M/s Neocure Therapeutics Ltd, Hyderabad v. DCIT, Hyderabad

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SHRI G.C. GUPTA VICE PRESIDENT AND SHRI AKBER BASHA ACCOUNTANT MEMBER ITA NO.486/HYD/10 ASSESSMENT YEAR : 2004-05 M/S. NEOCURE THERAPEUTICS LTD. HYDERABAD PAN: AAACN4652N VS DY. CIT CIRCLE 16(1) HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : MR. JOSHI RESPONDENT BY : MR. K.E. SUNIL BABU O R D E R PER AKBER BASHA ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT (A)-V HYDERABAD DATED 31.10.2008 AND IT PERTAINS TO THE ASSESSMENT YEAR 2004-05. THERE IS A DELAY O F 456 DAYS IN FILING THIS APPEAL. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ORDER OF THE CIT (A) FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS SERVED ON 31-10-2008 AND THE APP EAL IS DUE TO BE FILED ON 31.12.2008. THE ORDER APPEALED WAS SERVED ON THE ASSESSEES REPRESENTATIVE AND THE SAME WAS SENT TO THE OFFICE OF THE COMPANY AND THE SAID ORDER WAS RECEIV ED BY A CLERK VIZ. MR. MURTHY WHO MISPLACED THE SAME. THE PAPERS AND ORDER OF THE CIT (A) HAVE BEEN LOCATED NOW AND THE APPEAL WAS FILED WITH A DELAY OF 456 DAYS ON 31 ST MARCH 2010. 3. ON THE OTHER HAND THE LEARNED DR SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN PROPER REASONS FOR THE D ELAY IN FILING I.T.A. NO. 486/HYD/2010 M/S. NEOCURE THERAPEUTICS LTD. ======================= 2 THE APPEAL FOR 456 DAYS. IT IS WELL SETTLED LAW T HAT THE ASSESSEE IS SUPPOSED TO EXPLAIN THE REASONS FOR EAC H DAYS DELAY IN FILING THE APPEAL. SINCE THE ASSESSEE FAI LED TO DO SO IT IS PRAYED BY THE LEARNED DR THAT THE DELAY OF 456 D AYS IN FILING THE APPEAL SHOULD NOT CONDONED IN THE INSTANT CASE . 4. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF CONDONATION OF DELAY 456 DAYS IN FILING THE APPEAL. IT IS TRUE THAT THE ASSESSEE IS ENTITLED TO FILE AN APPEAL BEY OND THE STIPULATED DATE WITH PROPER PETITION TO CONDONE THE DELAY U/S 5 OF THE LIMITATION ACT. BUT BY FILING SUCH PETITION IT DOES NOT AUTOMATICALLY ENTITLE THE ASSESSEE FOR ITS APPEAL T O BE ADMITTED. THE ASSESSEE HAS TO PROVE THAT IT WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE APPEAL WITHIN THE DUE DATE. IN THE PRESENT CASE THE REASONS ADVANCED BY THE ASSESSEE FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL ARE NOT CONVINCING. AFTER GOING THROUGH THE EXPLANATION OF THE ASSESSEE AND RELEVANT MATERIAL AVAILABLE ON RECORD WE FIND THAT THE ASSESSEE HAS NO COGENT OR GENUINE REASONS TO PROVE THAT WHY THE APPEAL WAS NOT FILED BEFORE THIS TRIBUNAL WITHI N THE TIME LIMIT STIPULATED. THIS SHOWS THAT THE ASSESSEE WAS NEGLIGENT AND CARELESS IN PROSECUTING THE APPEAL. TO CONDONE THE DELAY THERE MUST BE SUFFICIENT CAUSE. THE SAME IS MISSIN G IN THE PRESENT CASE. IN THE CASE OF KARNATAKA FOREST DEVE LOPMENT CORPORATION LIMITED VS. ACIT IN ITA NO.266/BANG/08 DATED 23RD OCTOBER 2008 IT WAS HELD THAT NON-FILING OF APPEAL BY THE ASSESSEE BEFORE THE END OF THE LIMITATION PERIOD C REATED A VESTED RIGHT TO THE REVENUE. THE DEPARTMENT THERE FORE HAD A LEGITIMATE RIGHT OVER THE TAX REVENUE ACCRUING TO I T AS A RESULT OF THE ORDER OF THE FIRST APPELLATE AUTHORITY. THI S RIGHT CANNOT BE DISTURBED LIGHT-HEARTEDLY. IN THE JUDGMENT IN T HE CASE OF I.T.A. NO. 486/HYD/2010 M/S. NEOCURE THERAPEUTICS LTD. ======================= 3 RAMLAL & ORS. VS. RAWA COALS FIELDS LIMITED REPORTE D IN AIR 1962 (SC) 361 THE APEX COURT OBSERVED THAT WHEN TH E PERIOD OF LIMITATION PRESCRIBED HAS EXPIRED THE DECREE HO LDER HAS OBTAINED A BENEFIT UNDER THE LAW OF LIMITATION TO T REAT THE DECREE AS BEYOND THE CHALLENGE AND THIS LEGAL RIGH T WHICH HAS ACCRUED TO THE DECREE HOLDER BY LAPSE OF TIME SHOUL D NOT BE LIGHT-HEARTEDLY DISTURBED. BOTH THE ABOVE JUDGMENTS SUPPORT THE REVENUE'S STAND. IN THE CASE UNDER CONSIDERATIO N THE LIMITATION PERIOD WAS EXPIRED ON 31.12.2008 AND NOT HING PREVENTED THE ASSESSEE TO FILE THE APPEAL BEFORE TH IS TRIBUNAL BEFORE THE LIMITATION PERIOD. THERE IS A DELAY OF 4 56 DAYS IN FILING THIS APPEAL WHICH IN OUR OPINION IS UNACCE PTABLE. WE FIND THAT IN THE PRESENT CASE THE DELAY IS MAINLY DUE TO THE NEGLIGENCE ON THE PART OF THE ASSESSEE. CONSIDERIN G THE TOTALITY OF FACTS AND THE CIRCUMSTANCES OF THE CASE WE ARE NOT INCLINED TO CONDONE THE DELAY AND THE APPEAL IS NOT ADMITTED. SINCE THE APPEAL REMAINS UN-ADMITTED ON THE GROUNDS OF LIMITATION WE ARE NOT INCLINED TO GO INTO THE MERI TS OF THE ISSUES INVOLVED IN THIS APPEAL. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 25 TH FEBRUARY 2011 SD/ - (G.C. GUPTA) SD/- (AKBER BASHA) VICE PRESIDENT ACCOUNTANT MEMBER HYDERABAD DATED THE 25 TH FEBRUARY 2011 TPRAO I.T.A. NO. 486/HYD/2010 M/S. NEOCURE THERAPEUTICS LTD. ======================= 4 COPY FORWARDED TO: 1. M/S. NEOCURE THERAPEUTICS LTD. C/O. M/S. P. MURALI & CO. CHARTERED ACCOUNTANTS 6-3-655/2/3 1 ST FLOOR SOMAJIGUDA HYDERABAD-82. 2. DY. COMMISSIONER OF INCOME-TAX CIRCLE-16(1) HYDERABAD. 3. THE CIT(A)-V HYDERABAD. 4. THE CIT-IV HYDERABAD 5. THE DR B BENCH ITAT