M/s. Sachidanand Pulse Mills, Dist.Anand v. The Income tax Officer,Ward-4,, Anand

ITA 1113/AHD/2008 | 2000-2001
Pronouncement Date: 23-07-2010 | Result: Dismissed

Appeal Details

RSA Number 111320514 RSA 2008
Assessee PAN AAGFS6276F
Bench Ahmedabad
Appeal Number ITA 1113/AHD/2008
Duration Of Justice 2 year(s) 3 month(s) 26 day(s)
Appellant M/s. Sachidanand Pulse Mills, Dist.Anand
Respondent The Income tax Officer,Ward-4,, Anand
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-07-2010
Date Of Final Hearing 15-07-2010
Next Hearing Date 15-07-2010
Assessment Year 2000-2001
Appeal Filed On 28-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND N. S. SAINI AM) ITA NO.1113/AHD/2008 A. Y.: 2001-02 M/S. SACHIDANAND PULSE MILL BHAVIN MAANBHAI PATEL OPP. HIGH SCHOOL VALSAD TAL. & DIST. ANAND VS THE INCOME TAX OFFICER WARD-4 S. P. COMPLEX MAYFAIR ROAD ANAND 388 001 TAL. & DIST. ANAND PAN NO. AAGFS 6276 F (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI D. S. CHAUDHRY DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-IV BARODA DATED 13 -08-2007 FOR ASSESSMENT YEAR 2000-01 ON THE FOLLOWING GROUNDS: 1. THE LND C. I. T. (A)-IV BARODA ERRED ON FACTS IN CONTENDING THAT APPELLANT HAD FAILED TO GIVE ANY KI ND OF EVIDENCE TO SUBSTANTIATE ITS CLAIM THAT THE BOOKS O F ACCOUNTS WERE LYING IN THE BANK CUSTODY AND THEREFO RE CONFIRMING THE ADDITION OF RS.65 10 740/- MADE BY L ND A.O. 2. REASONS FOR G. P. REDUCTION WERE NOT EXPLAINED I N DETAIL BEFORE HONBLE C.I.T. (A) BECAUSE THE BOOKS OF ACCO UNTS AND OTHER RECORDS WERE LYING IN THE PREMISES WHICH WAS SEALED BY BANK. THUS LND C. I. T.(A) HAD ERRED ON FACTS AND IN LAW IN CONTENDING THAT VARIOUS OPPORTUNITIES WERE GIVEN TO YOUR APPELLANT TO EXPLAIN THE REDUCTI ON IN G. P. RATE THEREFORE CONFIRMING THE ADDITION OF RS.6 64 318/-. ITA NO. 1113/AHD/2008 M/S. SACHIDANAND PULSE MILL VS ITO W-4 ANAND 2 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME ON 31-10-2000 DECLARING TOTAL LOSS OF RS.5 6 9 830/-. THE AO ISSUED SEVERAL SHOW CAUSE NOTICES TO THE ASSESSEE A ND OTHER STATUTORY NOTICES BUT THE SAME WERE NOT COMPLIED WITH. THE AO IN THE ABSENCE OF ANY COOPERATION FROM THE SIDE OF THE ASSESSEE PASSE D THE EX-PARTE ASSESSMENT ORDER U/S 144 OF THE IT ACT MAKING THE A BOVE ADDITION ON WHICH GROUNDS OF APPEAL HAVE BEEN RAISED IN THIS AP PEAL. THE ADDITIONS WERE CHALLENGED BEFORE THE LEARNED CIT(A). ON GROUN D NO.1 THE LEARNED CIT(A) NOTED THAT THIS ISSUE HAS BEEN CONSIDERED BY HIS PREDECESSOR IN ASSESSMENT YEAR 2001-02 AND THIS ISSUE HAS BEEN DEC IDED AGAINST THE ASSESSEE AND IN THE CURRENT YEAR THE ASSESSEE IS UN ABLE TO FILE THE DETAILS BECAUSE IT WAS CLAIMED THAT BOOKS OF ACCOUNTS WERE IN THE CUSTODY OF THE BANK AND THE ASSESSEE WAS NOT ABLE TO PRODUCE THE S AME. DESPITE GIVING OPPORTUNITY TO THE ASSESSEE TO SUBMIT ANY EVIDENCE THE ASSESSEE FAILED TO DO SO AND ACCORDINGLY ADDITION OF RS.65 10 740/- WA S CONFIRMED. SIMILARLY ON GROUND NO.2 ABOVE REGARDING GROSS PROF IT ADDITION THE ASSESSEE DID NOT SUBMIT ANY DETAILS BEFORE THE LEAR NED CIT(A) DESPITE GIVING VARIOUS OPPORTUNITIES. THEREFORE THE LEARNE D CIT(A) CONFIRMED THE ADDITION OF RS.6 64 318/-. 3. IN VIEW OF THE ABOVE BACKGROUND THE ASSESSEE PR EFERRED APPEAL BEFORE THE TRIBUNAL AND THE APPEAL IS FILED IN THE OFFICE OF THE TRIBUNAL ON 28-03-2008. IN COLUMN NO.9 OF FORM NO.36 IT IS STA TED THAT THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IS 01-0 9-2007. THE OFFICE THEREFORE NOTED THAT APPEAL IS TIME BARRED BY 149 DAYS. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY IN WHICH IT WAS EXPLAINED THAT THE IMPUGNED ORDER WAS SERVED UPON THE ASSESSEE ON 01-09-2007 AND THE APPEAL SHOULD HAVE BEEN FILED IN THE OFFICE OF THE TRIBUNAL ON OR BEFORE 30-10-2007 WITHIN THE PERIOD OF 60 DAYS. HOW EVER IT WAS NOT FILED ON THE REASONS THAT THE BUSINESS OF THE ASSESSEE FI RM HAS BEEN DISCONTINUED SINCE 4 YEARS AND ALL THE PARTNERS HAD BEEN ENGAGED IN ITA NO. 1113/AHD/2008 M/S. SACHIDANAND PULSE MILL VS ITO W-4 ANAND 3 PRIVATE SERVICE. ONLY BHAVIN PATEL WHO WAS A PERSON RUNNING FLOOR MILL AT VASAD HAS BEEN LOOKING AFTER THE AFFAIRS OF THE ASS ESSEE FIRM AND FOR THE LAST SIX MONTHS HE HAS BEEN FACING PERPETUAL MEDICA L PROBLEMS AND HAD TO UNDERGO CONTINUOUS MEDICAL TREATMENT. MR. BHAVIN PATEL HAD TO ARRANGE THE FUNDS FOR APPEAL FEES TO FILE THE APPEA L BECAUSE THERE WAS NO FUND AVAILABLE WITH THE ASSESSEE FIRM. IT IS ALSO E XPLAINED THAT THE ASSESSEE AND ITS PARTNERS HAVE DEFAULTED IN REPAYME NT OF LOAN TO THE BANK DUE TO HEAVY LOSS. THEREFORE IT IS DIFFICULT TO RAISE REQUISITE FUNDS TO FILE THE APPEAL. THE AFFIDAVIT OF BHAVIN PATEL IN S UPPORT OF THE ABOVE IS FILED ON RECORD. IT IS THEREFORE PRAYED THAT DELA Y IN FILING THE APPEAL MAY BE CONDONED. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING OF THE APPEAL DESPITE SERVICE. REQUEST IS RECEIVED FOR ADJOURNMENT WHICH IS REJECTED CONSIDERING THE HISTORY OF THE ASSESSEE. 5. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MAT ERIAL ON RECORD. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS NO R EASONABLE AND SUFFICIENT CAUSE IN NOT PRESENTING THE APPEAL WITHI N THE PERIOD OF LIMITATION. THE LEARNED DR THEREFORE SUBMITTED TH AT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED BEING TIME BARRED. 6. ON CONSIDERATION OF THE ABOVE FACTS MATERIAL ON RECORD AND CONSIDERING THE SUBMISSION OF THE LEARNED DR WE AR E OF THE VIEW THAT THE ASSESSEE HAS FAILED TO SATISFY THAT THERE WAS SUFFI CIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATI ON. SECTION 253 (5) OF THE IT ACT PROVIDES THAT APPELLATE TRIBUNAL MAY ADM IT AN APPEAL AFTER EXPIRY OF THE RELEVANT PERIOD IF IT IS SATISFIED TH AT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. SUF FICIENT CAUSE WOULD MEAN A CAUSE WHICH IS BEYOND THE CONTROL OF THE ASS ESSEE. SUFFICIENT CAUSE MEANS WHICH PREVENTS A REASONABLE MAN OF ORDI NARY PRUDENCE ACTING UNDER NORMAL CIRCUMSTANCES WITHOUT NEGLIGENC E OR INACTION OR ITA NO. 1113/AHD/2008 M/S. SACHIDANAND PULSE MILL VS ITO W-4 ANAND 4 WANT OF BONA FIDE. THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY TRIED TO EXPLAIN THAT ONE OF THE PARTNERS SHR I BHAVIN PATEL WAS FACING PERPETUAL MEDICAL PROBLEM AND HAD TO UNDERGO MEDICAL TREATMENT. HOWEVER NO EVIDENCE OF ANY MEDICAL TREATMENT UNDER GONE BY THE PARTNER HAS BEEN FILED ON RECORD. IN THE ABSENCE OF ANY EVI DENCE OR MATERIAL ON RECORD THE CONTENTION OF THE ASSESSEE IS NOT PROVE D. ANOTHER REASON IS GIVEN THAT SHRI BHAVIN PATEL HAD TO ARRANGE FUNDS F OR APPEAL FEES BECAUSE FUNDS WERE NOT AVAILABLE WITH THE ASSESSEE FIRM. HOWEVER THE RECORD SHOWS THAT TRIBUNAL FEES FOR FILING OF THE A PPEAL IS DEPOSITED BY THE ASSESSEE ON 06-12-2007 (COPY OF THE CHALLAN IS AVAI LABLE ON RECORD). HOWEVER IT IS NOT MADE CLEAR AS TO WHAT FOR THE AS SESSEE WAS AWAITING FOR FILING OF THE APPEAL TILL 28-03-2008. THE APPEAL PA PERS ALSO SHOW THAT VERIFICATION OF THE APPEAL IS SIGNED BY THE PARTNER ON 15-12-2007. THERE IS NO EXPLANATION FROM THE SIDE OF THE ASSESSEE AS TO WHY THE ASSESSEE DID NOT FILE THE APPEAL FROM DECEMBER 2007 TO THE E ND OF MARCH 2008. IT WOULD THEREFORE SHOW THAT THE REASONS EXPLAINED B Y THE ASSESSEE FOR CONDONATION OF DELAY ARE VAGUE INCORRECT AND WITHO UT ANY BASIS AND WITHOUT ANY SUPPORTING EVIDENCE ON RECORD. THUS TH E ASSESSEE DID NOT ACT UNDER NORMAL CIRCUMSTANCES AND HAS NOT TAKEN AN Y ACTION IN THE MATTER BONA FIDE. THE ASSESSEE ACTED NEGLIGENTLY IN NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION. THUS THE ASSESSEE HAS FAILED TO SATISFY THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATION. IT WOULD BE APPROPRIATE TO RE FER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FI LING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. VS. ITO (1979) 118 ITR 873 THE CALCUTTA HIGH COURT HELD THAT A TRIBUNAL CAN CONDON E THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSIO N OF THE APPEAL. IN THE CASE OF VEDABHAI ALIAS VIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL (2002) 253 ITR 798 (SC) WHERE IT WAS HELD THAT WHILE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITA TION ACT 1963 TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING TH E APPEAL WITHIN THE ITA NO. 1113/AHD/2008 M/S. SACHIDANAND PULSE MILL VS ITO W-4 ANAND 5 PERIOD PRESCRIBED COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE D ELAY IS INORDINATE AND A CASE WHERE DELAY IS OF A FEW DAYS. THE COURT OBSERVED THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTH ER SIDE WILL BE RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN T HE 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 149 DAYS. BESIDES THERE IS ABSOLUTELY NO VALID EXPLANATION/R EASON FOR THE DELAY. IN THE CASE OF CIT V. RAM MOHAN KABRA (2002) 257 ITR 7 73 THE HONBLE PUNJAB & HARYANA HIGH COURT HAS HELD AND OBSERVED T HAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND P ROVIDES FOR POWER TO CONDONE THE DELAY AS WELL SUCH DELAY CAN ONLY BE C ONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELAT ING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CASE DELAY FOR FILING THE APP EAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF ASSTT. CIT V. TAGGAS INDUSTRIES DEVELOPMENT LTD. (2002) 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. 7. CONSIDERING THE ABOVE DISCUSSIONS AND HISTORY OF THE ASSESSEE IN NOT COOPERATING WITH THE AUTHORITIES BELOW AND RELY ING UPON THE ABOVE JUDGMENTS WE HOLD THAT THE ASSESSEE FAILED TO EXPL AIN THE DELAY IN FILING THE APPEAL WAS DUE TO SUFFICIENT CAUSE. WE THEREFO RE TREAT THE APPEAL OF THE ASSESSEE TO BE TIME BARRED AND DISMISS THE SAME ACCORDINGLY. ITA NO. 1113/AHD/2008 M/S. SACHIDANAND PULSE MILL VS ITO W-4 ANAND 6 8. AS A RESULT APPEAL OF THE ASSESSEE IS DISMISSED BEING TIME BARRED. ORDER PRONOUNCED ON 23-07-2010. SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 23-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD