RAJESH JASOTANI,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 286/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2012-13 cuke Shri Rajesh Jasotani, The Income Tax Officer, 52, Vidyut Abhiyanta Colony, Malviya Vs. Ward- 1(1), Nagar, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABTPJ 9151 D vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargieya (Adv.) jktLo dh vksj ls@ Revenue by : Smt. Poonam Rai (DCIT) lquokbZ dh rkjh[k@ Date of Hearing : 31/01/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 07/02/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, JM

This Appeal by the Assessee is directed against the order dated

01.07.2016 of Ld. CIT(A)-I, Jaipur pertaining to the Assessment Year 2012-

“1.1 The Ld. CIT(A) erred in law as well as on the facts of the case in holding the AO justified on restricting the deduction u/s 54 of the Act to the extent of Rs.6,02,210/- only as against the deduction of Rs.19,24,230/- claimed by the appellant thus, thereby confirming the denial of deduction by the AO to the extent of Rs.13,22,020/-. The denial of the deduction by the AO to that extent and confirmation by the Ld. CIT(A) being contrary to the provisions of law and facts, the appellant kindly be held entitled for the entire amount of deduction of Rs.19,24,230/- as claimed u/s 54 of the Act.

1.2 The Ld. CIT(A) erred in law as well as on the facts of the case in confirming the denial of the AO of the deduction of the claimed by the appellant u/s 54 of the Act up to Rs.13,22,020/-. The

2 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

denial by the AO and confirmation by the Ld. CIT(A) being contrary to the provisions of law and facts, the disallowance so made kindly be deleted and the deduction as claimed kindly be allowed in full.

has filed an application for Condonation of Delay which is supported by the

affidavit of the assessee as well as the affidavit of one Shri Sonu Motvani

stated to have been working with the assessee.

dated 01/07/2016 of Ld. CIT(A) was received by the assessee on 05.08.2016

and the same was handed over to Shri Sonu Motvani an employee of the

assessee, to be handed over to his Counsel Shri Harish Sharma (Advocate).

Unfortunately, Shri Sonu Motvani misplaced the impugned order and also

forgotten to report back that he could not complete the task given to him.

3 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

Only in the month of March, 2017 when the assessee met his Counsel Shri

Harish Sharma (Adv.) to discuss the tax related matters, it came to the notice

of the Ld. Counsel that such order has already been passed but was not given

to him. The Ld. AR has submitted that immediately, thereafter, the assessee

asked his employee Shri Sonu Motvani and efforts were made to search out

the papers. It took few days to locate the papers which were then handed

over to the Ld. Counsel of the assessee, who prepared the appeal and it was

finally filed on 13.04.2017. The Ld. AR has further contended that the

assessee is not an educated person and is very poor being an under-graduate.

He is not aware of the complexities of tax laws, more particularly, when this

was first occasion when, the additions were made and he was required to file

an appeal. Therefore, he was not very serious when he got the first appellate

order. However, as usual he handed over the same to his employee Shri

Sonu Motvani to handover the paper to his regular tax consultant. The

assessee was unaware of the fact that the said order was not handed over to

the Counsel. More unfortunately, Shri Sonu Motvani even thereafter

completely lost sight of this fact. Only in the month of March, 2017 the

assessee realized that the impugned order was not handed over to the

Counsel for filing an appeal. Thus, the Ld. AR has submitted that due to

bonafide mistake committed by the employee and the assessee being under

bonafide belief that the employee must have handed over the papers to his

Counsel, the appeal could not be filed within the period of limitation. He has

4 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

pleaded the delay in filing the appeal may be condoned and decide the appeal

of the assessee on merits. He has relied upon the decision of the Hon’ble

Supreme Court in the case of Collector, Land & Acquisition vs. Mst.

Katiji & Others 167 ITR 471, and submitted that the Hon’ble Supreme

Court has held that a liberal approach has to be taken by the Courts while

considering the case for condonation of delay. The provisions of condonation

of delay allow the Courts to do substantial justice to the parties by disposing

the matters on merits. The expression sufficient cause employed by the

legislature is adequately elastic to enable the Courts to apply the law in a

meaningful manner which subserves the ends of justice.

3.1 He is also relied upon the decision of Hon’ble Madras High Court in the

case of Hosanna Ministries vs. ITO 152 DTR 0008 and submitted that

the Hon’ble High Court has condoned the delay of 1902 days in filing the

appeal against the order passed U/s 12AA by Ld. CIT. The Hon’ble High Court

has observed that the Court must take a pragmatic view in appreciating the

reasons attributable to the delay caused to the party to approach the Court of

law. He has relied upon the following decisions rendered in the case as

under:-

5 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

Thus, the Ld. AR has submitted that filing the appeal belatedly, the assessee

has achieved no purpose and therefore it was not a devise to cover an ulterior

purpose or an attempt to save limitation.

the assessee is vague and contrary to the record. She has pointed out that

the assessee in his application for condonation of delay as well as in the

affidavit has stated that the assessee came to know only in the Month of

March, 2017, that the impugned order was not handed over by his employee

to his Counsel, whereas the Memo of appeal in Form No. 36 and verification

thereof has been signed by the assessee on 19.12.2016. The Ld. D/R has

also pointed out that even as per the Form No. 36 and grounds attached

thereto, it is clear that the same were prepared on 19.12.2016 as the file was

created in the computer system on the same date as appearing at the bottom

of the page. Thus, the Ld. D/R has submitted that the cause of delay

explained by the assessee is not supported by the facts as emerged from the

record and therefore, the assessee has not explained the real reasons of delay

in filing the present appeal. The assessee has suppressed the true facts and

presents an artificial story which is vague and cannot be accepted as a

sufficient cause for delay in filing the appeal.

In rejoinder the Ld. AR of the assessee submitted that the date mentioned in

the Memo of Appeal in Form No. 36 is a typographically mistake and

therefore, the same is not significant for the purpose of deciding the

6 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

condonation of delay, when the assessee has explained the reasons for delay

in the application which is supported by the affidavits of the assessee as well

as the employee Shri Sonu Motvani.

on record. The assessee has stated to have received the impugned order on

05.08.2016 however, the appeal has been filed on 13.04.2017, and therefore,

there is a delay of 191 days in filing the present appeal. There is no quarrel

that while considering the condonation of delay the Court should take a

lenient view. However it is always a question whether the explanation and

reason for delay was bonafide or it is merely a devise to cover an ulterior

purpose such as latches on the part of the litigant or an attempt to save

limitation in under headway. It is also a settled principle that the expression

sufficient caused be interpreted in a manner which sub-serves the ends of

justice. However, at the same time, the requirement of sufficient cause of

delay cannot be ignored and in case the delay is not an ordinary delay but it is

an inordinary and abnormal then it becomes more relevant that the sufficient

cause must be explained to the satisfaction of the Court. Whenever

substantial justice and technical consideration are opposed to each other

cause of substantial justice has to be preferred. However, this does not mean

the litigation has a free license to approach the Courts on this will.

5.1 The assessee has explained the cause of delay that after receiving the

impugned order on 05/08/2016 the assessee handed over the same to his

7 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

employee Shri Sonu Motvani for handed over to its Counsel Shri Harish

Sharma (Adv.). However till March, 2017 the assessee did not realize that the

said order was not handed over to its Counsel and accordingly the assessee

took steps to file an appeal once the assessee realized that the impugned

order was not handed over to its Counsel. In ordinary case, we would have no

reasons to disbelieve such an explanation but in the case of the assessee we

find that the Memo of appeal has been signed and verified on 19.12.2016.

Though, the Ld. AR has submitted that this is a typographical mistake

however, we find that the file in the name of the assessee itself was created

on 19.12.2016 and therefore the date of creation of file by the computer

cannot be considered as a typographical mistake. For ready reference, we

placed a scanned copy of Form No. 36 and grounds of appeal as under:-

8 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

9 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

10 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

Thus, if there is a typographical mistake in writing the date against the

verification then it would not have matched with the date of creation of file

and the explanation of the assessee would have been supported by the date

of creation of file itself. Rather in the case of the assessee the date of

verification as well as the date of creation of file is same and therefore, the

mistake in typing the date is absolutely ruled out. Even if the explanation of

the assessee can be accepted that the employee of the assessee misplaced or

forgotten to handover the order to the Counsel and report to the assessee,

the delay after 19.12.2016 remained unexplained. The vary basis and

reasons as explained by the assessee lost its foundation when the Memo of

appeal and grounds were prepared and signed on 19.12.2016 which falsify

the explanation of the assessee that the assessee came to know about non-

filing of the appeal only in the month of March, 2017.

5.2 Even otherwise merely handing over the impugned order to the Counsel

is not considered as the required steps have been taken by the assessee until

and unless the assesseee sign the appeal memo and also pay the appeal fee.

Therefore, the assessee cannot take a plea that because the order was not

handed over to the Counsel by the employee of the assessee the appeal could

not be filed within a period of limitation. This can be an explanation only for a

limited period of delay and not for the delay of more than six months. The

assessee cannot plead his latches, and negligence as a bonafide mistake on

the part of the employee. Mere handing over the order to the Counsel of the

11 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur.

assessee would not discharge the assessee from the requisite steps to be

taken but the assessee was also supposed to signed the appeal paper and

therefore taking no steps or making no attempts thereafter, till the filing of

the appeal or till the alleged date in month of March, 2017 itself shows the

conduct of the assessee is casual or non serious towards the matters. When

the explanation of the assesssee is factually contrary to the facts on record

then it cannot be considered as a sufficient or cogent explanation for delay.

5.3 As per section 253(5) of the Act, the Tribunal may admit an appeal

after the expiry of period of limitation, if it is satisfied that there was sufficient

cause for not presenting it within that period. Thus, this provision permits

filing the appeal after the period of limitation subject to the satisfaction of the

Tribunal and the party seeking condonation of delay cannot claim it as a

matter of right. The provision of limitation has to be given effect with all its

vigour. Nevertheless, may harshly affect the particular party. The Hon’ble

Supreme Court in the case of Lachhman Das Arora V Ganeshi Lal (1999)

8 SCC 532 has observed as under:-

“There is no gain saying that the law of limitation may harshly effect a particular party but it has to be applied with all its vigour when the statute so prescribed. The courts cannot extent the period of limitation on equitable grounds.”

5.4 The averments of the application of condonation of delay as well as

affidavits of the assessee do not make out a case of sufficient cause for delay

12 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur. of 191 days in filing the present appeal. The explanation furnished by the

assessee do not inspire confidence and satisfaction as it is found to be

contradictory to the facts on records and the assessee has not explained the

reasons to our satisfaction about the contradiction between the explanation

and other facts on records. Accordingly, in view of the above facts and

circumstances of the case, we are of the considered opinion that the assessee

has failed to explain the reasonable cause much less a sufficient cause for not

filing the appeal within the period of limitation. Hence, we decline to Condon

the delay of 191 days in filing the appeal. The appeal of the assessee is

deserve dismissal being barred by limitation. Since the appeal of the assessee

is dismissed being barred by limitation therefore, we do not propose to go

into the grounds raised by assessee in the present appeal.

Order pronounced in the open court on 07/02/2018. Sd/- Sd/- ¼Hkkxpan ½ ¼fot; iky jko½ (Bhagchand) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 07/02/2018. Pooja/- आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Rajesh Jasotani, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward 1(1), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत.

13 ITA No. 286/JP/2017. Shri Rajesh Jasotani, Jaipur. 6. xkMZ QkbZy@ Guard File [ITA No. 286/JP/2017] vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत