M/s Nyshidha Constuctions Pvt Ltd., Visakhapatnam v. The DCIT, Circle-1., Visakhapatnam

ITA 284/VIZ/2006 | 1998-1999
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 28425314 RSA 2006
Assessee PAN AAACN6002G
Bench Visakhapatnam
Appeal Number ITA 284/VIZ/2006
Duration Of Justice 3 year(s) 7 month(s) 16 day(s)
Appellant M/s Nyshidha Constuctions Pvt Ltd., Visakhapatnam
Respondent The DCIT, Circle-1., Visakhapatnam
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 22-01-2010
Assessment Year 1998-1999
Appeal Filed On 05-06-2006
Judgment Text
PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.284/VIZAG/2006 ASSESSMENT YEAR: 1998-99 NYSHIDHA CONSTRUCTIONS PVT LTD VISAKHAPATNANAM VS. DCIT CIRCLE-1 VISAKHAPATNAM (APPELLANT) (RESPONDENT) PAN NO. AAACN 6002 G APPELLANT BY: SHRI C.V.S. MURTHY CA RESPONDENT BY: SHRI G.S.S. GOPINATH DR ORDER PER SHRI B R BASKARAN ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.03.2006 PASSED BY THE LD CIT (A)-I VISAKHAPATNAM AND IT RELATES TO THE ASSESSMENT YEAR 1998-99. 2. THE APPEAL FILED BY THE ASSESSEE BELATEDLY ON 10 .05.2005 AGAINST THE ASSESSMENT ORDER DATED 22-06-2001 HAVING BEEN DISM ISSED BY THE LD CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE FACTS RELATING TO THE ISSUE ARE SET OUT IN B RIEF. THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 1998-99 WAS PASSED U/ S 143 (3) ON 21.03.2001. THE ASSESSEE ORIGINALLY PREFERRED APPEAL BEFORE LD CIT(A) AGAINST THAT ORDER WITHIN THE PRESCRIBED TIME LIMIT ON 23.07.2001. WH ILE THE APPEAL WAS PENDING BEFORE LD CIT(A) THE LD CIT BY INVOKING HIS POWE R U/S 263 OF THE ACT PAGE 2 OF 4 PASSED AN ORDER ON 24.03.2003 DIRECTING THE ASSESSI NG OFFICER TO REDO THE ASSESSMENT IN RESPECT OF CERTAIN TRANSACTIONS. SUBS EQUENT TO THE SAID ORDER THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED A LETTER DATED 27.03.2003 WITH THE LD CIT (A)-I REQUESTING FOR WITHDRAWAL OF THE APPEAL. ACCORDINGLY THE APPEAL FILED ON 23.7.2001 WAS DISMISSED BY LD CIT(A ). 4. THE ASSESSEE AGAIN FILED ANOTHER APPEAL FOR THE SECOND TIME BEFORE LD CIT (A) ON 10.05.2005 AGAINST THE ORIGINAL ASSESSME NT ORDER PASSED ON 21.03.2001 WITH A PETITION FOR CONDONATION OF DELAY . IT WAS MENTIONED IN THE PETITION THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS WITHDRAWN THE APPEAL FILED EARLIER ON THE MISTAKEN IMPRESSION AND BONAFIDE BELIEF THAT THE ENTIRE ASSESSMENT WAS SET ASIDE U/S 263 OF THE ACT WHEREAS IN FACT THE ASSESSMENT ORDER WAS SET ASIDE FOR THE LIMITED PURP OSE OF VERIFICATION OF SEVEN TRANSACTIONS MENTIONED IN THE SAID ORDER. HOWEVER THE LD CIT (A) REFUSED TO CONDONE THE DELAY AND ACCORDINGLY DISMISSED THE APP EAL OF THE ASSESSEE. AGGRIEVED AGAINST THE ORDER OF THE LD CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE RECORD. THE LD CIT (A) HAS DISMISSED THE APPEAL AFTER EXAMINING THE CO NDUCT OF THE ASSESSEE AND POINTING OUT THE LACUNA ON THE PART OF THE ASSESSEE . THE OBSERVATIONS OF THE LD CIT (A) ARE EXTRACTED BELOW: 5.2. IT IS NOT A CASE WHERE THERE IS A DELAY IN FI LING ORIGINAL APPEAL. ORIGINALLY APPEAL WAS FILED IN TIME AGAINS T THE ASSESSMENT ORDER DATED 21-03-2001. THE SAID APPEAL WAS DISMISSED BY THE THEN COMMISSIONER OF INCOME TAX (AP PEALS)-I VISAKHAPATNAM ON THE SPECIFIC REQUEST OF THE AUTHOR IZED REPRESENTATIVE OF THE APPELLANT TO THE EFFECT THAT APPEAL MAY BE TREATED AS WITHDRAWN. THE APPELLANTS ARGUMENT IS T HAT THE SAID LETTER WAS SUBMITTED UNDER THE MISTAKEN IMPRESSION THAT THE ENTIRE ASSESSMENT HAS BEEN SET-ASIDE TO BE DONE DEN OVO VIDE ORDER U/S 263. IN FACT ONLY AFTER THE RECEIPT OF TH E ORDER U/S 263 PAGE 3 OF 4 DATED 24-03-03 THE LETTER DT.27-03-03 WITHDRAWING THE APPEAL WAS SUBMITTED. THUS THERE WAS SUFFICIENT TIME GAP T O STUDY THE SAID ORDER U/S 263. THEREFORE THE ARGUMENT OF MIST AKEN IMPRESSION DOES NOT SEEM TO BE CORRECT. EVEN IF IT IS PRESUMED THAT SUCH A LETTER WAS FILED UNDER MISTAKEN IMPRESS ION NOTHING PREVENTED THE APPELLANT TO FILE A SECOND APPEAL BEF ORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT) AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1 DISMISSING THE SAID APPEAL. SUB-SEC.3 OF SEC.253 PROVIDES A TIME OF 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF THE COMMISSIONE R OF INCOME TAX (APPEALS) FOR FILING A SECOND APPEAL BEFORE THE ITAT. SUCH A SECOND APPEAL HAS NOT BEEN FILED. SIMILARLY WHEN T HE PETITION FILED U/S 154 OF THE ACT BY THE APPELLANT WAS REJE CTED VIDE ORDER DT.24-01-05 AGAIN NO SECOND APPEAL WAS PREFERRED B EFORE THE ITAT. THUS THOUGH THE ACT PROVIDES ALTERNATIVE REM EDIES THE APPELLANT HAS NOT AVAILED OF THE SAME. THEREFORE T HE ARGUMENT OF THE MISTAKEN IMPRESSION DEFIES COMMONSENSE AND L OGIC. CONSEQUENTLY THE LIBERAL APPROACH AS WELL AS THE J USTICE ORIENTED APPROACH ADVOCATED BY THE HONBLE SUPREME COURT IS NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE. THE APPELLANT HAD ADEQUATE TIME AND OPPORTUNITY TO SEEK REMEDY AGAINST THE WITHDRAWAL OF ORIGINAL APPEAL BY THE AUTHORIZED REPRESENTATIVE WHICH WAS NOT EXERCISED B Y HIM WHICH PRIMA-FACIE APPEARS TO BE DELIBERATE AND ON ACCOUNT OF CULPABLE NEGLIGENCE. THOUGH THE PROPOSITION THAT THE APPELLA NTS INTEREST SHOULD NOT BE VITIATED BECAUSE OF THE ILL ADVICE OF THE AUTHORIZED REPRESENTATIVE IS WELL FOUNDED THE SAME CANNOT BE ACCEPTED AS A SUFFICIENT CAUSE BECAUSE THE APPELLANT CANNOT CHO OSE TO REMAIN IN DARK FOR YEARS TOGETHER. THE PRESENT APPEAL FILE D APPEARS TO BE AN ATTEMPT ONLY TO REVIVE THE APPEAL. UNDER THE CIRCUMSTANCES I DO NOT FIND ANY SUFFICIENT CAUSE FOR CONDONATION OF DELAY IN FILING THE PRESENT APPEAL. THEREFORE THE APPEAL IS DISMISSED . SINCE THE APPEAL HAS BEEN DISMISSED AS THE SAME HAS BEEN FILED BEYOND THE LIMITATION PERIO D PRESCRIBED UNDER THE ACT NO FINDINGS WITH RESPECT TO THE GROU NDS OF APPEAL TAKEN BY THE APPELLANT IS GIVEN. 6. WE NOTICE THAT THE LD CIT (A) HAS TAKEN A CONSCI OUS DECISION AFTER PROPERLY ANALYZING THE FACTS AND CIRCUMSTANCES OF T HE CASE. ON THE OTHER HAND THE ASSESSEE COULD NOT FILE ANY MATERIAL TO CO NTROVERT THE FINDINGS OF THE PAGE 4 OF 4 LD CIT (A). IN THESE CIRCUMSTANCES WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE LD CIT (A) AND ACCORDINGLY UPHOLD THE SAME. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 22-01-2010. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM 22 ND JANUARY 2010 COPY TO 1 M/S. NYSHIDHA CONSTRUCTIONS (P) LTD. 9-14-4 SOWB HAGYA APARTMENTS CBM COMPOUND VISAKHAPATNAM. 2 THE DCIT CIRCLE-1 VISAKHAPATNAM 3 THE CIT VISAKHAPATNAM 4 THE CIT(A)-I VISAKHAPATNAM 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM