M/s ESS Jay Steels (P) Ltd., Agra v. Dy. C.I.T. Circle-4(1), Agra

ITA 40/AGR/2014 | 2008-2009
Pronouncement Date: 30-04-2014 | Result: Dismissed

Appeal Details

RSA Number 4020314 RSA 2014
Assessee PAN AAACE6481A
Bench Agra
Appeal Number ITA 40/AGR/2014
Duration Of Justice 1 month(s) 25 day(s)
Appellant M/s ESS Jay Steels (P) Ltd., Agra
Respondent Dy. C.I.T. Circle-4(1), Agra
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 30-04-2014
Date Of Final Hearing 03-04-2014
Next Hearing Date 03-04-2014
Assessment Year 2008-2009
Appeal Filed On 05-03-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE : SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI PRAMOD KUMAR ACCOUNTANT MEMBER ITA NO. 40/AGRA/2014 ASSTT. YEAR : 2008-09 M/S. ESS JAY STEELS (P) LTD. VS. D.C.I.T. CIRCL E 4(1) 63 NUNHAI ROAD SAHADRA AGRA. AGRA. (PAN : AAACE 6481 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.N. AGARWAL ADVOCATE RESPONDENT BY : SMT. ANURADHA JR. DR DATE OF HEARING : 03.04.2014 DATE OF PRONOUNCEMENT : 30.04.2014 ORDER PER BHAVNESH SAINI J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II AGRA DATED 01.03.2012 FOR THE ASSESSMENT YEAR 2008- 09 CHALLENGING THE ADDITION OF RS.1 59 500/- U/S. 41(1) OF THE IT ACT. 2. THE IMPUGNED ORDER WAS COMMUNICATED TO THE ASSES SEE ON 10.03.2012 AND THE ASSESSEE FILED THE APPEAL IN THE OFFICE OF THE TRIBUNAL ON 05.03.2014. THUS THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 684 DAYS. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY IN WHICH IT IS STATED THAT AF TER SERVICE OF THE IMPUGNED ORDER IN MARCH 2013 AND ON ACCOUNT OF LACK OF LEGAL ADVI CE NO APPEAL WAS FILED AND IT ITA NO. 40/AGRA/2014 2 WAS EXPLAINED TO THE ASSESSEE THAT FINDING OF THE L D. CIT(A) CAN BE RECTIFIED BY FILING AN APPLICATION U/S. 154 AGAINST DISALLOWANCE OF RS.1 59 400/- AS IS STATED IN THE APPLICATION FOR CODONATION OF DELAY. THE LD. CI T(A)-II DISMISSED THE APPLICATION U/S. 154 OF THE IT ACT. THEREFORE THE PRESENT APPEAL IS FILED. IT IS THEREFORE SUBMITTED THAT ON ACCOUNT OF ADVICE OF T HE COUNSEL THE APPEAL WAS NOT FILED AND THE DELAY MAY BE CONDONED. AFFIDAVIT OF S HRI P.N. AGARWAL ADVOCATE IS FILED. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES ONLY ON THE POINT OF LIMITATION AND WE DO NOT FIND IF THERE IS ANY SUFFI CIENT CAUSE EXPLAINED FOR DELAY IN SUBMISSION OF APPEAL. IT IS ADMITTED FACT THAT AFTE R RECEIPT OF THE IMPUGNED ORDER IN MARCH 2012 THE ASSESSEE DELIBERATELY DID NOT FILE THE APPEAL AGAINST THE IMPUGNED ORDER BEFORE THE TRIBUNAL BECAUSE THE COUNSEL FOR T HE ASSESSEE ADVISED HIM NOT TO FILE ANY APPEAL BECAUSE IT WAS IN THE INTEREST OF A SSESSEE TO FILE APPLICATION FOR RECTIFICATION U/S. 154 BEFORE THE LD. CIT(A). IT IS WELL SETTLED LAW THAT THE APPELLATE TRIBUNAL MAY ADMIT AN APPEAL AFTER EXPIRY OF THE LI MITATION IF IT IS SPECIFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE A PPEAL WITHIN THAT PERIOD. SUFFICIENT CAUSE WOULD MEAN A CAUSE WHICH IS BEYON D THE CONTROL OF THE ASSESSEE. SUFFICIENT CAUSE MEANS WHICH PREVEST A REASONABLE M AN OF ORDINARY PRUDENCE ACTING UNDER NORMAL CIRCUMSTANCES WITHOUT NEGLIGENC E OR INACTION OR WANT OF BONA ITA NO. 40/AGRA/2014 3 FIDE . THE ASSESSEES COUNSEL HAS ADVISED THE ASSESSEE N OT TO FILE THE APPEAL AGAINST THE IMPUGNED ORDER BECAUSE IT WAS IN THE INTEREST OF ASSESSEE AND REMEDY COULD BE AVAILED BY FILING APPLICATION U/S. 154. THUS THE A SSESSEE ACCEPTED THE LEGAL ADVICE GIVEN BY THE COUNSEL AND DELIBERATELY DID NOT FILE THE APPEAL BEFORE THE TRIBUNAL. THEREFORE THERE IS NO QUESTION OF ASSESSEE HAVING ANY SUFFICIENT CAUSE TO EXPLAIN THE DELAY. THE SAME COUNSEL WHO HAS APPEARED BEFORE THE LD. CIT(A) HAS FILED AFFIDAVIT BEFORE US WHO IS REGULARLY APPEARING BEF ORE THE TRIBUNAL HENCE THERE IS NO QUESTION OF LACK OF LEGAL ADVICE. THEREFORE THE RE IS NO QUESTION OF HIS TAKING A CONTRARY VIEW LATER ON FOR FURTHER ADVISING THE ASS ESSEE TO FILE THE PRESENT APPEAL BEFORE THE TRIBUNAL. IT WOULD ALSO SUGGEST THAT THE ASSESSEE DELIBERATELY ACCEPTED THE RIGHT ADVICE OF THE COUNSEL THAT RECTIFICATION IN THE IMPUGNED ORDER WOULD BE PROPER BECAUSE THE AMOUNT OF ADDITION WAS VERY MEAG ER/SMALL. THEREFORE EVERYTHING NOW CONTENDED IS AFTERTHOUGHT TO FILE TH E PRESENT APPEAL AFTER A LONG PERIOD EXPIRED AS PER LAW. THE ASSESSEE CANNOT BE S AID TO BE ACTED BONAFIDELY BECAUSE AFTER DISMISSAL OF RECTIFICATION APPLICATIO N BY LD. CIT(A) ASSESSEE SHOULD NOT BLAME THE COUNSEL WHO GAVE HIM RIGHT ADVICE AT THAT TIME. 4. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CA SE OF HIND DEVELOPMENT CORPN. VS. ITO 118 ITR 873 THE CALCUTTA HIGH COURT HELD THAT A TRIBUNAL CAN CONDONE ITA NO. 40/AGRA/2014 4 THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DEL AY IN THE SUBMISSION OF THE APPEAL. IN THE CASE OF VEDABAI ALIA VIJAYANATABAI BABURAO P ATIL VS. SHANTARAM BABURAO PATIL 253 ITR 798 (SC) IT WAS HELD THAT WHILE EXE RCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT 1963 TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING THE 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 COURT OBSERVE D THAT WHEREAS IN THE FORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. THERE IS A BSOLUTELY NO VALID EXPLANATION/REASON FOR THE DELAY. IN THE CASE OF CI T VS. RAM MOHAN KABRA 257 ITR 773 THE HONBLE PUNJAB & HARYANA HIGH COURT HA S OBSERVED THAT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND P ROVIDES FOR POWER TO CONDONE THE DELAY AS WELL AS SUCH DELAY CAN ONLY BE CONDONED O NLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS CA SE DELAY FOR FILING THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. THE FACTS IN THE CASES CITED BY LD. COUNSEL FOR ASSESSEE ARE CLEARLY DISTINGUISHABLE FROM THE C ASE OF THE ASSESSEE AND WOULD NOT ITA NO. 40/AGRA/2014 5 SUPPORT THE ASSESSEES EXPLANATION. THEREFORE THE APPEAL OF THE ASSESSEE SHALL HAVE TO BE DISMISSED IN LIMINE HOLDING THE SAME TO BE TIME BARRED. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY