Mr. Hemant Kumar S.Jain, Mumbai v. The Income tax Officer, Ward-7(2),, Surat

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND BHAVESH SAINI JUDICIAL MEMBER) ITA.NO.1416/AHD/2007 ASSTT.YEAR : 2001-2002 MR.HEMANT KUMAR S. JAIN 7/3227 KACHHIYA SHERI SAYEDPURA SURAT. VS. ITO WARD-7(2) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.K.PATEL REVENUE BY : SHRI C.K. MISHRA O R D E R PER G.D. AGARWAL VICE-PRESIDENT: THIS IS ASSESSEEES APPEAL AGAINST THE ORDER OF THE CIT(A) DATED 10-10-2006 AR ISING OUT OF ORDER OF THE ASSESSING OFFICER UNDER SECTION 144 OF THE INCOME TAX ACT 1961. 2. THIS APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) BECAUSE THE APPEAL FILED BEFORE HIM WAS LATE BY TWO YEARS. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTED BY THE LEARNED COUNSEL THAT ON THE RECEIPT OF THE ASSESSMENT ORDER THE ASSESSEE HAS DIRECTED HIS COUNSEL TO FIL E THE APPEAL. HOWEVER DUE TO CARELESSNESS OF THE ASSESSEES COUNSEL THE APPEAL COULD NOT BE FILED. THEREAFTER THE ASSESSEE CHANGED THE COUNSEL AND TH E APPEAL WAS FILED BY NEW COUNSEL. THE LEARNED DR ON THE OTHER HAND STATED THAT THE ASSESSEE IS A HABITUAL DEFAULTER. EVEN BEFORE THE AO NOBODY APP EARED. THE APPEAL BEFORE THE CIT(A) WAS LATE BY TWO YEARS AND THE ONLY REASO N GIVEN WAS CARELESSNESS ON THE PART OF THE ASSESSEES COUNSEL. HE HAS STAT ED THAT EVEN IF THE ASSESSEE HAS INSTRUCTED TO FILE THE APPEAL IT WAS HIS DUTY TO R EMIND THE COUNSEL AND INQUIRE WHETHER THE APPEAL HAS BEEN FILED OR NOT. 3. WE HAVE CAREFULLY CONSIDERED SUBMISSIONS OF BOTH THE PARTIES AND PERUSED MATERIAL PLACED BEFORE US. THE CIT(A) HAS RECORDED IN THE IMPUGNED ORDER THE FOLLOWING FINDINGS: ITA.NO.1416/AHD/2007 -2- THIS APPEAL IS FILED AGAINST ORDER U/S.144 OF THE IT ACT DATED 9.3.2004. IT IS SEEN THAT THE APPEAL IS FILED LATE BY MORE TH AN 2 YEARS. A REQUEST FOR CONDONATION OF DELAY IN FILING THE APPEAL WAS MADE BY THE APPELLANT ON THE GROUND THAT THE DELAY WAS ON ACCOUNT OF THE CAR ELESSNESS OF THE AR WHO ADVISED FOR FILING OF AN APPEAL BUT DID NOT DO SO EVEN AFTER THE INSTRUCTIONS GIVEN BY THE APPELLANT IN THIS REGARD. I DO NOT FIND THE REASONS ADVANCED BY THE APPELLANT SUFFICIENT GROUND FOR CONDONING THE EXTRA ORDINARY DELAY OF 2 YEARS IN FILING THE APPEA L AND THEREFORE THE DELAY IN THIS CASE IS NOT CONDONED. APPEAL BEING D EFECTIVE IS HEREBY DISMISSED IN LIMINE. FROM THE ABOVE IT IS EVIDENT THAT THE APPEAL BEFORE THE CIT(A) WAS LATE BY MORE THAN TWO YEARS. THE ONLY EXPLANATION FOR SUCH DELA Y GIVEN BEFORE THE CIT(A) WAS CARELESSNESS ON THE PART OF THE AUTHORIZED REPR ESENTATIVE. IN OUR OPINION IF THE ASSESSEES REPRESENTATIVE WAS CARELESS THE ASS ESSEE WAS ALSO EQUALLY CARELESS. EVEN AFTER DIRECTING THE COUNSEL TO FILE APPEAL IT IS FOR THE ASSESSEE TO FOLLOW UP WITH THE COUNSEL. MERELY BY DIRECTING T HE COUNSEL TO FILE THE APPEAL DUTY OF ASSESSEE IS NOT OVER. THE APPEAL MEMO IS T O BE SIGNED BY THE ASSESSEE AND NOT HIS COUNSEL. MOREOVER THE DELAY IS FOR A P ERIOD OF MORE THAN TWO YEARS. WE ALSO FIND THAT THE ASSESSEE DID NOT APPEAR BEFOR E THE AO DESPITE SEVERAL OPPORTUNITIES. THEREFORE CONSIDERING THE TOTALIT Y OF THE ABOVE FACTS AND ARGUMENTS OF BOTH THE SIDES WE FIND NO JUSTIFICATI ON TO INTERFERE WITH THE ORDER OF THE CIT(A). WE ACCORDINGLY UPHOLD THE SAME AND DISMISS THE ASSESSEES APPEAL. 4. IN THE RESULT THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 13 TH APRIL 2010. SD/- SD/- (BHAVESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 13-04-2010 ITA.NO.1416/AHD/2007 -3- VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER AR ITAT AHMEDABAD