Income Tax Appellate Tribunal - Agra
Shanti Swaroop Goyal, Agra vs Assessee on 20 June, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
AGRA BENCH, AGRA
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND
SHRI A.L. GEHLOT, ACCOUNTANT MEMBER
ITA No.75/Agra/2013
Assessment Year: 2007-08
Shri Shanti Swaroop Goyal, vs. Dy. Commissioner of Income Tax-1,
20, Nehru Nagar, Agra. Agra.
(PAN : AEXPG 6869C).
(Appellant) (Respondent)
Appellant by : Shri Pankaj Gargh, Advocate.
Respondent by : Shri K.K. Mishra, Jr. D.R.
Date of hearing : 20.06.2013
Date of pronouncement : 05.07.2013
ORDER
PER A.L. GEHLOT, ACCOUNTANT MEMBER:
This is an appeal filed by the assessee against the order dated 21.11.2011 passed by the ld. CIT(A)-I, Agra for the A.Y. 2007-08.
2. The assessee has raised the following grounds of appeal :-
"1. Because the Ld. CIT(A) has erred in law in confirming the action of the Assessing Officer in taking the sale consideration of the property at Vrindavan referring to the provision of section 50C of the 2 ITA No.75/Agra/2013 A.Y. 2007-08 Act. The Ld. CIT(A) has further erred in ignoring the facts of the case.
2. Because the Ld. CIT(A) has wrongly, illegally and arbitrarily confirmed the disallowance of interest of Rs.1,67,422/- made by the Assessing Officer which was claimed by the assessee under the head income from House Property.
3. Because the ld. CIT(A) has erred both in law and on facts in confirming the addition of Rs.73,145/- being the amount of loan processing charges paid to bank made by the Assessing Officer. The processing charges was adjusted out of the interest received/paid. The addition is totally wrong and arbitrary.
4. Because the ld. CIT(A) has wrongly illegally and arbitrarily confirmed the adhoc disallowance of Rs.1,01,470/- being 5% of labour expense made by the Assessing Officer. The disallowance has been made without pointing out any particular expense of disallowable nature.
5. Because the Ld. CIT(A) has erred in law and on facts in confirming the disallowance of interest of Rs.1,07,365/- made by the Assessing Officer by applying the provision of section 36(1)(iii) of the Act. Considering the facts of the case the disallowance is totally wrong and arbitrary and the Ld. CIT(A) should have deleted the same instead of confirming the action of the Assessing officer."
3. The assessee has filed this appeal late by 340 days. The assessee has filed application for condonation of delay. The relevant abstract of the same is as under:-
"It is respectfully submitted :-
1. That the order of Ld. CIT(A) was received on 14.03.2012 as per he dispatch register of Ld. CIT(A) office. The appellate file for the relevant assessment year in which the order received from Ld. CIT(A) 3 ITA No.75/Agra/2013 A.Y. 2007-08 was kept was misplaced in the office of the assessee counsel and hence the assessee's counsel escaped the attention to file the appeal before the Hon'ble Tribunal.
2. That on receipt of penalty order u/s 271(1)(c) on 01.03.2013 the assessee counsel recollected the fact that the appeal before the Hon'ble Tribunal against the order of Ld. CIT(A) has been left to be filed.
3. That now the assessee is filing the appeal before the Hon'ble Tribunal. The delay in filing the appeal, as mentioned above, is due to reasonable cause.
It is, therefore, requested that the delay may kindly be condoned and the appeal be decided on merits by giving opportunity to the assessee on being heard."
4 This appeal is heard for limited purpose i.e. on condonation application. The appeal is not heard on merit.
5. The ld. Authorised Representative argued the condonation application on the basis of assessee's condonation application and submitted that the file was misplaced in the office of the assessee's Counsel, hence the assessee's Counsel escaped attention to file the appeal before the Tribunal. The ld. Authorised Representative further submitted that on receipt of penalty order under section 271(1)(c) of the Income Tax Act, 1961 ('the Act' hereinafter) on 01.03.2013, he recollected the fact and the appeal was filed on 20.03.2013. 4 ITA No.75/Agra/2013
A.Y. 2007-08
6. The ld. Departmental Representative, on the other hand, objected to the condonation of delay in filing the appeal.
7. We have heard the ld. Representatives of the parties and records perused. It has been noticed that on identical set of facts the Allahabad Bench of I.T.A.T. in the case of M/s. Sushila Devi & Company vs. ITO in ITA No.33/Alld/2012 vide order dated 07.06.2013 has rejected the condonation application of the assessee. The relevant finding of the Tribunal in the said case is reproduced as under :-
"4. We have considered the rival submissions and the material available on record. It is not in dispute that the assessee filed the appeal beyond the time limit prescribed under law and the appeal of the assessee is time barred by 525 days. It is stated that earlier the counsel Shri Anand Kumar Agarwal, ITP has advised the assessee not to take any step in the matter because in the set aside proceedings, the Assessing Officer will give further opportunity to file submissions and the evidences. In the application for condonation of delay and affidavit, it is clearly stated that as all the consequential proceedings went against the assessee and the ITO passed consequential order u/s. 263/144 dated 30.12.2011, therefore, the assessee consulted Sr. Counsel, who has advised the assessee to file appeal against the order u/s. 263 of the IT Act before the Tribunal. From the above averments, it is clear that after passing of the order u/s. 263 of the IT Act when the assessment order was set aside, the matter was again taken up by the Assessing Officer in assessment proceedings and in the consequential assessment order u/s. 263/144 of the IT Act dated 30.12.2011, the matter was decided against the assessee. It would mean that till the assessment order was passed by the Assessing Officer deciding the issue against the assessee as per direction given through the order u/s. 263, the assessee acted on the advice of Shri Anand Kumar Agarwal, ITP not to file any appeal before the Tribunal because they were aware that the Assessing Officer shall given further 5 ITA No.75/Agra/2013 A.Y. 2007-08 opportunity to file submissions and evidences. There was nothing wrong in such an advice given by Shri Ananad Kumar Agarwal, ITP because the ld. CIT in the impugned order has clearly mentioned that the Assessing Officer has wrongly allowed tax credit benefit to the assessee because TDS certificates bear three different PANs. This fact is admitted by the assessee during the proceedings before him. It was also found by the ld. CIT that the assessee failed to deduct tax u/s. 194-I of the IT Act. Once the fact is admitted before the ld. CIT in proceedings u/s. 263 that the tax credit has been wrongly allowed in favour of the assessee, the proper course for the assessee would have been to satisfy the Assessing Officer as to for what correct amount, the credit should be given to the assessee and the assessee shall have to satisfy the Assessing Officer whether the assessee was liable for deduction of tax u/s. 194-I of the IT Act. Therefore, the advice given by Shri Anand Kumar Agarwal, ITP was in accordance with the observation given by the ld. CIT(A) in the impugned order. It is when the assessee failed to satisfy the Assessing Officer in the set aside proceedings and the Assessing Officer passed the order on 30.12.2011 against the assessee, the assessee suddenly created a story of seeking advice from Sr. counsel for filing the appeal before the Tribunal against the order u/s. 263 of the IT Act. The ld. Counsel for the assessee submitted that advice of Sr. counsel, Shri K.K. Srivastava, Advocate was taken in the matter for filing the appeal before the Tribunal, but his name is not disclosed in both the affidavits of partner of assessee firm and Shri Anand Kumar Agarwal, ITP. The name of Sr. counsel is also not disclosed in the application filed for condonation of delay. No advice of Shri K.K. Srivastava, Advocate has been brought on record in support of the averments above. It is interesting fact that this appeal was originally filed with the power of attorney of Shri K.K. Srivastava, Advocate and when the appeal was taken up for hearing, the assessee disowned the capability and capacity of Shri K.K. Srivastava, Advocate to argue the present appeal and on the next date of hearing, the counsel was changed and the matter was entrusted to Shri N.C. Agawal, C.A. and his power of attorney was filed in the paper book on 01.11.2012. It is also interesting to note that the paper book filed on behalf of the assessee on 01.11.2012 bears the signature of Shri Anand Kumar Agarwal, ITP, who according to the assessee had given a wrong advice to him not to file any appeal before the Tribunal and was again engaged in 6 ITA No.75/Agra/2013 A.Y. 2007-08 prosecuting the present appeal on behalf of the assessee. Hon'ble M.P. High Court in the case of CIT vs. Khemraj Laxmichand, 114 ITR 75 held that there is no general proposition that mistake of counsel is always a sufficient ground. It is always a question of fact whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. In the present appeal, the assessee claimed that it was a mistake of Shri Anand Kumar Agarwal, ITP to give a wrong advice not to file appeal before the Tribunal against the order u/s. 263 because the Assessing Officer in the set aside proceedings would give further opportunity to file submissions and evidences. When in the set aside proceedings, the Assessing Officer again decided the matter against the assessee in the order dated 30.12.2011 u/s. 263/144 as per application for condonation of delay, the assessee suddenly woke up to file the present appeal before the Tribunal. Therefore, there is an ulterior motive and purpose in filing the present appeal before the Tribunal against the order u/s. 263 because the assessee not only lost the matter before the CIT, but also before the Assessing Officer in the set aside proceedings. The assessee, therefore, cannot be held to have acted bonafidely. We may also note here that the assessee at the appellate proceedings before us again disowned Shri N.C. Agarwal, C.A. and Anand Kumar Agarwal, ITP. The conduct of the assessee clearly shows that the assessee with motive and ulterior purpose filed the present appeal. However, the assessee failed to disclose any sufficient cause for filing the appeal beyond the period of limitation. We may also note here that when the matter was taken up on 12.04.2013, same was adjourned on the request of counsel, who wanted to file more material in respect of condonation of delay. However, no material is furnished before us to support the petition for condonation of delay. Considering the above discussion, it is clear that the assessee deliberately did not file the appeal before the Tribunal within time prescribed under law and it is only when in the re-assessment proceedings u/s. 144/263, the assessee lost the matter before the Assessing Officer, the assessee filed present appeal before the Tribunal. The facts disclosed above clearly prove that the assessee has no sufficient cause to explain the delay in filing the appeal.7 ITA No.75/Agra/2013
A.Y. 2007-08
5. Now, it would be appropriate to refer to some of the judicial pronouncements on the issue of delay in filing the appeals. In the case of Hind Development Corpn. Vs. ITO, 118 ITR 873, the Calcutta High Court held that a Tribunal can condone the delay if there was sufficient cause for the delay in the submission of the appeal. In the case of Vedabai alias Vijayanatabai Baburao Patil vs. Shantaram Baburao Patil, 253 ITR 798 (SC), where it was held that while exercising discretion under section 5 of the Limitation Act, 1963, to condone delay for sufficient cause in not filing the appeal within the period prescribed, Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. The Court observed that whereas in the former, consideration of prejudice to the other side will be a relevant factor and calls for a more cautious approach. In the latter case no such consideration may arise and such a case deserves a liberal approach. Now, in the present case delay is not of a few days but of 525 days. Besides, there is absolutely no valid explanation/reason for the delay. In the case of CIT vs. Ram Mohan Kabra, 257 ITR 773, the Hon'ble Punjab & Haryana High Court has observed that where the Legislature spells out a period of limitation and provides for power to condone the delay as well as, such delay can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. It is a settled principle of law that provisions relating to the specified period of limitation must be applied with their rigour and effective consequences. In this case delay for filing the appeal late for only a few days was not condoned. In the case of Asstt. CIT vs. Taggas Industries Development Ltd., 80 ITD 21 (Cal.), Tribunal, Calcutta Bench, Calcutta did not condone the delay for filing the appeal late by 13 days because the delay was not due to sufficient cause. Thus, relying on the above judgments, we hold that assessee failed to explain delay in filing the appeal was due to sufficient cause. In view of the above discussion, we do not find any justification to condone the delay in filing the present appeal. The appeal is, therefore, treated as time barred. The same is, accordingly, dismissed in limine."8 ITA No.75/Agra/2013
A.Y. 2007-08
8. In the case under consideration, the submission of the assessee was that the file was misplaced at the office of assessee's Counsel. This submission of the ld. Authorised Representative is without supporting evidence. The fact of filing of appeal came to the notice of the assessee only when penalty notice is received. It means to improve the position of assessee this appeal is filed. Such ground is not sufficient and reasonable one for condoning the delay. In the light of detailed discussions made by the I.T.A.T., Allahabad Bench in the above order, we follow the same, in order to maintain consistency and in the light of the fact, application for condonation of delay is rejected.
9. Since we rejected the assessee's condonation application and appeal of the assessee is dismissed in limine, we are not expressing any opinion on the merit of the case.
10. In the result, appeal filed by the assessee is dismissed in limine.
(Order pronounced in the open Court)
Sd/- Sd/-
(BHAVNESH SAINI) (A.L. GEHLOT)
Judicial Member Accountant Member
PBN/*
Copy of the order forwarded to:
Appellant/Respondent/CIT (Appeals) concerned/CIT concerned/ D.R., ITAT, Agra Bench, Agra/ Guard File.
By Order Sr. Private Secretary Income-tax Appellate Tribunal, Agra True Copy