SILKASIA, MUMBAI v. ITO WD 17(2)(1), MUMBAI

ITA 4739/MUM/2010 | 2000-2001
Pronouncement Date: 29-07-2011 | Result: Allowed

Appeal Details

RSA Number 473919914 RSA 2010
Assessee PAN AAAFS3741E
Bench Mumbai
Appeal Number ITA 4739/MUM/2010
Duration Of Justice 1 year(s) 1 month(s) 21 day(s)
Appellant SILKASIA, MUMBAI
Respondent ITO WD 17(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 29-07-2011
Assessment Year 2000-2001
Appeal Filed On 08-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH FMUMBAI BEFORE SHRI T.R. SOOD (AM) AND SMT. ASHA VIJAYARAGH AVAN (JM) ITA NO. 4739/MUM/2010 ASSESSMENT YEAR 2000-01 SILKASIA 324 WADALA UDYOG BHAWAN NAIGAON CROSS ROAD WADALA MUMBAI-400 031 PAN-AAAFS 3741E VS. THE ITO WARD 17(2)(1) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ISHWAR P. RATHI RESPONDENT BY: SHRI SUBACHAN RAM DATE OF HEARING : 25.07.2011 DATE OF PRONOUNCEMENT: 29 TH JULY 2011 O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 31.3. 2010 PASSED BY THE LD. CIT(A)- 29 FOR T HE ASSESSMENT YEAR 2000- 01. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPOR T OF MANUFACTURED GOODS. THE ASSESSEE HAD ALREADY FILED RETURN OF IN COME FOR THE ASSESSMENT YEAR 2000-01 ON 23.10.2000 DECLARING A TOTAL INCOME OF RS. 3 26 540/- AFTER CLAIMING THE DEDUCTION U/S. 80HHC AT RS. 32 18 843/ -. HOWEVER NOTICE U/S. 148 DT. 10.11.2006 WAS ISSUED AS THERE WAS A NEW AM ENDMENT MADE TO SEC. 80-HHC IN THE YEAR 2005 REGARDING EXPORT INCENTIVES . THE ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 147 OF THE I.T. ACT 19 61. ITA NO. 4739/M/2010 2 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE T HE LD. CIT(A). ACCORDING TO THE ASSESSEE WHILE PREFERRING THE APPE AL BEFORE THE LD. CIT(A) THE ASSESSEE WAS NOT AWARE THAT THERE HAS BEEN A DE LAY OF 14 DAYS IN FILING THE APPEAL. 4. THE LD. CIT(A) HELD AS FOLLOWS: THE APPELLANT HAS FILED WRITTEN SUBMISSIONS REGARD ING REOPENING TAXATION OF DEPB ENTITLEMENTS ETC. THI S HAS BEEN FORWARDED TO THE AO. HOWEVER THE FIRST BASIC ISSU E IS THAT APPELLANT HAS FILED APPEAL LATE. THE APPEAL HAS BE EN FILED ON 13.2.2008 AND THE ORDER OF THE AO IS SAID TO BE REC EIVED ON 18.1.2008. THE AO HAS POINTED OUT IN HIS LETTER DT . 16 TH OCTOBER 2008 THAT THE ASSESSMENT ORDER WAS SERVED ON THE APPELLANT ON 31.12.2007 AND ACKNOWLEDGEMENT OF SERV ICE IS ON RECORD. I FIND THAT APPEAL HAS BEEN FILED LATE BEYOND THE PE RMISSIBLE LIMIT OF 30 DAYS. APPELLANT HAS ALSO NOT SUBMITTED ANY REASONABLE CAUSE FOR SUCH DELAY. THEREFORE THE APP EAL CANNOT BE ADMITTED AND IS DISMISSED. THERE IS NO NEED TO ADJUDICATE ON THE MERITS OF OTHER ISSUES COVERED IN THE GROUND S OF APPEAL. 5. THE ASSESSEE HAS NOW FILED AN AFFIDAVIT WHICH RE ADS AS FOLLOWS: I CHANDRA MOHAN AGARWAL AGED ABOUT 56 YEARS RESIDING AT 17-A ARUN BLDG MUMBAI-400 036 THE PA RTNER OF THE APPELLANT FIRM M/S. SILKASIA DO HEREBY SOLEMNLY AF FIRM AND STATE AS UNDER; 1. THAT WE HAD RECEIVED THE ASSESSMENT ORDER FOR THE A SST. YEAR 2000-01 FROM OUR REGULAR TAX CONSULTANT ON 29.01.20 08 AND FURTHER OUR REGULAR TAX CONSULTANT HAS INFORMED US THAT HE HAS COLLECTED THE SAME ON 18.01.2008 FOR THE INCOME TAX DEPARTMENT. 2. ON THE BASIS OF THE AFORESAID INFORMATION WE HAD FI LED AN APPEAL AGAINST THIS ORDER ON 13.02.2008 WITH AN ITA NO. 4739/M/2010 3 UNDERSTANDING THAT THE SAME IS IN TIME AS THE ORDER WAS COLLECTED ON 18.01.2008. 3. IN FORM 35 ALSO WE HAD MENTIONED THE DATE OF SERVIC E OF NOTICE OF DEMAND AS 18.01.2008. AND AT THE SAME TIME WE HA D CHALLENGED THE VALIDITY OF THE ORDER AS BARRED BY L IMITATION SINCE IT WAS SERVED ON 18.01.2008. 4. DURING THE COURSE OF APPELLATE PROCEEDING WHEN THE REMAND REPORT WAS CALLED FOR AND THE ASSESSING OFFICER HAS REPORTED THAT THE ORDER WAS SERVED ON 31.12.2007 ONLY AT TH AT STAGE WE CAME TO KNOW THAT THE APPEAL IS LATE BY 14 DAYS HOWEVER WE COULD NOT GOT AN OPPORTUNITY TO MAKE OUR SUBMISS ION BEFORE THE COMMISSIONER OF INCOME TAX APPEALS AS TH E ORDER WAS PASSED WITHOUT GIVING ANY OPPORTUNITY TO US IN RESPECT OF SUCH DELAY. 5. THAT IT WAS NOT A DELIBERATE LAPSE ON OUR PART FOR THE AFORESAID DELAY IN FILING THIS APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEALS. BUT THE SAME WAS BASED ON MISCOMMUNICA TION ON THE PART OF THE OUR TAX CONSULTANT THAT HE HAS C OLLECTED THE ORDER ONLY ON 18.01.2008. 6. THE DELAY IN FILING OF THIS APPEAL IS FULLY ON ACCO UNT OF THE ABOVE MENTIONED REASONS. UNDER THE AFORESAID CIRCUM STANCES WE PRAY TO YOUR HONOUR TO CONDONE THE GENUINE DELAY AND THE APPEAL BE RESTORED BACK TO THE COMMISSIONER OF INCO ME TAX APPEALS AS OTHERWISE IT WOULD LEAD TO GREAT HARDSH IP TO US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED AS FOLLOWS: IT MAY BE AGAIN REQUESTED THAT SUCH APPELLANT MUST SHOW THAT HE WAS DILIGENT ALL ALONG IN TAKING APPROPRIATE STE PS AND THE DELAY WAS CAUSED NOTWITHSTANDING HIS DUE DILIGENCE. IF HE APP EARS TO BE GUILTY OF LACHES OR NEGLIGENCE AND DOES NOT TAKE APPROPRIATE STEPS FOR PURSUING HIS REMEDY TILL ABOUT THE CLOSE OF THE PERIOD PRESC RIBED BY LAW FOR THE FILING OF THE APPEAL HE MUST BE PREPARED TO HAVE H IS REMEDY BARRED WITHOUT EXPECTING CONDONATION AS HELD IN THE CASES OF BALEDO LAL ROY VS STATE OF BIHAR (1960) II STC 104 108-109 (PAT) VITHALDAS GIRDHARIDAS VS ITAT (1980) 122 ITR 859 (BOM) JAHAR MAHAL VS G.M. PRITCHARD AIR 1919 PAT 503; KEDARNATH VS ZUMBERLAL AIR 1916 NAG ITA NO. 4739/M/2010 4 39 HAKIMIA VS J.C GAMMON AIR 1930 NAG 121 PANDIT KRISHNA RAO DATTATRAYA PHALKE VS TRIMBAK AIR 1930 NAG 121. 7.1 THE ASSESSEE HAS SUBMITTED IN FORM OF AFFIDAVIT THAT DUE TO MIS COMMUNICATION BY THE TAX CONSULTANT THE DATE OF REC EIPT OF ORDER HAS BEEN NOTED AS 18.1.2008. THE ASSESSEE HAS ALSO MENTIONE D THE DATE OF SERVICE OF NOTICE IN FORM NO. 35 AS 18.1.2008. THE LD. COUNSE L SHRI ISHWAR P. RATHI EXPLAINED THAT ONLY DURING THE COURSE OF APPELLATE PROCEEDING WHEN THE REMAND REPORT WAS CALLED FOR AND THE AO HAD REPORTE D THAT THE ORDER WAS SERVED ON 31.12.2007 THE ASSESSEE CAME TO KNOW THA T THE APPEAL IS LATE BY 14 DAYS. HOWEVER HE COULD NOT GET AN OPPORTUNITY TO MAKE ITS SUBMISSION BEFORE THE LD. CIT(A) SINCE NO OPPORTUNITY WAS GIVE N TO THE ASSESSEE TO EXPLAIN THE DELAY. 8. IN THESE CIRCUMSTANCES IN THE INTEREST OF JUSTIC E AS THE ASSESSEE HAS SUBMITTED REASONABLE CAUSE FOR SUCH DELAY WE CONDO NE THE DELAY OF 14 DAYS RELYING ON THE JUDGEMENT OF THE HONBLE SUPREME COU RT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI AND OTH ERS [(1987) 167 ITR 471 (SC)] AND ALSO IMPROVEMENT TRUST LUDHIANA VS. UJGAR SINGH & ORS. DATED JUNE 09 2010. 9. HAVING CONDONED THE DELAY OF 14 DAYS IN FILING T HE APPEAL WE REMIT THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDED THE ISSUE ON MERITS. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011 SD/- SD/- (T.R. SOOD) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 29 TH JULY 2011 RJ ITA NO. 4739/M/2010 5 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA NO. 4739/M/2010 6 DATE INITIALS 1. DRAFT DICTATED ON: 25.7.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 25.07.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: