M/s. EVP Housing Chennai Pvt. Ltd., CHENNAI v. ACIT, CHENNAI

ITA 2302/CHNY/2013 | 2006-2007
Pronouncement Date: 17-04-2014 | Result: Dismissed

Appeal Details

RSA Number 230221714 RSA 2013
Assessee PAN ACQPR0638B
Bench Chennai
Appeal Number ITA 2302/CHNY/2013
Duration Of Justice 3 month(s) 17 day(s)
Appellant M/s. EVP Housing Chennai Pvt. Ltd., CHENNAI
Respondent ACIT, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 17-04-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 17-04-2014
Assessment Year 2006-2007
Appeal Filed On 30-12-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH CHENNAI . . . ! BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER & SHRI S.S. GODARA JUDICIAL MEMBER. ./ I.T.A. NOS.2293 & 2294/MDS/2013 ( / ASSESSMENT YEARS : 2006 -07 &2007-08) MRS. P.S. RAJESWARI NO.1015. Z BLOCK 6 TH AVENUE ANNA NAGAR CHENNAI 600 040. [PAN:ACQPR0638B] ( '# /APPELLANT) VS THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE IV(2) CHENNAI 600 034. ( $%'# /RESPONDENT) ./ I.T.A. NOS.2295 TO 2297/MDS/2013 ( / ASSESSMENT YEARS : 2004-05 2006-07 &2007-08) MR. E.V. PERUMALSAMY REDDY NO.1015. Z BLOCK 6 TH AVENUE ANNA NAGAR CHENNAI 600 040. [PAN:AGMPP5434D] ( '# /APPELLANT) VS THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE IV(2) CHENNAI 600 034. ( $%'# /RESPONDENT) I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 2 -: ./ I.T.A. NOS.2298 TO 2301/MDS/2013 ( / ASSESSMENT YEARS:2005-06 2006-07 2007-08 &2008-09) M/S. EVP ESTATES AND PROPERTIES DEVELOPMENT LTD NO.1015. Z BLOCK 6 TH AVENUE ANNA NAGAR CHENNAI 600 040. [PAN:AABCE1517C] ( '# /APPELLANT) VS THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE IV(2) CHENNAI 600 034. ( $%'# /RESPONDENT) ./ I.T.A. NO.2302 & 2303/MDS/2013 ( / ASSESSMENT YEARS : 2006-07 AND 2008-09) M/S. EVP HOUSING CHENNAI P. LTD NO.1015. Z BLOCK 6 TH AVENUE ANNA NAGAR CHENNAI 600 040. [PAN:AABCE4237H] ( '# /APPELLANT) VS THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE IV(2) CHENNAI 600 034. ( $%'# /RESPONDENT) / APPELLANT BY : SHRI. M. VIJAYAKUMAR ADVOCATE / RESPONDENT BY : SHRI. S. DASGUPTA IRS JCIT. /DATE OF HEARING : 10.4.2014. ! /DATE OF PRONOUNCEMENT : 17.4.2014. & / O R D E R PER BENCH:- THIS BATCH OF ELEVEN APPEALS AT THE BEHEST OF AFOR ESAID FOUR ASSESSEES; FOR VARIOUS ASSESSMENT YEARS RANGING BET WEEN 2004-05 TO 2008-09 HAS ARISEN FROM DIFFERENT ORDERS OF THE CO MMISSIONER OF I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 3 -: INCOME TAX (APPEALS)-I CHENNAI DATED 27.10.2010 EX CEPT IN ITA NO.2295/MDS/2013 WHEREIN IT IS DATED 20.12.2010 DI SMISSING ALL CASES IN LIMINE FOR WANT OF PAYMENT OF ADMITTED TAX IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME ACT 1961 (IN SHORT THE ACT). 2. AT THE OUTSET BOTH PARTIES POINT OUT THAT THESE A PPEALS SUFFER FROM DELAY OF ATLEAST 1100 DAYS IN FILING AND IDENT ICAL CONDONATION PETITIONS HAVE BEEN PREFERRED BY ALL FOUR ASSESSEES . THUS WE TAKE UP ITA NO.2293/MDS/2013 AS THE LEAD CASE. 3. IN THIS CASE IT IS TO BE SEEN THAT THE APPEAL IS T IME BARRED BY 1100 DAYS DELAY IN FILING. THE ASSESSEE HAS FILED A CONDONATION PETITION DATED 27.12.2013 AS UNDER:- 1. I AM THE APPELLANT HEREIN AND AS SUCH I AM WEL L ACQUAINTED WITH THE FACTS OF THE CASE. 2 . I HUMBLY SUBMIT THAT I AM THE DIRECTOR OF THE COM PANY M/ S. EVP. E ST A TES AND PROPERTY DEVELOPMENT LTD. AND EVP HOUSING C HENNAI PVT. LTD. C HENNAI - 600 040. MY HUSBAND MR. E.V. PERUMALSAMY REDDY IS THE MANAGING DI R ECTOR OF THE ABOVE COMPANIES AND MY SON MR. E. V. P. SANTHOSA REDDY IS THE DIRECTOR OF THE ABOVE SAID OMPANIES. ON 01-01-2008 THE INCOME TAX DEPARTMENT C ONDUCTED SEARCH U/ S.132 AND SUBSEQUENTLY SERVED A NOTI CE UJ S. 153A OF THE IT ACT. IN FACT I WAS PLANNING FOR FILING THE RETUR N OF T HE INCOME IN THE MONTH OF JANUARY 2008 FOR ALL THE ASSESSES. ACC ORDINGLY I H A V E FILED THE RETURN OF INCOME AND THE SAME HAS BEEN AC CEPTED BY THE A UTHORITIES CONCERNED . 3 . I HUMBLY SUBMIT THAT THE INCOME TAX DEPARTMENT HAS SE IZED ALL THE ORIGINAL DOCUMENTS ON 10-01-2008. MY RETURN OF INCOME FOR THE I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 4 -: ASSESSMENT Y E A R 2006-2007 AND 2007-2008 WAS DULY ACCEPTED AND FILED WITHIN THE DUE DA T E AS PER THE PROVISIONS OF THE INCOME TAX ACT. THEREFORE PENALTY LEVIED BY THE ASSESSING OFFI CER U] S. 271 (1 (C) OF THE INCOME TAX ACT 1961 IS ERRONEOUS. TH E REFORE I HAVE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TA X (APPEALS-I). THE SAID APPEAL WAS DISMISSED IN LIMINE ON 27-10-2010 O N T H E SHORT GROUND FOR NON -PAYMENT OF TAX AMOUNT. 4. I SUBMIT THAT THE ENTIRE ORIGINAL DOCUMENTS WERE SEIZED. THEREFORE I WA S NO T IN A POSITION TO MOBILISE THE FUNDS FOR THE PAYMENT OF THE TAX AM OUNT. 5. I SUBMIT THAT MY HUSBAND UNDERWENT BYPASS SURGERY A ND WAS UNDER TR E ATMENT FOR DIABETES MELLITUS ASSOCIATED WITH HYPERTENSION FOR THE PE R IOD F R OM NOVEMBER 2010 TO NOVEMBER 2013. HE WAS STRICTLY ADVISED BY THE DO C TORS THAT ANY LITTLE STRAIN MAY CAUSE ANXIETY TO HIS LIFE ITSELF. THEREF ORE WE DID NOT INFORMED TO HIM ABOUT THE LEGAL PROCEEDINGS AND WE W ER E NOT IN A POSITION TO CONSULT OUR LAWYER. 6. IN THE CIRCUMSTANCES THE GOVERNMENT OF TAMILNADU HAD DEPOSITED THE AWARD AMOUNT A SUM OF RS.16 79 59 743 /- ON OCTOBER 2012 ON THE FILE OF LEARNED SUB-COURT KANCHEEPURAM IN THE LAOP NO.2 OF 2011 FOR THE LAND ACQUIRED FROM THE EVP EST ATES AND PROPERTIES DEVELOPMENT LTD CHENNAI 600 040. HOWEV ER THE TAX RECOVERY OFFICER HAS ATTACHED THE SAID AWARD AM O UNT UNDER THE PROVISIONS OF SECTION 226(4) AND RULE 31(11 SCHEDUL E) OF THE ACT 1961 TOWARDS THE TAX LIABILITIES OF:- (I) E.V.P. ESTATES AND PROPERTIES DEVELOPMENT LTD. (THE APPELLANT HEREIN) PAN : AABCE1517C (II)E.V.P. HOUSING CHENNAI PVT.LTD. PAN :ACQPR0638B (III) MR. E.V.PERUMALSAMY REDDY PAN: AGMPP5434D (IV) MRS. P . S. RAJESWARI PAN:ACQPR0638B AND (V)MR. E.V.P. SANTHOSA REDDY PAN:AGYPR3116N W E FILED A WRIT PETITION IN W.P.NO.35073 OF 2013 BEFOR E THE HON'BLE HIGH C OURT OF MADRAS FOR THE FOLLOWING RELIEF:- ' TO ' ISSUE A WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO LIFT THE ATTACHMENT PROCEEDINGS INIT IATED I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 5 -: BY THE 3 RD RESPONDENT U/S.226(4) IN FORM NO . LT . C . P.10 UNDER RULE 31 OF THE SECOND S CHEDULE OF INCOME TAX. ACT 1961 IN RESPECT OF THE DEPOSIT AMOUNT OF RS . 16 79 59 743/ -(RUPEES SIXTEEN CRORES SEVENTY NINE LAKHS F IFTY NINE THOUSAND SEVEN HUNDRED AND FORTY THREE ONLY) MADE BY THE SPECIAL TAHSILDAR SIPCOT SRIPERUMPUDUR IN FAVOUR OF THEPETITIONER IN L . A . O . P . NO . 2 OF 2011 ON THE FILE OF SUB - COURT KANCHEEPURAM TO ENABLE THE PETITIONER TO PAY THE RETURNED TAX. AMOUNT PAYABLE TOTALLY A SUM OF RS.10 06 41 779/-(RUPEES TEN C RORES SIX LAKHS FORTY ONE THOUSAND SEVEN HUNDRED AND SEVENTY NINE ONLY)FOR THE ASSESSMENT YEARS 2005 - 2006 TO 2008 - 2 009 OF THE ASSESSEES VIZ. (1) THE PETITIONER (2) EVP HOUSING CHENNAI PVT . LTD . (3) E.V. PERUMALSAMY REDDY (4) MRS. P.S. RAJESWARI AND (5) E . V:P . SANTHOSA REDDY TO THE RESPONDENTS' 7 . I SUBMIT THAT IN VIEW OF THE PROCEEDINGS PASSED BY THE RECOVERY OF F ICER IN TRC.NO.102/CR-IV(2)/10-11 DATED 06-11- 2013 WE HAVE FILED A F F IDAVIT BEFORE THE RECOVER Y OFFICER GIVING CONSENT TO ADJUST THE C OMP E NS A TION AW A RDED FOR LAND ACQUISITION LYING IN THE HON'BLE SUB-COURT KA NCHEEPURAM AG A INST THE ARREARS OF TAX FOR THE APPELLANT AND OTHER ASSESS E E VIZ. E.V . P. HOUSING CHENNAI PVT . LTD. PAN:ACQPR0638B MR. E .V.PERUMALSAMY REDDY PAN : AGMPP5434D MRS. P.S. RAJESWARI PAN NO.ACQPR0638B AND MR. E.V.P. SANTHOS A REDDY PAN:AGYPR3116N A SUM OF RS.10 06 41 779/- HENCE THE APPELLANT IS ENTITLED TO CONTEST THIS APPEAL ON MERIT. NOW THE TAX RECOVERY OFFICER CONDUCTED SURVEY U] S.133A(3)(IA) OF IT ACT. HENCE I AM ADVISED TO FILE THIS APPEAL. NOW THERE IS A DELAY OF 1127 DAYS IN FILI N G THIS APPEAL . THE DELAY IS NOT WILFUL OR WANTON. IT IS ONL Y DUE TO THE REASONS STATED ABOVE. HENCE THIS APPLICATION TO CONDONE TH E D E LAY OF 1127 DAYS IN FILING THIS APPEAL. IF THE SAID DELAY IS CONDONED N O PREJUDICE WOULD BE CAUSED TO THE RESPONDENT AND ON THE OTHER HAND IF THE DE LA Y IS NOT CONDONED I WOULD BE PUT TO I R REPARABLE LOSS AND GRAVE HARDSHIP. I H A VE PRI MA FACIE CASE AND BALANCE OF CONVENIENCE IS IN M Y FAVOUR. UNDER THE SA ID C I R CUMSTANCES THE DELAY OF 1127 DAYS IN FILING THE ABOVE APPEAL A G A INST THE ORDER DATED 20-12-2010 PASSED BY THE LEARNED COMMIS SIONER OF INC OM E T A X(APPEALS-I) IN I . T . A.NO . 29 J /09-10 MAY BE CONDONED. IT IS THER E FORE PR AY ED THAT THIS HON'BLE COURT MA Y BE PLEASED TO CON DONE THE DELA Y OF 1127 DAYS IN FILING THE APPEAL AGAINST THE ORDER DATED 2 7 - 10-2010 PASSED BY THE RESPONDENT I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 6 -: I . E . LEARNED COMMISSIONER OF INCOME TAX (APPE A LS-I) IN I . T.A . NO . 29 1 /2009-10 AND THUS RENDER JUSTICE . IN THIS BACKDROP THE ASSESSEE SUBMITS THAT SINCE DELAY OF 1100 DAYS STANDS EXPLAINED AND THE ISSUE OF PAYMENT OF ADMITT ED TAX HAS BEEN ADJUDICATED IN WRIT PROCEEDINGS BEFORE THE HONBLE JURISDICTIONAL HIGH COURT THE MATTER BE RESTORED BACK TO THE CIT(A) FO R DECISION ON MERITS. 4. THE REVENUE STRONGLY ARGUES THAT THE APPEAL IS HOPE LESSLY TIME BARRED AND CONDONATION PETITION DOES NOT MERIT ACCE PTANCE. 5. WE HAVE HEARD BOTH PARTIES AND GONE THROUGH THE CAS E FILE. WE FIND THAT WHILE FRAMING ASSESSMENT IN ORDER DATED 3 1.12.2009 IN FURTHERANCE OF A SEARCH CONDUCTED ON 10.01.2008 THE ASSESSING OFFICER HAD MADE ADDITION OF M25 LAKHS AS UNACCOUN TED INVESTMENTS. THE ASSESSEE FILED APPEAL. THE CIT(A) HAS DISMISSE D HER APPEAL IN LIMINE ON THE GROUND OF NON PAYMENT OF ADMITTED TAX . BEFORE US THE ASSESSEE HAS FILED THE ABOVESAID CONDONATION. A PE RUSAL THEREOF MAKES IT CLEAR THAT THIS IS NOT THE CASE THAT SHE H ERSELF OR HER HUSBAND SHRI. E.V. PERUMALSAMY REDDY WAS NOT AWARE OF THE C IT(A) ORDER UNDER CHALLENGE. SO IT IS NOT A CASE OF LACK OF K NOWLEDGE ABOUT THE CIT(A) S ORDER. THE ASSESSEES AVERMENTS IN THE C ONDONOTION PETITION I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 7 -: READ THAT HER HUSBAND HAD UNDERGONE BYPASS SURGERY AND TREATMENT OF DIABETES MELLITUS ASSOCIATED WITH HYPERTENSION F ROM NOVEMBER 2010 TO NOVEMBER 2013. SHE SUPPORTS THIS BY WAY OF A MEDICAL CERTIFICATE DATED 16.11.2013 ISSUED BY MOHAN NURSIN G HOME CHENNAI. HOWEVER THIS ONLY APPEARS TO BE AN UNTENABLE EXPLA NATION. HER CONTENTION ABOUT SHRI.REDDYS SUDDEN ILLNESS NOVEMB ER 2010 TO NOVEMBER 2013 AND SUDDEN REGAINING OF HEALTH IS NO T SUPPORTED BY ANY EVIDENCE THAT SHE HERSELF COULD NOT HAVE PURSUE D LEGAL REMEDIES IN THE TREATMENT PERIOD. IN THIS REGARD THE NURSIN G HOMES CERTIFICATE ONLY APPEARS TO BE AN AFTER-THOUGHT EXERCISE IN ABS ENCE OF OTHER DETAILS. MOREOVER IN TRIBUNALS PROCEEDINGS THE ASSESSEES/HER HUSBANDS PERSONAL APPEARANCE IS NOT REQUIRED. COU PLED WITH THIS SHE FAILS TO EXPLAIN EACH AND EVERY DAYS DELAY FROM 16 TH NOVEMBER 2013 TILL THE DATE OF FILING THE APPEAL I.E. 30.12.2013 AS SHE IS SUPPOSED TO ACT WITH DUE DILIGENCE. THEREFORE WE HOLD THAT THE ASSESSEE HAS FAILED TO SATISFACTORILY EXPLAIN 1100 DAYS DELAY IN FILING OF THIS APPEAL. IT IS A TRITE PREPOSITION OF LAW THAT IN DELAY MATTERS LIB ERAL AND LENIENT APPROACH TO BE ADOPTED. BUT IN THIS CASE THERE IS NO PLAUSIBLE EXPLANATION MUCH LESS A SATISFACTORY ONE. IN THESE CIRCUMSTANCES DELAY OF 1100 DAYS DOES NOT DESERVE TO BE CONDONED ON MERE ASKING. I.T.A.NOS. 2293 TO 2303/MDS/2013. :- 8 -: THEREFORE THIS ASSESSEES APPEAL ITA 2293/MDS/201 3 IS DISMISSED AS SUFFERING FROM DELAY AND LACHES. 6. SAME ORDER TO FOLLOW IN ITAS NOS.2294 TO 2303/MDS/2 013. 7. TO SUM UP ALL APPEALS ARE DISMISSED AS TIME BARRED . ORDER PRONOUNCED ON THURSDAY THE 17 TH OF APRIL 2014 AT CHENNAI. SD/- SD/- ( . ) ( . . ) (A.MOHAN ALANKAMONY) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER '# /CHENNAI $% /DATED:17.04.2014. KV %& '( )( /COPY TO: 1. * APPELLANT 2. / RESPONDENT 3. + ( )/CIT(A) 4. + /CIT 5. ( - . /DR 6. -/ 0 /GF.