M/s. Dahod Mercantile Co.Op.Bank Ltd.,, Dahod v. The Director of Income tax(CIB),, Ahmedabad

ITA 2968/AHD/2009 | misc
Pronouncement Date: 05-01-2010 | Result: Dismissed

Appeal Details

RSA Number 296820514 RSA 2009
Assessee PAN AAAAT2916R
Bench Ahmedabad
Appeal Number ITA 2968/AHD/2009
Duration Of Justice 2 month(s)
Appellant M/s. Dahod Mercantile Co.Op.Bank Ltd.,, Dahod
Respondent The Director of Income tax(CIB),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 05-01-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 05-01-2010
Assessment Year misc
Appeal Filed On 05-11-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND D.C. AGRAWAL AM THE DAHOD MERCANTILE CO-OP. BANK LTD. MULLAJI BAZAR DAHOD- 389 151 V/S . THE DIRECTOR OF INCOME-TAX (CIB) AHMEDABAD. PAN NO.AAAAT 2916R (APPELLANT) .. (RESPONDENT) AND THE LIMDI URBAN CO- OP. BANK LTD. RADHA KRISHNA ROAD LIMDI- 389 180 DIST. DAHOD V/S . THE DIRECTOR OF INCOME-TAX (CIB) AHMEDABAD. PAN NO.AAATT2688R (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI H.V.GANDHI AR RESPONDENT BY:- SHRI P. ORAM SR.DR O R D E R PER BHAVNESH SAINI JUDICIAL MEMBER. BOTH THE APPEALS BY DIFFERENT ASSESSES ARE DIRECTE D AGAINST THE DIFFERENT ORDERS OF DIRECTORS OF INCOME-TAX (CIB) AHMEDABAD DATED 26 TH ITA NOS. 2968/AHD/2009 FINANCIAL YEAR : 2005-06 ITA NOS. 2969/AHD/2009 FINANCIAL YEAR : 2005-06 2 DECEMBER 2008 CHALLENGING THE LEVY OF PENALTY UNDE R SECTION 271FA OF THE I.T. ACT 1961 FOR ASSESSMENT YEAR 2005-06. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BOTH THE APPEALS ARE DECIDED AS UNDER :- ITA NO.2968/AHD/2009 4. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE WAS UNDER OBLIGATION TO FURNISH THE ANNUAL INFORMATION RETURN (AIR) FOR THE TRANSACTIONS REGISTERED DURING THE F.Y. ON OR BEFORE 31.08.2006. HOWEVER THE SAME WAS FURNISHED ONLY ON 30 TH MAY 2007. SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE SEEKING EXPLANATION HOWEVER NONE APP EARED ON BEHALF OF THE ASSESSEE BEFORE THE D.I.T. (CIB) AND ASSESSEE F AILED TO FURNISH ANY REASON FOR DELAY. THE LD. DIT(CIB) WAS THEREFORE S ATISFIED THAT THE ASSESSEE HAS WITHOUT ANY CAUSE FAILED TO FURNISH TH E AIR FOR THE F.Y. UNDER APPEAL WITHIN THE PRESCRIBED PERIOD. ACCORDIN GLY PENALTY WAS IMPOSED OF RS.27 100/-. ACCORDING TO THE ASSESSEE T HE IMPUGNED ORDER WAS COMMUNICATED TO IT ON 1 ST JANUARY 2009 HOWEVER APPEAL IN THE TRIBUNAL IS FILED ONLY ON 5.11.2009. ACCORDING TO T HE OFFICE THE APPEAL IS TIME BARRED BY 248 DAYS. IT IS STATED IN THE APPLIC ATION FOR CONDONATION OF DELAY THAT APPEAL WAS WRONGLY FILED BEFORE THE CIT( A) AHMEDABAD AND WHEN THE MATTER CAME TO THE KNOWLEDGE ON ADVICE OF THE TAX CONSULTANT THAT APPEAL IS TO BE FILED BEFORE THE TRIBUNAL THE APPEAL IS FILED BUT THERE IS A DELAY. LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF ARGUMENTS COULD NOT EXPLAIN AS TO WHEN ASSESSEE COULD REALIZE THAT APPEAL IS TO BE FILED BEFORE THE TRIBUNAL. ONLY VAGUE AND GENERAL E XPLANATION IS GIVEN. 3 LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND S TRONGLY OPPOSED THE REQUEST FOR CONDONATION OF DELAY. 5. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ONS OF THE PARTIES WE ARE OF THE VIEW THAT APPEAL IS TIME BARRED FOR W HICH NO SATISFACTORY EXPLANATION IS FURNISHED BY THE ASSESSEE. LD. COUNS EL FOR ASSESSEE COULD NOT EXPLAIN AS TO WHEN ASSESSEE REALIZED THAT APPEA L IS TO BE FILED BEFORE THE TRIBUNAL. NO MATERIAL OR EVIDENCE FILED TO SUPP ORT THE CONTENTIONS. PB-14 IS THE ORDER OF CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN WHICH IT IS NOTED BY CIT(A) THAT AUTHORISED REPRESE NTATIVE OF THE ASSESSEE VIDE FAX LETTER INTIMATED ON 10.08.2009 (FAXED ON 1 1.08.2009) THAT THE IMPUGNED ORDER IS CHALLENGABLE BEFORE THE TRIBUNAL. ACCORDINGLY THE APPEAL OF THE ASSESSEE WAS DISMISSED. LD. COUNSEL F OR THE ASSESSEE COULD NOT EXPLAIN AS TO WHY ASSESSEE WAS SILENT IN NOT PR EFERRING THE APPEAL BEFORE THE TRIBUNAL REALISING THE MISTAKE ON 10 TH AUGUST 2009 WHEN SUCH INTIMATION WAS GIVEN THROUGH FAX TO THE LD. CIT(A) THAT APPEAL IS NOT MAINTAINABLE BEFORE LD. CIT(A). IT WOULD THEREFORE SHOW THAT ASSESSEE HAS MADE SUBMISSION FOR CONDONATION OF DELAY ONLY O N VAGUE AND GENERAL REASONS WHICH WOULD NOT EXPLAIN ANY SUFFICIENT CAUS E OR REASONABLE CAUSE FOR DELAY IN SUBMISSION OF THE APPEAL BEFORE THE TR IBUNAL. IN ABSENCE OF ANY SUFFICIENT CAUSE FOR DELAY AND IN THE ABSENCE O F ANY EVIDENCE OR MATERIAL THE EXTRA ORDINARY DELAY IN FILING THE AP PEAL COULD NOT BE CONDONED. 6. IT WOULD BE APPRECIATED TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. VS. ITO (1979) 118 ITR 873 THE CALCUTTA HIGH COURT HELD THAT A TRIBUNAL CAN CONDONE THE DEL AY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE CASE 4 OF VEDABAI ALIAS VIJAYANATABAI BABURAO PATIL VS. SH ANTARAM BABURAO PATIL (2002) 253 ITR 798 (SUPREME COURT) WHERE IT WAS HEL D 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 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 THE DELAY IS OF A FEW DAYS. THE CO URT OBSERVED THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APP ROACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DES ERVES A LIBERAL APPROACH. NOW IN THE PRESENT CASE DELAY IS NOT OF A FEW DAYS BUT OF MORE THAN 8 MONTHS. BESIDES THERE IS ABSOLUTELY NO VALI D EXPLANATION/REASON FOR THE DELAY. IN THE CASE OF CIT VS. RAM MOHAN KAB RA (2002) 257 ITR 773 THE HONBLE PUNJAB & HARYANA HIGH COURT HAS HE LD OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITA TION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL SUCH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY C OGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PRO VISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CASE DELAY FOR FILI NG THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. IN THE CASE OF AS STT.CIT VS. TAGGAS INDUSTRIES DEVELOPMENT LTD. (2002) 80 ITD 21 (CAL) TRIBUNAL CALCUTTA BENCH CALCUTTA DID NOT CONDONE THE DELAY FOR FILI NG THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DUE TO SUFFICIENT CA USE. LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF ITAT AGRA BENCH IN THE CASE OF SHRI DILIP KUMAR GUPTA VS. ASSTT. CI T (2006) 192 TAXATION 15 (TRIB) IN WHICH THE DELAY WAS CONDONED BECAUSE A PPEAL WAS FILED BEFORE CIT(A) WRONGLY. HOWEVER AS NOTED ABOVE ASS ESSEE WAS AWARE OF 5 THE FACT THAT THE APPEAL IS WRONGLY FILED BEFORE CI T(A) EVEN THEREAFTER THE ASSESSEE DID NOT TAKE ANY STEP TIMELY TO PREFER THE APPEAL BEFORE THE TRIBUNAL. THEREFORE ASSESSEE HAS FAILED TO EXPLAIN ANY SUFFICIENT CAUSE FOR DELAY IN SUBMISSION OF THE APPEAL BEFORE THE TRIBUN AL. 7. CONSIDERING THE FACTS AND CIRCUMSTANCES NOTED AB OVE AND IN ABSENCE OF ANY VALID EXPLANATION TO EXPLAIN THE DEL AY IN FURNISHING APPEAL BEFORE THE TRIBUNAL WE ARE OF THE VIEW THAT THE DE LAY SHOULD NOT BE CONDONED IN THE MATTER. WE MAY ALSO NOTE HERE THAT ASSESSEE HAS FAILED TO FURNISH ANY REASONS FOR THE DELAY IN FURNISHING ANN UAL INFORMATION RETURN BEFORE THE AUTHORITY BELOW. THEREFORE ASSESSEES C ONDUCT WOULD EXPLAIN THAT ASSESSEE HAD BEEN NEGLIGENT SINCE BEGINNING IN NOT TAKING THE STEPS IN THE MATTER. CONSIDERING THE FACTS AND CIRCUMSTANCES WE ARE OF THE VIEW THAT ASSESSEE HAS FAILED TO EXPLAIN SUFFICIENT CAUS E FOR DELAY IN SUBMISSION OF THE APPEAL THEREFORE APPEAL OF THE ASSESSEE IS TREATED AS TIME BARRED AND IS ACCORDINGLY DISMISSED IN LIMINE. ITA NO.2969/AHD/2009 8. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT FACTS ARE SAME IN THIS APPEAL AS ARGUED BY HIM IN EARLIER APPEAL. BY FOLLO WING THE ORDER IN ITA NO.2968/AHD/2009 THE PRESENT APPEAL IS ALSO TREATE D AS TIME BARRED AND ACCORDINGLY DISMISSED IN LIMINE. ACCORDINGLY ITA NO .2969/AHD/2009 IS DISMISSED. 6 9. AS A RESULT BOTH THE APPEALS OF DIFFERENT ASSES SES ARE DISMISSED. SD/- SD/- (D.C.AGRAWAL) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 05/01/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD ORDER PRONOUNCED IN OPEN COURT ON 05/01/2010