M/S AJAY KUMAR SOOD & ENGINEERS & CONTRACTORS,SHIMLA vs. DCIT, CC-II, CHANDIGARH

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ITA 83/CHANDI/2018Status: DisposedITAT Chandigarh06 May 2019AY 2011-123 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the initial filing of a consolidated appeal within the due date demonstrated a bonafide mistake. Condoning the delay was deemed appropriate given the pragmatic approach to such matters and the lack of prejudice to the revenue.

What were the facts?

The assessee filed a consolidated appeal against two penalty orders. Realizing this was impermissible, a separate appeal was filed for the penalty under Section 271AAA, which was significantly delayed. The CIT(A) dismissed the appeal due to the delay, citing ignorance of law as an insufficient reason.

What were the issues?

Whether the delay in filing a separate appeal against a penalty order, after initially filing a consolidated appeal, can be condoned on the grounds of a bonafide mistake.

Which sections of the Income-tax Act were involved?

Section 271AAA,Section 271(1)(c)

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Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, CHANDIGARH BENCH “A”, CHANDIGARH

Before: Sh. SANJAY GARG & DR. B.R.R. KUMAR

For Appellant: Shri. Sudhir Sehgal
For Respondent: Smt. Chandrakanta, Sr. DR
Hearing: 28/02/2019Pronounced: 06/05/2019

आदेश/Order

PER DR. B.R.R. KUMAR, A.M: The present appeal has been filed by the Assessee against the order of the Ld. CiT(A)-3, Gurgaon dt. 03/11/2017.

2.

In the present appeal Assessee has raised the following grounds:

1.

That the Ld. Commissioner of Income Tax (Appeals) has erred in not entertaining the appeal of the assessee on account of delay in filing the appeal.

2.

That the Ld. CIT(A) has erred in not condoning the delay in filing the appeal, which was due to bonafide reason.

3.

That the submissions made during the course of hearing before the Ld. CIT(A) with regard to delay have not been considered properly.

4.

That the Appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off.

3.

Brief facts of the case are that a search and seizure was conducted on 08.10.2010. The income tax return was filed on 28.03.2012 declaring income of Rs. 90,05,810/-. Assessment was completed by assessing the income at Rs.

4,30,65,183/- vide order dated 28.03.2013 and the Assessing Officer initiated penalty under section 271AAA of the Act on the amount surrendered of Rs. 1.75 crores.

3.1 Thereafter, vide his penalty order date 27.03.2015, the Assessing Officer levied penalty amounting to Rs. 17,50,000/- (10% of the surrendered income of Rs. 1.75 crores).

3.2 Simultaneously, the Assessing Officer levied penalty under section 271(1)(c) of the Act vide his order dated 27.03.2015.

3.3 Against the said two orders, the assessee, filed a consolidated appeal before the CIT(A) i.e. a single appeal was filed against two penalty orders on 21.04.2013. The said appeal was filed within the 30 days of passing the order. Afterwards, the assessee realized the fact that filing a single appeal against two penalty orders passed under two different sections is not permissible as per law. The appellant then filed a separate appeal against the order passed under section 271AAA. The said appeal was filed on 17/02/2017 which is late by 639 days.

4.

The CIT(A)dismissed the appeal of the appellant on the ground that ignorance of law is not a ground to condone the delay. The Ld. CIT(A) relied on the judgment in the case of India Gospel Fellowhsip Trust 331 ITR 283 (Mad) for this proposition. Relying on Rankak and others Vs. Rewa Coalfields Ltd. AIR 1962 SC 361 and also on the judgment of Hon’ble Madras High Court in case of Madhur Dadha Vs. ACIT (Mad) 317 IR 458, the Ld. CIT(A) held that condonation is not the matter of right and Court has to exercise the discretionary jurisdiction.

5.

We have gone through the facts of the record. It’s a matter of public knowledge and belief that there is only assessment for one year and one penalty order for one assessment year is generally the norms. Penalty under section 271AAA has been brought in as a special provision under the Income Tax Act,1961. In the instant case the assessee has filed appeal against the penalty order under section 271AAA before the Ld. CIT(A), however, it was tagged along with the appeal against the penalty under section 271(1)(c). This clearly goes to prove that there was an appeal filed within the due date. Yet, the technicalities have been infracted upon which can be clearly considerable as a bonafide mistake. Condonation of delay is a subjective issue and is to be viewed in the facts each case. In general, the several Courts have held that the

approach towards condonation of delay has to be pragmatic and liberal and not pedantic. Keeping in view the above facts it cannot be said that the assessee has accrued any benefit by filing the appeal late, the same time revenue is not prejudiced if the case is considered on merits instead of dismissing on hyper-technicalities. Reliance is placed on the judgement of Hon’ble Punjab & Haryana High Court in the case of Manoj Ahuja (Minor) & Anr Vs. IAC in 150 ITR 0696, and SMC Capitals Ltd. New Delhi, in ITA No.1342/Del/2010. Hence, we here by direct that the delay may be condoned and appeal be heard on the merits of the case as per the provisions of the Income Tax Act,1961.

6.

In the result, appeal of the assessee is allowed.

Sd/- Sd/- संजय गग� डा. बी.आर.आर, कुमार, (SANJAY GARG ) ( DR. B.R.R. KUMAR) �या�यक सद�य/ Judicial Member लेखा सद�य/ Accountant Member AG Date: 06/05/2019

आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to :

1.

The Appellant , 2 The Respondent , 3. CIT, 4. The CIT(A), 5. DR, ITAT, CHANDIGARH, 6. Guard File

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