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Income Tax Appellate Tribunal, ‘B’ BENCH, PUNE
Consolidated Appeals (20)
2 ITA No. 1213 to 1233/PUN/2019 Sopan G. Lanke group
PER BENCH :
These bunch of 21 appeals filed by the assessee, emenates originally out of orders passed u/s 272A(2)(k)/274 r.w.s. 200(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) passed by the Addl. CIT(TDS) Pune, for various assessment years as appearing in the aforestated cause title.
At the time of hearing, none appeared for the assessee. The submissions of the ld. D.R are recorded and the cases were heard on merits based on the relevant records. Since the issues involved are identical, these appeals are being disposed of by this consolidated order.
That for the sake of narration of facts taking the assessment year 2011- 12 in ITA No. 1213/PUN/2019 as the lead case, the appeals have been filed contesting the levy of penalty of Rs. 56,800/- and Rs. 47,800/- u/s 272A(2)(k)/274 r.w.s. 200(3) of the Act. The assessee had filed TDS return u/s 200(3) in form No. 26Q for the first and second quarter for the F.Y. 2010-11 on 03-02-2012 under Rule 31A of the Income-tax Rules, 1962. The due dates for filing of the same were 15-7-2010 and 15-10-2010 respectively. The A.O calculated the delay in filing the returns of 568 days and 476 days for the first and second quarter respectively. Notices u/s 272A(2)(k) r.w.s. 200(3) of the Act were issued by the Addl. CIT to the assessee on 6-9-2012 and 5-11-2012 respectively to explain on 4-10-2012 and 29-11-2012 as to why penalty under the aforestated section should not be levied. However, none appeared. The A.O therefore, found default in filing the returns without sufficient cause and hence referring to the provisions of sec. 272A(2)(k) of the Act has levied penalty of Rs. 56,800/- for delay of 568 days @ Rs. 100/- per day for first quarter and Rs. 47,600/- for delay of 476 days @ Rs. 100/- per day for second quarter. Aggrieved with these orders, the assessee filed appeals before the ld. CIT(A).
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We observe that on perusal of the ld. CIT(A)‟s order at para 4 wherein, he has given a categorical finding that the order u/s 272A(2)(k) of the Addl. CIT TDS Pune was served on the assessee on 17-10-2012 (first quarter) and 13- 12-2012 (second quarter) . These appeals should have been filed before the CIT(A) within 30 days from the date of service of the order i.e. latest by 16-11- 2012 and 12-01-2013 respectively. However, these appeals were filed on 17- 04-2018. Thus, there has been a delay of 1978 days and 1921 days in filing of the appeals. The assessee had filed a condonation letter before the ld. CIT(A) explaining why the delay should be condoned and the same has been reproduced in the order of the ld. CIT(A) on record. That after careful consideration of the submissions made by the assessee and the orders passed by the Addl. CIT TDS, the ld. CIT(A) has given a categorical and specific finding as to why the delay should not be condoned in case of the assessee for late filing of these appeals. That as evident from para 4.1 of the CIT(A)‟s order, the assessee while stating the reasons for such delay has put-forth the financial losses and ill-health as the major causes due to which the appeal could not be filed within stipulated time. Some supporting documents like copy of FIR and medical certificates were also filed before the ld. CIT(A). That on going through the copy of the FIR it was found out that although the assessee claimed financial losses during the year 2010 and 2011, yet, the FIR was filed only on 25-9-2013 and 02-02-2019 only. Also the medical certificate indicates that the assessee was ill during the period F.Y. 2015-16 relevant to A.Y. 2016-17 which does not cover the period under consideration. Further, it was examined and held by the ld. CIT(A) that from materials available on record, the business activity of the assessee were on-going even after financial losses caused to him in 2010-11 and also during the period and after the period 2015-16 in which the assessee has claimed to be unwell. This fact further becomes crystal clear from the TDS returns filed by the assessee. It was observed by the ld. CIT(A) that if
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due to the reasons as put forth by the assessee while requesting condonation of delay in filing these appeals, the assessee was not able to look after his business activities, then even the day-to-day activities and eventually the filing of TDS returns would also have been hampered. However, this is not the case here since the pre-requisite of filing TDS returns has been met with and it is only when the demand was enforced on the assessee that he took recourse of filing the appeal before the ld. CIT(A). The ld. CIT(A) further held that the assessee has been continuously involved in his business activities over the years and hence the reasons given by him cannot be construed to be as genuine in as far as the delay of filing is concerned since all the other activities have been regularly taken up by the assessee. Thereafter, the ld. CIT(A) relied on various case-laws and decisions vis-a-vis the facts and circumstances of the assessee and accordingly rejected the condonation petition of the assessee for admission of these appeals and they were dismissed.
We find that in a quasi-judicial proceedings the bonafide assessee has to be protected and the delay, if any, happens and if the assessee is able to prove that such delay was due to sufficient or reasonable cause, in such scenario, the delay has to be condoned. However, in the instant case before us, in respect to the facts of the lead year i.e. A.Y. 2011-12 there has been a delay of almost 6 ½ years in filing the appeal before the ld. CIT(A). The assessee has submitted reasons of financial losses caused to him and his ill- health. Here also we find that the ld. CIT(A) has given a finding that these financial losses pertained to the year 2010-11 whereas FIRs were filed only on 25-9-2013 and 02-02-2019. Therefore, where is the question of genuineness? Even the medical certificates indicate that the assessee was ill during F.Y. 2015-16 relevant to A.Y. 2016-17 which obviously does not cover the present period of A.Y. 2011-12. The most important observation of the ld. CIT(A) on examination of facts is that even after all these hardships that was faced by the
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assessee, as stated by him, he was able to look after his regular business activities and filing of TDS returns etc. There has been a continuous business activities carried out by the assessee over the years and we agree with the ld. CIT(A) that when the assessee was able to perform all regular activities of doing business, filing of TDS returns, then, there is no sufficient and genuine cause why he delayed in filing of these appeals for more than 6 ½ years. In the submission of the assessee for condonation of delay, we do not find any just and cogent reasons for such condonation. The facts and circumstances suggest that the assessee deliberately failed to file the appeals on time and rather was negligent in following the period of limitation for filing of these appeals. He has not been able to bring forth in his condonation petition any sufficient or reasonable cause for creating such a huge delay of 6 ½ years in filing of these appeals. The law of limitation for filing of the appeals before appropriate forum cannot be taken lightly. The intention of legislature for mentioning the period of limitation is that there has to be speedy disposal of the cases and within certain period of time. One cannot expect to have his own free-will for filing appeal before a particular forum making the process of litigation a continuous phenomena. Here, the assessee says that he has suffered financial losses in 2010-11 and he filed FIR only in 2013 and 2019. The assessee says he was ill but during the period relevant to A.Y. 2016-17. Furthermore, he was conducting his regular business activities in an on-going manner even after financial losses caused to him in 2010-11 and also during and after the period F.Y. 2015-16 in which the assessee had claimed to be unwell. When the assessee was able to take care of his business even after these reasons which he has narrated for condonation of delay, then he should have even taken care of time limit prescribed for filing the appeals before the first appellate authority. We observe from the perusal of records that the assessee bears casual attitude regarding process of law. He evaded
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appearance before the A.O and even before us, there was no compliances of hearing notices by him irrespective of due service of notice to the assessee in the given registered address. The ld. D.R placed strong reliance on the order of the CIT(A) and supported it vehemently for not condoning the delay in filing of the appeal by the assessee and also submitted a chart showing the number of days‟ of delay for various years as mentioned therein. He submitted that on an average there has been a delay of about 900 days and more in filing the appeals before the first appellate authority. The relevant chart is extracted as follows as a part of this order.
S. Name of the Appellant AY Delay in No days 1 ITA 1213 PUN 2019 SOPAN GAHINAJI LANKE 2011-12 1978 (26Q-Q1) 2 ITA 1214 PUN 2019 SOPAN GAHINAJI LANKE 2011-12 1921 (26Q-Q2) 3 ITA 1215 PUN 2019 SOPAN GAHINAJI LANKE 2013-14 1475 (24Q-Q4) 4 ITA 1216 PUN 2019 SOPAN GAHINAJI LANKE 2014-15 1004 (24Q-Q4) 5 ITA 1217 PUN 2019 SOPAN GAHINAJI LANKE 2014-15 1133 (26Q-Q1) 6 ITA 1218 PUN 2019 SOPAN GAHINAJI LANKE 2014-15 1129 (26Q-Q2) 7 ITA 1219 PUN 2019 SOPAN GAHINAJI LANKE 2014-15 1151 (26Q-Q3) 8 ITA 1220 PUN 2019 SOPAN GAHINAJI LANKE 2014-15 1151 (26Q-Q4) 9 ITA 1221 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (24Q-Q1) 10 ITA 1222 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (24Q-Q2) 11 ITA 1223 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (24Q-Q3) 12 ITA 1224 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (24Q-Q4) 13 ITA 1225 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (26Q-Q1) 14 ITA 1226 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (26Q-Q2) 15 ITA 1227 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 779 (26Q-Q3) 16 ITA 1228 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (26Q-Q3) 17 ITA 1229 PUN 2019 SOPAN GAHINAJI LANKE 2015-16 914 (26Q-Q4) 18 ITA 1230 PUN 2019 SOPAN GAHINAJI LANKE 2016-17 779 (24Q-Q4) 19 ITA 1231 PUN 2019 SOPAN GAHINAJI LANKE 2016-17 656
7 ITA No. 1213 to 1233/PUN/2019 Sopan G. Lanke group
(26Q-Q1) 20 ITA 1232 PUN 2019 SOPAN GAHINAJI LANKE 2016-17 656 (26Q-Q2) 21 ITA 1233 PUN 2019 SOPAN GAHINAJI LANKE 2016-17 656 (26Q-Q4)
We find Hon‟ble Madras High Court in the case of S.R. Vediappan Vs. S.P. Ramalingam, order dated 11-02-2020 has very meticulously observed and held deliberating on the law of limitation that such law of limitation being a substantive law has to be followed and the appeals which are to be filed within a time limit has to be strictly adhered to. Filing of an appeal within a period of limitation is the Rule and the condonation of delay is an exception. Thus, while condoning the delay Courts must be cautious and only on genuine and cogent reasons the Courts are empowered to condone the delay. The reasons furnished for condonation of delay must be candid and convincing. Therefore, the condonation of delay cannot be claimed as a matter of right and only on genuine reasons the delay has to be condoned and not otherwise. In the instant case, the assessee has failed to bring out any genuine and convincing reasons for condonation of such huge delay. In view of the matter, considering the facts and circumstances of the case and the judicial pronouncements on the issue, we do not find any reason to interfere with the findings of the ld. CIT(A) and the same is upheld. The appeal of the assessee in ITA No. 1213/PUN/2019 for A.Y. 2011-12 is dismissed.
At the very outset, it has been observed that the facts and circumstances being similar and identical in other cases also, and on the same parity of reasoning, we hold that our decision in ITA No. 1213/PUN/2019 for A.Y. 2011- 12 shall apply “mutatis mutandis” to ITA No. 1214 to 1233/PUN/2019 for
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various assessment years as set forth in the cause title hereinabove. As a result, these appeals of the assessee are also dismissed.
In the combined result, all the appeals of the assessee are dismissed.
Order pronounced in the open Court on this 21st day of April, 2022
Sd/- sd/- (R.S. SYAL) (PARTHA SARATHI CHAUDHURY) VICE PRESIDENT JUDICIAL MEMBER Pune; Dated, the 21st April, 2022 Ankam
Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The Pr. CCIT, Pune 4. The CIT(A)-10, Pune 5. D.R. ITAT „B‟ Bench 5. Guard File BY ORDER,
/// TRUE COPY/// Sr. Private Secretary ITAT, Pune.
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1 Draft dictated on 20-04-2022 Sr.PS/PS 2 Draft placed before author 21-04-2022 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr. Sr.PS/PS PS/PS 6 Kept for pronouncement on 21-04-2022 Sr.PS/PS 7 Date of uploading of order 21-04-2022 Sr.PS/PS 8 File sent to Bench Clerk 21-04-2022 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order