswari, PAN:ACQPR0638B and
(v)Mr. E.V.P. Santhosa Reddy, PAN:AGYPR3116N We filed a writ petition in W.P.No.35073 of 2013 before the Hon'ble High Court of Madras for the following relief:-
"To' issue a Writ of Mandamus directing the Respondents to lift the attachment proceedings initiated :- 5 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
by the 3rd Respondent u/s.226(4) in Form No.LT.C.P.10 under Rule 31 of the Second Schedule of Income Tax. Act, 1961 in respect of the deposit amount of Rs.16, 79,59, 743/ -(Rupees Sixteen Crores Seventy Nine Lakhs Fifty Nine Thousand Seven Hundred and Forty Three only) made by the Special Tahsildar SIPCOT, Sriperumpudur, in favour of thePetitioner in L.A.o.P.No.2 of 2011 on the file of Sub-Court, Kancheepuram to enable the Petitioner to pay the returned tax. amount payable totally a sum of Rs.10,06,41,779/-(Rupees Ten Crores Six Lakhs Forty One Thousand Seven Hundred and Seventy Nine only)for the Assessment Years 2005 - 2006 to 2008-
2009 of the Assessees viz. (1) the Petitioner, (2) EVP Housing Chennai Pvt. Ltd., (3) E.V. Perumalsamy Reddy (4) Mrs. P.S.Rajeswari, and (5) E. V:P. Santhosa Reddy to the Respondents"
7. I submit that in view of the proceedings passed by the recovery officer in TRC.No.102/CR-IV(2)/10-11 dated 06-11- 2013 we have filed affidavit before the Recovery Officer giving consent to adjust the compensation awarded for land acquisition lying in the Hon'ble Sub-Court, Kancheepuram against the arrears of Tax for the Appellant and other assessee viz. E.V.P. Housing Chennai Pvt. Ltd. PAN:ACQPR0638B, Mr. E.V.Perumalsamy Reddy, PAN: AGMPP5434D, Mrs. P.S. Rajeswari, PAN No.ACQPR0638B and Mr. E.V.P. Santhosa Reddy, PAN:AGYPR3116N a sum of Rs.10,06,41,779/- Hence the Appellant is entitled to contest this appeal on merit. Now the Tax Recovery Officer conducted survey u] s.133A(3)(ia) of IT Act. Hence I am advised to file this appeal. Now there is a delay of 1127 days in filing this appeal. The delay is not wilful or wanton. It is only due to the reasons stated above. Hence this application to condone the delay of 1127 days in filing this appeal. If the said delay is condoned no prejudice would be caused to the Respondent and on the other hand if the delay is not condoned I would be put to irreparable loss and grave hardship. I have prima facie case and balance of convenience is in my favour. Under the said circumstances the delay of 1127 days in filing the above appeal against the order dated 20-12-2010 passed by the Learned Commissioner of Income Tax(Appeals-I) in I.T.A.No.29J /09-10 may be condoned.
It is therefore, prayed that this Hon'ble Court may be pleased to condone the delay of 1127 days in filing the appeal against the order dated 27-10-2010 passed by the Respondent :- 6 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
i.e. Learned Commissioner of Income Tax(Appeals-I) in I.T.A.No.291 /2009-10 and thus render justice."
In this backdrop, the assessee submits that since delay of 1100 days stands explained and the issue of payment of admitted tax has been adjudicated in writ proceedings before the hon'ble jurisdictional high court, the matter be restored back to the CIT(A) for decision on merits.
4. The Revenue strongly argues that the appeal is hopelessly time barred and condonation petition does not merit acceptance.
5. We have heard both parties and gone through the case file. We find that while framing assessment in order dated 31.12.2009 in furtherance of a 'search' conducted on 10.01.2008, the Assessing Officer had made addition of M25 lakhs as 'unaccounted'' investments.
The assessee filed appeal. The CIT(A) has dismissed her appeal in limine on the ground of non payment of admitted tax. Before us, the assessee has filed the abovesaid condonation. A perusal thereof makes it clear that this is not the case that she herself or her husband Shri. E.V. Perumalsamy Reddy was not aware of the CIT(A) order under challenge. So, it is not a case of lack of knowledge about the CIT(A) 's order. The assessee's averments in the condonotion petition :- 7 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
read that her husband had undergone bypass surgery and treatment of diabetes mellitus associated with hypertension from November, 2010 to November,2013. She supports this by way of a medical certificate dated 16.11.2013 issued by Mohan Nursing Home, Chennai.
However, this only appears to be an untenable explanation. Her contention about Shri.Reddy's sudden illness November, 2010 to November, 2013 and sudden regaining of health is not supported by any evidence that she herself could not have pursued legal remedies in the treatment period. In this regard, the nursing home's certificate only appears to be an after-thought exercise in absence of other details. Moreover, in 'tribunal's proceedings, the assessee's/her husband's personal appearance is not required. Coupled with this, she fails to explain each and every day's delay from 16th November, 2013 till the date of filing the appeal i.e. 30.12.2013 as she is supposed to act with due diligence. Therefore, we hold that the assessee has failed to satisfactorily explain 1100 days delay in filing of this appeal. It is a trite preposition of law that in delay matters, liberal and lenient approach to be adopted. But in this case, there is no plausible explanation much less a satisfactory one. In these circumstances, delay of 1100 days does not deserve to be condoned on mere asking.
:- 8 -: I.T.A.Nos. 2293 to 2303/Mds/2013.
Therefore, this assessee's appeal ITA 2293/Mds/2013 is dismissed as suffering from delay and laches.
6. Same order to follow in ITAs Nos.2294 to 2303/Mds/2013.
7. To sum up, all appeals are dismissed as time barred.
Order pronounced on Thursday, the 17th of April, 2014, at Chennai.
Sd/- Sd/-
(ए. मोहन अलंकामणी) (एस. एस. गोदारा)
लेखा सद य या यक सद य
(A.MOHAN ALANKAMONY) (S.S. GODARA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
चे#नई/Chennai,
$दनांक/Dated:17.04.2014.
KV
आदे श क त'ल(प अ)े(षत/Copy to:
1. अपीलाथ /Appellant
2. यथ / Respondent
3. आयकर आयु+त (अपील)/CIT(A)
4. आयकर आयु+त/CIT
5. (वभागीय त न.ध/DR
6. गाड फाईल/GF.