Kirpal Kaur, Ludhiana v. ITO, Ludhiana

ITA 106/CHANDI/2011 | 2005-2006
Pronouncement Date: 24-11-2011 | Result: Dismissed

Appeal Details

RSA Number 10621514 RSA 2011
Bench Chandigarh
Appeal Number ITA 106/CHANDI/2011
Duration Of Justice 9 month(s) 27 day(s)
Appellant Kirpal Kaur, Ludhiana
Respondent ITO, Ludhiana
Appeal Type Income Tax Appeal
Pronouncement Date 24-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 24-11-2011
Date Of Final Hearing 14-11-2011
Next Hearing Date 14-11-2011
Assessment Year 2005-2006
Appeal Filed On 27-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHE B CHANDIGARH BEFORE MS SUSHMA CHOWLA JUDICIAL MEMBER AND SHRI MEHAR SINGH ACCOUNTANT MEMBER ITA NO.106 /CHD/2011 ASSESSMENT YEAR :2005-06 PAN: SMT. KIRPAL KAUR VS. INCOME TAX OFFICER CHANDER NAGAR LUDHIANA. WARD VII(1) LUDHIANA. (APPELLANT) (RESPONDENT) ITA NO.107 /CHD/2011 ASSESSMENT YEAR :2005-06 PAN: SH. BALBIR SINGH VS. INCOME TAX OFFICER CHANDER NAGAR LUDHIANA. WARD VII(1) LUDHIANA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. DEEPAK AGGARWAL RESPONDENT BY: SMT. JAISHREE SHARMA DR DATE OF HEARING:17.11.2011 DATE OF PRONOUNCEMENT:24.11.2011 ORDER PER MEHAR SINGH AM THESE TWO APPEALS FILED BY DIFFERENT ASSESSES ARE D IRECTED AGAINST SEPARATE ORDERS OF THE CIT(A)-II LUDHIANA EACH DATED 12.08.2010 PASSED UNDER SECTION 250(6) OF THE INCOME-TAX ACT 1961 (H EREINAFTER REFERRED TO IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2005-06. AS THE ISSUES INVOLVED IN BOTH THE APPEALS ARE COMMON THESE WERE HEARD TOGET HER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 2. THE GROUNDS OF APPEALS RAISED BY THE ASSESSES IN BOTH THE APPEALS ARE COMMON (EXCEPT VARIATION IN AMOUNTS). HOWEVER GRO UNDS OF APPEAL RAISED IN ITA NO.106/CHD/2011 ARE REPRODUCED UNDERUNDER: 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDI NG THE ORDER OF THE ASSESSING AUTHORITY PASSED U/S 144 WHE REAS AS PER THE ASSESSEE SHE WAS ABROAD AND THE DEPARTMENT WAS FULLY AWARE OF THIS FACT AND DULY AUTHORIZED REPRESENTATIVE ( P OWER OF ATTORNEY HOLDER) WAS NEVER INFORMED OF FIXATION OF THE CASE. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDI NG THE ACTION OF THE ASSESSING AUTHORITY WHEREIN THE ASSES SING AUTHORITY ADOPTED THE REGISTRY VALUE OF RS. 22 83 5 00/- FOR CALCULATING THE CAPITAL GAINS AGAINST THE ACTUAL SA LE CONSIDERATION OF RS.14 72 500/- DECLARED BY THE ASS ESSEE. 3. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE ACTION OF THE ASSESSING OFFICER WHEREIN THE ASSESS ING AUTHORITY REFUSED TO GIVE THE DUE CREDIT FOR COST O F IMPROVEMENT AMOUNTING TO RS.5 00 000 INCURRED DURIN G THE F.Y. 1997-98 WHEREAS AS PER THE ASSESSEE THE STATUT ORY CLAIM CAN NOT BE DENIED TO THE ASSESSEE ON THE MERE CONJE CTURES AND SURMISES. THAT THE ASSESSEE PRAYS FOR ANY CONSEQUENTIAL RELIE F AND/OR LEGAL CLAIM ARISING OUT OF THIS APPEAL BEFORE THE DISPOSA L OF THE SAME. 3. THE LD. COUNSEL FOR THE ASSESSEES HAS FILED AN APP LICATION FOR CONDONATION OF DELAY CONTENDING THEREIN THAT THE OR DER OF THE LD. CIT(A) LUDHIANA DATED 12.08.2010 WAS RECEIVED BY THE ASS ESSEES ON 19.08.2010 THROUGH THEIR GENERAL POWER OF ATTORNEY HOLDER SH. RAVINDER SINGH KEHRA CA. THERE IS A DELAY OF 104 DAYS IN FILING THE PRES ENT APPEAL. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED IN THE APPLICATI ON THAT THE ASSESSEE AFTER RECEIVING THE IMPUGNED APPELLATE ORDER FROM THE GPA CONSULTED THEIR COUNSEL OVER PHONE AND ARRIVED AT THE CONCLUSION TO FILE THE APPEALS BEFORE THE TRIBUNAL. IT WAS ALSO MENTIONED THAT DURING THE MONTHS OF SEPTEMBER OCTOBER AND NOVEMBER THE AFORESAID RAVINDER SINGH KHERA CA WAS BUSY IN THE TREATMENT OF HIS FATHER-IN-LAW. HENCE THE D ELAY OCCURRED IN FILING THE APPEAL. THE APPLICATION FOR CONDONATION OF DELAY A S WELL AS THE AFFIDAVIT FILED BY THE GPA HOLDER ARE REPRODUCED HEREUNDER: 3 SUB: PRAYER FOR CONDONATION OF DELAY IN APPEAL FOR THE A.Y. 2005-06 THE ASSESSEE IS AGGRIEVED AGAINST THE ORDER OF CIT( A) LUDHIANA DATED 12.08.2010 RECEIVED BY THE ASSESSEE ON 19.08 .2010 THROUGH HIS GPA HOLDER MR. RAVINDER SINGH KHERA (CA) WHEREIN TH E APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED BY THE LD. CIT(A) LUDHIANA. THERE IS DELAY OF 104 DAYS IN FILING THE PRESENT APPEAL. THAT AFTER RECEIVING THE ORDER OF THE AFORESAID GPA HOLDER SENT THE ORDER TO THE ASSESSEE WHO IS RESIDING ABROAD IN CAN ADA HAVING ADDRESS 101 QUAIL CREEK DR GUELPH ONTERIO NICIA3 CANADA. THEREAFTER THE ASSESSEE CONSULTED WITH HIS COUNSEL S OVER PHONE AND EMAILS FROM CANADA AND COME TO THE CONCLUSION TO F ILE THE APPEAL WITH THIS HONBLE BENCH. THAT DURING THE MONTH OF SEPTEMBER OCTOBER & NOVEM BER THE AFORESAID GPA HOLDER WAS BUSY IN THE TREATMENT OF HIS FATHER IN LAW WHO WAS LATER EXPIRED ON 05.11.2010. THEREAFTER TH E AFORESAID GPA HOLDER ON DATED 06.12.2010 MAILED THE APPEAL TO THE ASSESSEE AFTER GETTING THE INSTRUCTIONS FROM THE ASSESSEE RESIDING ABROAD WHICH WAS RECEIVED BACK ON 24.12.2010 UNDER THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE IS PRAYING FOR THE CONDONATION OF DELAY. SD/- RAVINDER SINGH (APPELLANT THROUGH GPA HOLDER) THE AFFIDAVIT SUBMITTED BY THE ASSESSEE IS REPRODUC ED HEREUNDER: AFFIDAVIT I RAVINDER SINGH KHERA S/O SH. GURJIT SINGH R/O 10 6 ADARSH COLONY LUDHIANA SOLEMNLY AFFIRMS AND DECLARE AS U NDER: 1. THAT I HAVE RECEIVED THE ORDER DATED 12.08.2010 PASSED BY THE LD. CIT9A) IN THE CASE OF KIRPAL KAUR D/O NAND SIN GH ON DATED 16.08.2010 IN THE CAPACITY OF GENERAL POWER OF ATTO RNEY HOLDER. 2. THAT I HAVE INFORMED THE ASSESSEE ABOUT THE REC EIPT OF THE SAID ORDER AND SEND THE SAME TO THE ASSESSEE. 3. THAT THE ASSESSEE AFTER DISCUSSIONS WITH ME AND OTHER COUNSELS INSTRUCTED ME IN THE MONTH OF OCTOBER TO PREPARE TH E APPEAL. 4. THAT DURING THE MONTH OF SEPTEMBER OCTOBER & NO VEMBER THE DEPONENT WAS BUSY IN THE TREATMENT OF HIS FATHER IN LAW WHO WAS LATER EXPIRED ON 05.11.2010. 5. THAT ON DATED 06.12.2010 I HAVE MAILED THE APPE AL TO THE ASSESSEE AND RECEIVED BACK ON DATED 24.12.2010 DULY SIGNED ALONG WITH GPA SIGNED IN MY FAVOUR. 6. THAT DUE TO PERSONAL INCAPACITY I WAS NOT ABLE TO COME TO CHANDIGARH FOR FILING OF THE APPEAL AND THE DELAY E RUPTED. SD/- (DEPONENT) 4 THE AFORESAID FACTS OF THE AFFIDAVIT ARE TRUE TO TH E BEST OF MY KNOWLEDGE AND BELIEF AND NOTHING HAS BEEN CONCEALED THEREIN. SD/- (DEPONENT) 3.1. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED BEFORE T HE BENCH THAT EARLIER GPA DID NOT CONTAIN CLAUSE OF FILING THE AP PEAL. THE BENCH SPECIFICALLY BROUGHT TO THE NOTICE OF THE LD. COUNS EL OF THE ASSESSEE THAT SH. RAVINDER SINGH KHERA HAD FILED THE APPEAL ON 28.01. 2008 BEFORE THE LD. CIT(A) AS IS EVIDENT FROM FORM NO.35. THE ORDER UN DER SECTION 144 OF THE ACT WAS PASSED BY THE A.O. IN BOTH THE CASES ON 2 8.12.2007. THE LD. COUNSEL FOR THE ASSESSEE FAILED TO TENDER ANY EXPL ANATION TO SATISFY SUCH QUERY IN THE COURSE OF APPELLATE PROCEEDINGS. 4. THE LD. DR ON THE OTHER HAND VEHEMENTLY CON TENDED THAT THE DELAY DOES NOT FALL UNDER SECTION 253 (5) OF THE AC T AS THERE WAS NO SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WIT HIN THE PRESCRIBED STATUTORY TIME. 5. WE HAVE CAREFULLY PERUSED THE FACT-SITUATION OF THE CASE AND RIVAL SUBMISSIONS INCLUDING THE APPLICATION AND AFFIDAVI T FILED BY THE GPA HOLDER IN THE MATTER. IT IS AN UNDISPUTED FACT THAT SH. RA VINDER SINGH KHERA FILED THE APPEALS IN BOTH THE CASES AGAINST THE ORDER PAS SED UNDER SECTION 144 BY THE A.O. BEFORE THE CIT(A). THUS IT IS EVIDENT THA T SH. RAVINDER SINGH KHERA HAD GENERAL POWER OF ATTORNEY TO FILE THE A PPEAL AND RECEIVE THE ASSESSMENT ORDER ON BEHALF OF THE ASSESSEE. THE BEN CH SPECIFICALLY RAISED THE QUERY TO ADDUCE ANY MATERIAL OR EVIDENCE INDICATING THAT GPA SH. RAVINDER SINGH KHERA DID NOT ATTEND TO ANY PROFESSIONAL DUT Y DURING THE RELEVANT PERIOD INVOLVED IN THE PRESENT CONDONATION OF DELAY . THE LD. COUNSEL FOR THE ASSESSEE FAILED TO GIVE ANY COMMITMENT IN RESPONSE TO SUCH QUERY OR FILE ANY EXPLANATION. MERE MAKING OF AN ASSERTION IN TH E AFFIDAVIT WITHOUT INDEPENDENT CORROBORATION THEREOF IN VIEW OF THE PECULIAR FACTS OF THE CASE 5 CANNOT BE ACCEPTED. IT IS A SETTLED LEGAL PROPOSITI ON THAT IT IS NEITHER A RULE OF PRUDENCE NOR A RULE OF LAW THAT THE STATEMENT MADE IN AN AFFIDAVIT WHICH REMAINS UNCONTROVERTED MUST INVARIABLY BE ACCEPTED AS TRUE AND RELIABLE. IN THE PRESENT CASE THERE ARE CIRCUMSTANCES WHICH SU GGESTS THAT THE STATEMENT IN AFFIDAVIT WITHOUT CORROBORATION THEREOF CANNOT BE ACCEPTED AS TRUE. MERE MENTIONING OF THE CIRCUMSTANCES WITHOUT SATISFYING THE QUERY RAISED BY THE BENCH IN THE MATTER WOULD NOT BY ITSELF BE SUFF ICIENT TO CLOTHE THE STATEMENT IN AFFIDAVIT WITH TRUTHFULNESS AND RELIA BILITY. 6. THE EXISTENCE OF SUFFICIENT CAUSE IN THE CONT EXT OF CONDONATION OF DELAY IS STATUTORY REQUIREMENT AND IN GENERAL SHOUL D RECEIVE LIBERAL CONSTRUCTION WITH A VIEW TO ADVANCING CAUSE OF SU BSTANTIAL JUSTICE WHERE NO NEGLIGENCE OR IN-ACTION NOR ONE OF BONA FIDE IS IMPUTABLE TO THE ASSESSEE. IN THE PRESENT CASE THE ASSESSEE HAS FAILED TO JUS TIFY THE DELAY IN FILING THE IMPUGNED APPEALS. A BARE PERUSAL OF THE APPLICATION FOR CONDONATION OF DELAY AND THE IMPUGNED AFFIDAVIT FILED CLEARLY DEM ONSTRATES THAT IT IS A MAKE BELIEVE VERSION OF THE ASSESSEE THROUGH GPA HOLD ER. THE ASSESSEE FAILED TO CORROBORATE THE ASSERTION MADE IN THE APPLICATION A ND IN THE IMPUGNED AFFIDAVIT BY COGENT AND CREDIBLE EVIDENCE. THE LD. COUNSEL FOR THE ASSESSEE FAILED TO SATISFY THE SPECIFIC QUERY RAISED BY THE BENCH IN THE MATTER. THE CAUSE OF JUSTICE MUST BE ADVANCED PROVIDED THE FAC TS NARRATED IN THE CONDONATION OF APPLICATION AND AFFIDAVIT ARE ALSO B ASED ON THE FOUNDATION OF THE TRUTHFULNESS. THE TERM JUSTICE DEMANDS BONAFI DE AND TRUTHFULNESS IN EVERY CASE. AS DISCUSSED EARLIER THE GPA WAS AVA ILABLE WITH SH. RAVINDER SINGH KHERA CA WHO FILED THE APPEAL BEFORE THE C IT(A) IN THESE CASES. FURTHER NO EVIDENCE WAS FILED TO SUPPORT THE COMP ELLING CIRCUMSTANCES LEADING TO THE DELAY ON THE PART OF THE GPA HOLDER . IT IS FURTHER ADDED THAT GPA HOLDER HAS FILED AN AFFIDAVIT AND SUCH AN AFFID AVIT CAN BE A PIECE OF 6 EVIDENCE WHICH ALONG WITH OTHER MATERIAL ON RECORD HAS TO BE TAKEN INTO CONSIDERATION IN ITS ENTIRETY BEFORE DECIDING THE VERACITY OF THE AFFIDAVIT AND ARRIVING AT A CONSEQUENT FINDING ON THE ISSUE IN QUESTION. NEEDLESS TO SAY THAT THE STATEMENT BY A DEPONENT CAN BE HELD T O BE UNRELIABLE BY A REFERENCE TO OTHER MATERIAL ON RECORD LEADING TO T HE INFERENCE THAT THE STATEMENT IN THE AFFIDAVIT CANNOT BE HELD TO BE TRU E. THE FACTS NARRATED IN THE PRESENT CASE CLEARLY DEMOLISH THE CASE MADE BY THE ASSESSEE FOR CONDONATION OF DELAY. IN THIS CASE ACTION AND CON DUCT OF THE PARTY REMAINS INEXPLICABLE. IT IS A CASE OF COMPLETE NEGLIGENCE A ND INACTION ON THE PART OF THE CONCERNED ASSESSEE. THE FUNDAMENTAL RULE FOR G UIDING EXERCISE OF DISCRETION UNDER THIS SECTION IS TO SEE AS TO WHE THER THE PARTY CLAIMING INDULGENCE HAS BEEN REASONABLY DILIGENT IN FILING THE APPEAL OR PROSECUTING THE APPEAL. HAVING REGARD TO ALL THE RELEVANT FACTS OF THE CASE THERE IS NO EXISTENCE OF GENUINE AND SUFFICIENT CAUSE FOR CONDO NATION OF DELAY. IT IS ALSO A SETTLED LEGAL POSITION OF LAW THAT WHILE CONSIDER ING SUCH CASES OF CONDONATION OF DELAY DISCRETION IS TO BE JUDICIALL Y EXERCISED BASED ON FACTS AND NOT ON SYMPATHY IN CONDONING THE DELAY. IN VIE W OF THE ABOVE FACTUAL AND LEGAL DISCUSSIONS THE STATUTORY REQUIREMENT U NDER SECTION 253(5) REMAINS UNSATISFIED. ACCORDINGLY THE APPLICATIONS FOR CONDONATION OF DELAY IN BOTH THE CASES ARE REJECTED. 7. IN THE RESULT BOTH THE APPEALS FILED BY THE ASS ESSEES STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH NOV. 2011 SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH NOVEMBER 2011 /SKR/ COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANTS. KIRPAL KAUR LUDHIANA (2) SH. BALWA NT SINGH LUDHIANA. 2. THE RESPONDENT: ITO WARD-VII(1) LUDHIANA. 7 3. THE CIT(A) 4. THE CIT 5. THE DR INCOME-TAX DEPARTMENT CHANDIGARH.