DAUCUNHA PROPERTIES & INVESTMENTS P. LTD, MUMBAI v. ACIT (OSD) 2, MUMBAI

ITA 3703/MUM/2010 | 2000-2001
Pronouncement Date: 30-11-2011 | Result: Partly Allowed

Appeal Details

RSA Number 370319914 RSA 2010
Assessee PAN AAACD2940H
Bench Mumbai
Appeal Number ITA 3703/MUM/2010
Duration Of Justice 1 year(s) 6 month(s) 20 day(s)
Appellant DAUCUNHA PROPERTIES & INVESTMENTS P. LTD, MUMBAI
Respondent ACIT (OSD) 2, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 30-11-2011
Date Of Final Hearing 30-11-2011
Next Hearing Date 30-11-2011
Assessment Year 2000-2001
Appeal Filed On 10-05-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI R K PANDA AM & SHRI VIJAY PAL RAO JM ITA NOS. 3703 & 3704/MUM/2010 (ASST YEARS 2000-01 & 2001-02) DACUNHA PROPERTIES & INVESTMENTS P LTD ELYSIUM MANSION 4 TH FLOOR WALTON ROAD COLABA MUMBAI 5 VS THE ASST COMMR OF INCOME TAX(OSD) 2 MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAACD2940H ASSESSEE BY MS J R PARIKIH REVENUE BY SH R K SAHU DT.OF HEARING 30.11.2011 DT OF PRONOUNCEMENT 30.11.2011 ORDER PER VIJAY PAL RAO JM THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS BOTH DATED 4.3.2010 OF THE CIT(A) FOR THE AYS 2000-01 AN D 2001-02 RESPECTIVELY. 2 THE REOPENING ASSESSMENTS IN BOTH THE ASSESSMENT YEARS WERE FRAMED ON 3.12.2007. THE ASSESSEE FILED APPEALS BEFORE THE CI T(A) ON 22.9.2008. THEREFORE THERE WAS A DELAY OF EIGHT MONTHS IN FILING THESE APPEALS BEFORE THE CIT(A). THE ASSESSEE ALSO FILED AN AFFIDAVIT FOR EXPLAINING THE DELAY IN FILING THESE APPEALS. THE CIT(A) DISMISSED BOTH THE APPEALS OF THE ASSESSEE ON LIMI TATION WITHOUT GOING INTO THE MERITS OF THE CASE. THE ORDERS FOR BOTH THE YEARS ARE IDENTICAL. THE CONCLUDING PART OF THE ORDER OF THE CIT(A) IS REPRODUCED HEREUNDER: 2 3. I DO NOT AGREE WITH THE SUBMISSIONS OF THE AUTH ORISED REPRESENTATIVE. I FIND THAT THE COMPANY HAS NEGLECTED THE FILING OF APPEAL FOR MORE THAN 8 MONTHS. THE ASSESSMENT ORDER WAS PASSED ON 3.12.2007 AND AP PEAL WAS FILED ONLY ON 22.9.2008 ALTHOUGH THE ACCOUNTANT JOINED THE FIRM ON 13.NOV 2006. AS SUCH I DO NOT ACCEPT THAT THE ASSESSEE WAS PREVENTED BY SU FFICIENT CAUSE TO FILE THE APPEAL IN TIME. I ALSO FIND THAT THE ASSESSEE HAS N OT PAID THE TAXES. THE RELEVANT COLUMN ONLY SAYS THAT 154 PETITION IS PENDI NG BEFORE THE ASSESSING OFFICER. 4 SINCE THE APPEAL HAS NOT BEEN FILED ON TIME AND T AXES HAVE NOT BEEN PAID THE APPEAL FILE BY THE APPELLANT IS DISMISSED BEING BELAYED BEYOND TIME. 3 BEFORE US THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE ASSESSEE HAS FILED THE AFFIDAVIT FOR EXPLAINING THE DELAY. SHE HAS SUB MITTED THAT THE DELAY WAS DULY EXPLAINED BEFORE THE CIT(A) AS THE ASSESSEE HAD SUF FICIENT REASON FOR NOT FILING THE APPEALS WITHIN THE TIME. IT WAS SPECIFICALLY BROUG HT TO THE NOTICE OF THE CIT(A) THAT THERE WAS A CHANGE IN STAFF AS THE OLD ACCOUNTANT WHO WAS HANDLING THE TAX MATTERS LEFT THE COMPANY AND THE NEW PERSON JOINED COULD NOT PREPARE THE DETAILS IN TIME AND ALSO DID NOT PLACED THE FULL FACTS BEFO RE THE MANAGEMENT. EVEN THERE WAS AN APPLICATION U/S 154 BEFORE THE ASSESSING OFF ICER FOR DISPOSAL. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE WAS PREVEN TED BY REASONABLE CAUSE AND THE DELAY WAS NOT INTENTIONAL OR DELIBERATE BUT DUE TO UNAVOIDABLE CIRCUMSTANCES. SHE HAS RELIED UPON THE DECISION OF THE HONBLE SUP REME COURT IN THE CASE OF ALLAHABAD BANK VS STATE OF WEST BENGAL & OTHERS REP ORTED IN (2007) 12 SCC 672. THUS THE LD AR OF THE ASSESSEE HAS PLEADED THAT TH E DELAY MAY BE CONDONED AND THE MATTER MAY BE REMANDED TO THE RECORD OF THE CIT (A) FOR DECIDING THE SAME ON MERIT. 3.1 THE LD DR ON THE OTHER HAND HAS VEHEMENTLY OP POSED THE CONDITION OF DELAY AND SUBMITTED THAT THE ASSESSEE HAS NOT EXPLA INED THE SUFFICIENT REASON FOR 3 NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITAT ION; THEREFORE THE ASSESSEE CANNOT BE ALLOWED TO TAKE ADVANTAGE OF PROCESS OF LAW. 4 WE HAVE CONSIDERED THE RIVAL CONTENTION AND RELEV ANT MATERIAL ON RECORD. IT IS SETTLED PROPOSITION OF LAW THAT WHILE DECIDING TH E CONDONATION OF DELAY THE COURT SHOULD TAKE A LENIENT VIEW. HOWEVER IT IS ALWAYS A QUESTION WHETHER IT WAS BONAFIDE OR A DEVICE TO COVER UP ULTERIOR PURPOSE OR ATTEMPT TO SAVE THE LIMITATION IN UNDERHAND WAY. WHILE CONSTRUING THE SUFFICIENT CAU SE THE COURT SHOULD BE LENIENT ON SUCH MATTERS BUT A LITIGANT DOES NOT STAND THE B ENEFIT BY FILING THE APPEAL BELATED STAGE. WHENEVER SUBSTANTIAL JUSTICE AND TEC HNICAL CONSIDERATION ARE OPPOSED TO EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED AND JUSTICE- ORIENTED APPROACH HAS TO BE TAKEN WHILE DECIDING TH E MATTER OF CONDONATION OF DELAY. WHEN THE REASONS EXPLAINED BY THE ASSESSEE ARE NOT FOUND AS MALAFIDE OR A DEVICE TO COVER UP ULTERIOR PURPOSES THEN A LIBERA L APPROACH HAS TO BE TAKEN FOR CONSIDERING THE SUFFICIENCY OF CAUSE. 4.1 THE CIT(A) HAS REJECTED THE PRAYER OF THE ASSES SEE ON THE GROUND THAT THE ASSESSEE WAS NEGLIGENT IN FILING THE APPEALS BELAT EDLY. ACCORDINGLY HAVING RECORD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN T HE INTEREST OF JUSTICE WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEALS BEFOR E THE CIT(A) DESERVES TO BE CONDONED AND THE MATTER SHOULD BE ADJUDICATED ON M ERITS. HENCE WE CONDONE THE DELAY IN FILING THE APPEALS BEFORE THE CIT(A) A ND REMAND THE MATTER TO THE RECORD OF THE CIT(A) FOR DECIDING THE SAME ON MERIT . THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CIT(A) ALONG WITH THE COPY OF TH IS ORDER AND TAKE THE NEXT DATE OF HEARING AND NOT TO TAKE UNNECESSARY ADJOURNMENT . 5 IN THE RESULT THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 4 ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING I.E. 30 TH NOV 2011. SD/ SD/ ( R K PANDA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:30 TH NOV 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI