BHARATKUMAR SOMABHAI PATEL,BANASHKANTHA vs. THE ITO, WARD-4, PALANPUR

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Ms. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member

ITA No. 389/Ahd/2020 Assessment Year 2007-08

Bharatkumar Somabhai The I.T.O., Ward-4, Patel Palanpur B/h. Maheshwari Wadi, Vs Opp. Ganj Road, (Respondent) Nava Bhildi, Banashkantha-385530 PAN: AEFPP7821R (Appellant) Appellant by : None Respondent by : Shri V.K. Singh, Sr. D.R. Date of hearing : 01-08-2022 Date of pronouncement : 19-10-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

This is an appeal filed by the Assessee against the order dated 28.01.2020 wherein the delay of 7 years and 2 months was not condoned by the Ld. CIT(A) as against the levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year (A.Y) 2007-08.

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3.1. As against the ex-parte order, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) afforded six opportunities, the assessee failed to response to the hearing notices, therefore the assessee appeal was dismissed vide order dated 28.10.2010. It is thereafter the Assessing Officer proceeded with the penalty

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proceeding and issued a show cause notice dated 08.12.2011 which was served upon the assessee on 14.12.2011 by RPAD. However the assessee again not responded to the show cause notice. Therefore with the available material on record, the A.O. levied a penalty of Rs. 17,47,340/- u/s. 271(1)(c) of the Act.

4.1, The Ld. CIT(A) held that the penalty order u/s. 271(1)(c) was passed by the A.O. on 06.02.2012. However the assessee filed the present appeal on 27.02.2019. Perusal of the facts on record and Form No. 35 filed by the assessee, it is noticed that the date of service of the penalty order is stated as 07.12.2012, but the appeal is filed on 27.02.2019 which is more than 7 years. Therefore the Ld. CIT(A) held as follows: 5.1. The application of the appellant regarding condonation of delay in filing the present appeal has been duly considered along with the facts of the case. The appeal has been filed late by more than seven (7) years and the reason given for filing delayed appeal is that the appellant is not much educated and the accountant did not made proper submissions or compliances in response to the said, notices and the Appellant was left totally unaware of the situation.

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The appellant has attributed the delay to the Accountant. However, it is pertinent to mention here that the appeal against the Assessment order was filed before the CIT(A) within the stipulated time on 29/12/2009 and the Appellate order by CIT(A) was passed on 28/01/2010, Therefore, it is not the case of the Appellant that, he was unaware of the ongoing income tax proceedings against, him. He had received the Assessment order in time and he filed the appeal against the impugned assessment order in time. He has also stated to have received the penalty order in time. He was therefore, aware of all the ongoing proceedings. Under the facts and circumstances of the case, I am of the considered opinion that the delay in filing appeal does not deserve to be condoned. 5.2 At this stage, it would be worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Ajit Singh Thakur Singh Vs. State of Gujarat, AIR 1981 SC 733, 73, where in the Hon'ble Supreme Court has made following important observations: "It is true that a party is entitled to until the day of limitation for filing an appeal, when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of event or circumstance arising before limitation expired it not to file the appeal within time. No event or circumstance arising after the expiry of limitation constitute such sufficient cause. There may be events of circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed be traced to a within the period limitation." In the instant case, filing of appeal is delayed by approx 7 years. Delay in filing the appeal can be condoned if there is a reasonable and sufficient cause, which prevented the appellant to file the appeal within the stipulated time. In the instant case, the appellant failed to show any sufficient reason, .which has prevented it to file the appeal within, stipulated time. Further, Hon'ble Apex Court in the case of Vedabai Alias Vaijayanatabai Baburao Patil Vs. Shantararn Baburao Patil, 253 ITR 798, has held as follows:- "In exercising discretion, under section 5 of the Limitation Act, the Court should adopt a programmatic approach. A distinction be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such case deserves a liberal approach.”

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IN THE SUPREME COURT OF INDIA: CIVIL APPEAL NOS. 9488 & 9489 OF 2019 (Arising out of SLP (Civil) Nos.5581 & 5582 of 2019) University of Delhi Versus Union of India & Ors, it was held: “Condonation of delay of 916 days: While a. liberal approach is to be taken in the matter of condonation of delay & the consideration does not depend art the status of the party, even so the condonation of long delay should not be automatic since the accrued right or adverse consequence to the opposite party is also to be kept in. perspective. While considering condonation of delay, routine explanation is not enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation (Mst Katiji 1987(2) SCC 1O7 distinguished)" "The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient case within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon’ble Supreme Court in the case of ramlal vs. Rewa Coalfields Ltd. AIR 1962 SC 36 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoid cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clear hands.” In a judgment in the case of DCIT (Ltu), New Delhi vs M/S Whirlpool Of India Ltd., on 8 December, ITA Nos. 2231, 2049/4788 & C.O. 432/Del, it was held as under: “It is well settled principle that ignorance of law is not excused and cannot be a ground to avoid tax liability. In view of the above discussion and judicial precedents, the prayer for condonation of delay is rejected in absence of sufficient cause for a delay of more than 7 years.

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legitimate reason on the part of the Appellant for delay in filing appeal u/s. 246A of the Income Tax Act, 1961. 2. The learned Commissioner of Income Tax (Appeals) - 4, Ahmedabad has erred in law and on facts of the case by not condoning the delay for filing the appeal by the Appellant and not allowing the grounds of appeals without properly considering the facts of the case. 3. The learned Commissioner of Income Tax (Appeals) - 4, Ahmedabad has erred in law and on facts of the case by holding that the Appellant has committed a default u/s. 271(l)(c), and accordingly, has levied penalty of Rs. 17,47,3407- u/s.271(l)(c) of the Income Tax Act, 1961. 3.1 Your Appellant submits that on the facts and in the circumstances of the case, it is established beyond doubt that the Appellant has not concealed any income nor has furnished any inaccurate particulars of income. 3.2 Your Appellant further submits that merely because name of one sundry creditor is wrongly reported by the auditor through oversight, no penalty u/s.271(1 )(c) can be levied. Further, the details viz. confirmation of balance, of sundry creditors were not furnished by the accountant about which the Appellant was unaware and therefore the same cannot be regarded as 'mens rea" on part of the Appellant. 4. Your Appellant, therefore humbly, begs to delete the penalty of Rs. 17,47,340/- levied u/s.271(l)(c) of the I.T. Act. 1961 which is levied on two additions, which also includes addition of same amount twice, made by the learned Assessing Officer in the assessment order.

5.1. None appeared on behalf of the assessee. It is seen from record that the assessee’s quantum appeal in ITA No. 331/Ahd/2019 the very same Bench of this Tribunal, wherein delay of 2985 days (8 years and 65 days) in filing the above appeal was dismissed as follows: 4. Aggrieved against the same, the assessee is in appeal before us filing the above appeal with a delay of 2985 days. Even before this Tribunal, 10 opportunities given to the assessee. The assessee is not responded to the hearing notices. The Affidavit filed by the assessee simply blames his Accountant Mr. Parshottambhai Rajgor. It is seen from the ex parte assessment order, the assessee along with his accountant once appeared before the Assessing Officer on 07.12.2009. But however not produced any documents or details which was called for by the Assessing Officer in his various notices issued u/s. 143(2) of the Act. It is further seen before

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the Ld. CIT(A) in spite of seven opportunities were given to the assessee, he has not appeared before the Ld. CIT(A) therefore the Ld. CIT(A) passed an ex parte order with available materials on records. 4.1. The present Affidavit filed by the assessee is without material on record and no reasonable cause was demonstrated by the assessee. As right from the assessment proceedings, the assessee seems to be not cooperative for the assessment proceedings and also before the ld. CIT(A), none appeared and before this Tribunal, none appeared on behalf of the assessee. A written submission dated 23.09.2021 field by the Authorized Representative. This is repetition of the affidavit filed by the assessee and relying upon the case laws of Hon’ble Supreme Court in the case of Collector Land Acquisition vs. Katiji & Others, 1987 AIR 1353 and in the case of N. Balakrishnan vs. M. Krishnamurthy, AIR 1998 SC 3222 (SC) and pleaded to condone the delay of 2985 days in filing the present appeal before the Tribunal. On merits of the case also, the assessee filed a written submission dated 23.09.2021 and enclosing a Paper Book consisting of copy of one page Audited Balance Sheet of M/s. Sai Krupa Agro Centre (Prop. Shri Bhavshkumar S. Patel). Similarly, in the case of Narmada Seeds Corporation and letter of Confirmation of balance by Narmada Seeds Corporation. The assessee could not explain before us the above documents are filed before any of the lower authorities, hence same cannot be entertained by us. 4.2. It is appropriate to quote at this stage the legal maxim “VIGILANTIBUS, NON. DORMIENTIBUS, JURA SUBVENIUNT” which means, law will help only those who are vigilant. Law will not assist those who are careless of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Thus law confers rights on persons who are vigilant of their rights. The assessee could not demonstrate the reasons for non appearance before the lower authorities as well as before this Tribunal and the reasons stated in the affidavit filed by the assessee is not reasonable cause to condone the huge delay of 2985 days in filing the appeal by the assessee. Further there is no supporting affidavit of the so called accountant Mr. Parashottambhai Rajgor who alleged to have not intimated the receipt of the assessment order, as well as the appellate order to the assessee. In the absence of the same, the reasons given by the assessee is not convincing and therefore the delay of 2985 days in filing the above appeal cannot be condoned. Therefore the appeal is not maintainable and dismissed as in limine.

5.2. Thus it is seen, the assessee habitually not interested in proceedings with the appeals filed before the various Appellate Forums.

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Order pronounced in the open court on -10-2022

(ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated /10/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद