Income Tax Appellate Tribunal - Raipur
Ashok Kumar Wadhwani, Raipur, Raipur vs Income Tax Officer, Ward-1(2), Raipur, ... on 12 July, 2024
आयकर अपीलीय अिधकरण, रायपुर ायपीठ, रायपुर
IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR
ी रिवश सूद, ाियक सद एवं ी अ ण खोड़िपया, लेखा सद के सम ।
BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
(ITA No. 117 & 118/RPR/2024)
(Assessment Year: 2014-15 & 2016-17)
Ashok Kumar Wadhwani., V Income Tax Officer, Ward-1(2),
Ujjwal Udyog, Sinodha, Neora, Tilda, S Aayakar Bhawan, Civil Lines, Raipur
Raipur, Chhattisgarh, 493114
PAN: AAHPW1400B
(ITA No. 120/RPR/2024)
(Assessment Year: 2016-17)
Vijay Kumar Chhattani, V Income Tax Officer, Ward-1(2),
S.S.D. Agro Tech Building, Village Tulsi, S Aayakar Bhawan, Civil Lines, Raipur Neora, Tilda, Chhattisgarh, 493114 PAN: AFAPC4410R (अपीलाथ /Appellant) . ( यथ / Respondent) .
िनधा रती क ओर से /Assessee by : Shri Abhishek Mahavar, CA
राज व क ओर से / Revenue by : Shri Satya Prakash Sharma, Sr. DR
सुनवाई क तार ख / Date of Hearing : 10.07.2024
घोषणा क तार ख / Date of : 12.07.2024
Pronouncement
आदे श / O R D E R
Per Bench:
The captioned appeals are filed by the aforesaid assessees against the separate orders of Commissioner of Income Tax (Appeals), NFAC, Delhi, (in short "Ld. CIT(A)"), for the respective AY's, u/s 250 of the Income Tax Act, 1961(in short "The Act"), which in turn have arises from the separate orders of Income Tax Officer, Ward-1(2), Raipur (in short "Ld. AO"), passed u/s 143(3).
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ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani
2. At the very beginning of the hearing of the aforesaid appeals, it has been pointed out by the registry that all these appeals under consideration are barred by limitation, involving delay of 366, 597 and 161 days in filing of the appeals. When the said defect was confronted to the Ld. AR, he placed before us, the applications along with affidavits of the assessees explaining the reasons for delay. The applications for condonation of delay and affidavits therewith in the aforesaid cases are observed to be identical having similar facts and reasons therein, therefore, for the sake of clarity the application in ITA No.117/RPR/2024 along with affidavit submitted before us, is extracted hereunder: 3
ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani 4 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani 5 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani 6 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani 7 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani
3. Based on aforesaid condonation petition and supporting affidavit, Ld. AR submitted that all the communications by Ld. CIT(A) are send on the email ID of the assessee which was mentioned in form no. 35, wherein assessee have mentioned 'Yes' against the column "Whether notices / communication may be sent on email ?". However, such communications could not be attended by the assessee for the reason that the email ID, which was furnished in form No. 35 was created solely for the compliance of mandatory requirements of Income Tax Act and the appellant does not carry out his communications through emails either on work front or on personal matters. The application for condonation further explains that it is also possible that notifications through SMS were sent to the assessees, but on account of deluge of SMSs both junk as well as promotional these notifications were also missed, as well. It is further stated that all the communication were sent to the email ID and since the Appellant being not an active user of emails was unaware of the order passed by the Ld. CIT(A), who was made aware about the same only after receiving call with respect to recovery of tax demand, thereby leading to a substantial delay in filing of appeal. It is the submission that the case of the appellant is strong on merits, and it is therefore, requested to kindly condoned the inadvertent delay cause due to non- receipt of order. Ld. AR on being confronted, that whether the emails are not received on the email ID which was mentioned in form No. 35 submitted before the First Appellate Authority, he apprised us that on being checking with the 8 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani assessee's ID on Income Tax Portal, it is detected that the email are received on the email ID given in form 35 by the assessee, as well. With such submissions, it was the prayer that the delay involved in the aforesaid appeals may be condoned.
4. After hearing the contentions of Ld. AR, the issue pertaining to condonation of delay in the present cases is confronted to the Ld. Sr. DR, upon which he strongly raised his objections, stating that the delay involved in the present cases are inordinate and exorbitant, also the reasons assigned by Ld. AR are indicating only the callous behavior of the assessee towards the compliance of tax matters, there was no plausible explanation by the assessee to show that the delay was beyond control of the assessee, it was only on account of lackadaisical approach of the assessee. Therefore, the condonation of delay requested in these cases should not be permitted.
5. We have considered the rival submissions regarding delay involved in filing of the present cases, on perusal of the submission of the assessee, it is emanating that the assessee itself has opted for communications through Email ID for which Email ID's were provided and in the field enquiring response regarding "Whether notices / communications may be sent on Email ID?", the Appellant themselves have opted as "Yes". The Plea of the appellant that the order was communicated on email ID of the assessee but the assessee was not 9 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani an active user of the email's and, therefore, such communication left his attention when the same was dropped in his email inbox. The reason assigned that when the call for demand of recovery was received by the assessee then only it has come to his notice that an order was passed by the Ld. CIT(A). Such contentions of the Ld. AR are incomprehensible and cannot be subscribed to as the same cannot be construed to be a sufficient cause beyond the control of assessee. Such approach of the assessee cannot be summarily accepted in absence of any plausible explanation for the delay involved therefore, the conduct of assessee found to be under lackadaisical approach and therefore, the inordinate delay of 366, 597 and 161 days involved in the aforesaid cases does not merit acceptance.
6. It is pertinent to mentioned here that this tribunal has taken a view, while adjudicating identical cases by dismissing the appeal of the assessees on account of condonation of delay itself. The conscious decision of the tribunal in its earlier orders dealing with the issue of condonation of delay are further approved by the Hon'ble Jurisdictional High Court, therefore, having identical facts and circumstances, in absence of any different explanation, we do not see any plausible reason to decide the aforesaid matters seeking condonation of delay, differently than the same were decided in its earlier orders. Under such 10 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani facts and circumstances, the request of the assessee for seeking condonation of delay stands rejected.
7. On this aspect, we draw support from the order of coordinate bench of the ITAT, Mumbai in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in ITA No.6240/MUM/2007 for A.Y.1999-2000, dated 23.03.2020, had held that where an application for condonation of delay has been moved bonafide, then, the Court would normally condone the delay, but where the delay has not been explained at all and in fact there is an unexplained and inordinate delay coupled with negligence or sheer carelessness, then, the Jaspal Singh Hora (HUF) Vs. ITO, Ward-2(1), Raipur ITA No. 183/RPR/2022 discretion of the court in such cases would normally tilt against the applicant. Reverting to the facts of the present cases, as observed by us hereinabove, as the assessee had not only remained negligent regarding the process of law and had filed the appeal before us with inordinate delay but had also failed to come forth with any plausible explanation as regards the reasons leading to the said delay, therefore, there appears to be no reason to adopt a liberal view and condone the same. Also, we may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting with one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a 11 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.
8. We may herein observe that in the case of state of West Bengal Vs. Administrator, Howrah 1972 AIR SC 749, the Hon'ble Apex Court had held that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay. the expression "sufficient cause" will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as observed by us hereinabove, as the assessee appellant in the present case had come forth with any cogent explanation elaborating the acceptable reasons leading to the delay in filing the present appeal, and had adopted a lackadaisical approach, therefore, there can be no reason to condone the inordinate delay involved in preferring of the captioned appeals.
9. Also, we may herein draw support from a "Third Member" decision of the Tribunal, in the case of Jt. CIT Vs. Tractors and Farm Equipment Ltd. (2007) 104 ITD 149 (Chennai), wherein a fine distinction was drawn between normal delay and inordinate delay. It was held as under:
"A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration 12 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case no such consideration may arise and such a case deserves a liberal approach."
10. Also, as observed by the Hon'ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. AIR (1962) 361 (SC) that seeker of justice must come with clean hands, therefore, now when in the present appeal the assessee appellant had failed to come forth with any substantial clarification to support the application for condonation elaborating in the backdrop of sufficient reason that would justify condonation of the substantial delay involved in preferring of the captioned appeal, therefore, we decline to condone the same and, thus, without adverting to the merits of the case dismiss appeal of the assessee as barred by limitation.
11. Our aforesaid view is squarely covered by the orders of Hon'ble Jurisdictional High Court of Chattisgarh in the case of Vidya Shankar Jaiswal Vs. The Income-tax Officer, Ward-2, Ambikapur, Tax Case No. 86 of 2024, dated 12.04.2024. Wherein the observations of the Hon'ble High Court are culled out as under:
"9. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.
10. From perusal of the documents available on record, it transpires that as per the information obtained from the Annual Information Return, it was observed by the AO that though the assessee made cash deposits of Rs. 34,67,700/- in his savings bank account during the year under consideration but had not filed his return of income. As the assessee failed to come forth 13 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani with any explanation as regards the source of the aforesaid cash deposits, the AO reopened his case under Section 147 of the Act. During the course of the assessment proceedings, though the AO had issued several notices to the assessee but he did not comply with the same. Accordingly, the AO vide his order passed under Section 144 read with Section 147 of the Act dated 16.12.2018, determined the income of the assessee at Rs.34,67,700/- after treating the entire amount of cash deposits of Rs.34,67,700/- as the assessee's unexplained money under Section 69A of the Act. The assessee carried the matter in appeal before the CIT(Appeals) but without success. As the assessee had failed to participate in the course of the proceedings before the CIT(Appeals), therefore, he dismissed the appeal of the assessee after considering material available on record.
11. Though the AO had provided sufficient opportunities to the assessee to represent his case, it was the assessee who, for reasons best known to him, despite being well informed about the ongoing assessment proceedings, had not only failed to file his return of income but had also evaded his participation in the said proceedings. Also, the assessee had failed to file any reply to the notices that were served on him during the assessment proceedings. Accordingly, the A.O., in the absence of any return of income and also any explanation forthcoming about the source of the cash deposits in the bank account of the assessee, who had chosen to lie low and neither participate in the assessment proceedings nor furnished any reply to the notices that were issued to him, thus, was constrained to treat the cash deposits of Rs.34,67,700/-(supra) as the assessee's unexplained money under Section 69A of the Act, and framed the best judgment assessment vide his order under Sections 144/147 of the Act vide its order dated 16.12.2018. Even before the CIT(Appeals), the conduct of the assessee was no better than that he had adopted during the assessment proceedings. Although the CIT(Appeals) afforded sufficient opportunities to the assessee to put up his case on merits before him but he had once again adopted an evasive approach and on no occasion, participated in the proceedings before the first appellate authority. The CIT(A) has given proper opportunity to the assessee to participate in the hearing. Four notices were issued to the assessee informing the assessee about the date of hearing but the assessee did not participate in the proceedings before the CIT(A). The CIT(Appeals) taking notice of the fact that the assessee had adopted an evasive approach 14 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani and, despite being well informed, had not only chosen not to participate in the proceedings before him but also, despite sufficient opportunities, had not placed on record any submissions whatsoever, whether documentary or otherwise to substantiate his claim that the A.O had erred in treating the cash deposit of Rs.34,67,700/- in his bank account as unexplained money under Section 69A of the Act, thus, upheld the order passed by the AO under Sections 144/147 of the Act, dated 16.12.2018.
12. In the course of the proceedings before the Tribunal, the conduct of the assessee remains the same as was there before the learned CIT(A) and the A.O. The appeal filed by the assessee before the learned ITAT involves a delay of 166 days. On a careful perusal of the facts leading to the delay in filing of the present appeal, the reason that the bonafides of the reasons leading to the delay in filing of the appeal by the assessee cannot be gathered from the application filed by the assessee seeking condonation of the delay involved in filing the appeal. The facts that can be gathered from the aforesaid application of the assessee are, viz. (i) the assessment order was passed by the A.O on 16.12.2018 and was issued on 29.12.2018 without any reasons for keeping the same with him; (ii) reasons recorded under Section 148(2) of the Act were not supplied to the assessee by the A.O; and
(iii) appeal of the assessee was dismissed by the CIT(Appeals) vide an exparte order dated 29.03.2023 etc.
13. Under section 69A of the Act, what is provided is that if an assessee is found to be the owner of any money, jewellery or any other valuable articles and such money is not recorded in the books of account and fails to offer any explanation about the nature and source thereof or in case any such explanation, if offered, is not satisfactory in the opinion of the AO, then it may be deemed to be the income of the assessee for such financial year.
Ultimately, therefore, it would be dependent on the nature of the explanation submitted by the assessee and the satisfaction of the AO about the acceptability thereof, which is the sine qua non for invoking the provisions contained in section 69A of the Act. In the present case, the assessee has failed to file his return of income but had also evaded his participation in the proceedings. In absence of any plausible explanation of the assessee as regards the delay in filing of the appeal, his request for condonation of the same, when read in the backdrop of his conduct before the authorities below 15 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani cannot be summarily accepted on the very face of it. There is no substance in the claim of the assessee that the delay involved in filing of the appeal was due to bonafide reasons, as the same clearly smacks of the lackadaisical conduct on his part. In the totality of the facts leading to the delay in filing of the appeal read with the conduct of the assessee appellant before the AO and the CIT(Appeals), the request of the assessee for condoning the delay involved in filing of the appeal does not merit acceptance.
14. The learned ITAT, vide paragraph 12 has observed that "In fact, if I condone the delay involved in the present case where the assessee had not even participated in the proceedings either before the A.O or CIT (Appeals), then, it would send a wrong message and would lay down a wrong precedent for the times to come. ..."
15. As has been rightly relied on by the learned ITAT that in the case of State of West Bengal Vs. Administrator, Howrah, reported in 1972 AIR SC 749, the Hon'ble Apex Court had held that the expression "sufficient cause"
should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay. The expression "sufficient cause" will always have relevancy to reasonableness. The action which can be condoned by the Court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as the assessee appellant in the present case is habitually acting in defiance of law, where he had not only delayed in filing of the present appeal but also had adopted a lackadaisical approach and not participated in the course of the proceedings before the CIT(A), therefore, there can be no reason to allow his application and condone the substantial delay of 166 days involved in preferring of the captioned appeal. Now, when in the present appeal the appellant / assessee had failed to come forth with any good and sufficient reason that would justify condonation of the substantial delay involved in preferring of the captioned appeal, we hereby dismiss the present appeal upholding the reasons assigned by the learned ITAT.
16. Resultantly, this appeal stands dismissed."
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ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani
12. Also, the Hon'ble High Court of Chattisgarh in its order passed in the case of M/s BPS Infrastructure Vs. ITO, Ward-1(3), Raipur, Tax Case No, 87 of 2024, dated 12.04.2024, after relying on the judgments of the Hon'ble Apex Court in State Of West Bengal Vs. Administrator, Howrah, reported in 1972 AIR SC 749 and Ramlal, Motilal, and Chotelal Vs. Rewa Coalfields Ltd reported in AITR (1962) 361 (SC), had approved the order of the Tribunal which had declined to condone the delay involved in filing of the appeal.
13. We, thus, in light of the aforesaid decision by the tribunal which was under binding guidance of the judgment of Hon'ble Jurisdictional High Court in the case of Vidya Shankar Jaiswal Vs. The Income-tax Officer, Ward-2, Ambikapur, Tax Case No. 86 of 2024, dated 12.04.2024, and M/s BPS Infrastructure Vs. ITO, Ward-1(3), Raipur, Tax Case No, 87 of 2024, dated 12.04.2024, therefore, respectfully following the mandate of law accorded by the Hon'ble Jurisdictional High Court, in absence of any justifiable reason or sufficient cause for delay in filing of the appeal in the present cases, we reject the condonation request of the assessees, wherein the assessee/ appellant have failed to come forth with any substantial clarification to support the application for condonation, elaborating in the backdrop of sufficient reasons that would justify condonation of the exorbitant delay of 366, 597 and 161 days involved in preferring of the captioned appeals, therefore, we decline to condone 17 ITA No.117, 118 & 120/RPR/2024 Ashok Kumar Wadhwani and Vijay Kumar Chhattani the same and, thus, without adverting to the merits of the cases, dismiss appeals of the aforesaid assessee's as barred by limitation.
14. In the result, without dealing with the merits of the grounds raised in the present cases, the aforesaid appeals of the assessee's in ITA No. 117, 118 & 120/RPR/2024 are dismissed as not maintainable in terms of our aforesaid observations.
Order pronounced in the open court on 12/07/2024.
Sd/- Sd/-
(RAVISH SOOD) (ARUN KHODPIA)
ाियक सद / JUDICIAL MEMBER लेखा सद / ACCOUNTANT MEMBER
रायपुर/Raipur; िदनांक Dated 12/07/2024
Vaibhav Shrivastav
आदे श की ितिलिप अ ेिषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant-
2. थ / The Respondent-
3. आयकर आयु (अपील) / The CIT(A),
4. आयकर आयु / CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur
6. गाड फाईल / Guard file.
// स या पत ित True copy // आदे शानु सार/ BY ORDER, (Assistant Registrar) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur