KISHORE NANWANI,PUDUCHERRY vs. ITO WARD I(1), PUDUCHERRY

आदेश / O R D E R

PER RAMIT KOCHAR, ACCOUNTANT MEMBER:

The assessee has filed this appeal before the Income Tax Appellate Tribunal, Chennai Benches, Chennai (hereinafter called “ the tribunal”) challenging the appellate order passed by learned Commissioner of

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Income Tax (Appeals)-Puducherry ( hereinafter called “the CIT(A)” ), in

ITA No.109/CIT(A)-PDY/2015-16 dated 13.02.2017 for assessment year

(ay) 2008-09. The appellate proceedings had arisen before learned CIT(A)

from assessment order dated 30.09.2014 passed by learned Assessing

Officer( hereinafter called “ the AO”) u/s 143(3) read with Section 147 of

the Income-tax Act 1961( hereinafter called “the Act”) .The assessee has

filed this appeal late by 340 days with the tribunal beyond the time

prescribed by Section 253(3) of the 1961 Act, for which the assessee has

sought for condonation of aforesaid delay of 340 days in filing this appeal

before the tribunal by filing an affidavit dated 19.10.2019, which is re-

produced hereunder:

“BEFORE THE INCOME TAX APPELLATE TRIBUNAL CHENNAI ‘C’ BENCH I.T.A. No. 955/CHNY/2018 (Assessment Year: 2008-09) Mr. Kishore Nanwani PAN: AEKPN5787R … Petitioner/Appellant

I, Kishore Nanwani, Son of Late Shri Chatharam, Hindu, aged about 53 years residing at Nos. 44 - 46, J.N.Street, Puducherry - 605 001 do hereby solemnly and sincerely affirm and state as follows:

I am the Appellant/Petitioner herein and am well acquainted with the facts relating to the belated filing of the above appeal relating to the assessment year 2008-09 before the Jurisdictional Bench of the Income Tax Appellate Tribunal competent to swear to this affidavit.

I state that the appeal challenging the order of the CIT(Appeals) dated 13.02.2017 in dismissing the appeal filed against the re-assessment order dated 30.09.2014 on the technical ground without adjudicating the issues on merits and the delay in filing the belated appeal was neither willful nor deliberate but due to the circumstances beyond my control, justifying my plea for the admission of the appeal for adjudication of the issues on merits relating to the correctness of the decision rendered by the CIT(Appeals) in dismissing the appeal as time barred by limitation.

I state that the delay of 340 days in fling the appeal was due to the misplacement of the order and I state that the said order was received and misplaced while I faced complex problems from all fronts. I state that the action taken by the TRO in bringing the residential property for auction in the month of March 2018 triggered the process of scrutiny of my income tax records and inasmuch as I state that the appointment of new Chartered Accountant who conducted due diligence of my income tax files pointed out the non filing of the appeal against the impugned order of the CIT(Appeals) dated 13.02.2017 in sustaining the re-assessment order for the assessment year under consideration in not entertaining the first appeal before him on the ground of limitation.

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I state that immediately steps were taken for filing the appeal before the Jurisdictional Bench of the Income Tax Appellate Tribunal through the counsel on record and the appeal under consideration was filed belatedly on 20.03.2018 for which the plea of condonation of delay in filing the said appeal is substantiated through this affidavit.

I state that the mistake committed due to my family problems and drastic complications faced in the business/profession pursued by me by not appointing a professional for challenging unreasonable dismissal of the appeal in not condoning the small delay in filing the first appeal as well as the erroneous computation of taxable total income in the re- assessment order on various facets should be reckoned as bonafide explanation and acceptable as reasonable cause for admission of the appeal.

In such circumstances, the delay of 340 days in filing the appeal relating to the assessment year 2008-09 may be condoned for adjudication of the issues on merits arising from the order of the CIT(Appeals) at Pondicherry dated 13.02.2017 in I.T.A.No. 109/CIT(A)- PDY/2015-16 and thus render justice.

Solemnly and sincerely affirmed at Pondicherry this the 19th day of BEFORE ME October, 2019 and signed his name in my presence

sd/- ADVOCATE: Pondicherry

SIGNED BEFORE ME SD/- K.ILANGOVAN, B.A., B.L. 31,School St., Govinda Salai PUDUCHERRY-605011 CELL:xxxxxxxxxx Regd. No. 7150/2008”

Ld.Counsel for the assessee fairly informed the Bench that even before the

Ld.CIT(A), the assessee has filed the first appeal with delay of 416 days

beyond the time stipulated u/s 249(2) of the 1961 Act. The Assessment

Order dated 30.09.2014 passed by the AO u/s.143(3) r.w.s.147 was

admittedly received by the assessee on 30.09.2014 as per Form No. 35

filed by the assessee with learned CIT(A) and as per assessee’s own

version, the assessee should have filed this appeal before Ld.CIT(A) latest

by 30.10.2014 but the assessee filed an appeal before Ld.CIT(A) only on

21.12.2015, with a delay of 416 days beyond time stipulated u/s 249(2)

of the 1961 Act. The assessee was not able to demonstrate sufficient

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cause for filing first appeal with delay of 416 days before learned CIT(A)

which led to dismissal of his appeal by learned CIT(A) on this short ground

as learned CIT(A) refused to condone aforesaid delay u/s. 249(3) of the

1961 Act , vide appellate order dated 13.02.2017 passed by learned

CIT(A). Even after getting a major set back vide dismissal of his appeal

by learned CIT(A), still the assessee has not woken up to his rights and

chosen to be defiant as second appeal before tribunal was filed u/s

253(1) of the 1961 Act with a delay of 340 days beyond the time

stipulated u/s 253(3) of the 1961 Act. The assessee vide its own

admission in Form No 36 has received appellate order passed by learned

CIT(A) on 13.02.2017 , while appeal is filed with tribunal only on

20.03.2018 with a delay of 340 days beyond time prescribed u/s 253(3) of

the 1961 Act. It is only when the proceedings for auction of assessee’s

residential property was started by learned Tax Recovery Officer , that the

assessee woke up and filed its appeal with the tribunal. Thus, various

notices etc which department had issued in the intervening period prior to

starting auction proceedings by learned TRO did not gave wake up call to

the assessee. The order of the AO was passed on 30.09.2014 while appeal

with tribunal was filed on 20.03.2018, thus this intervening period of three

and half years wherein demand was remaining outstanding against the

assessee was not sufficient for the assessee to remain vigilant as to his

rights and duties. We have observed that the affidavit filed by the

assessee dated 19.10.2019 with tribunal did not state any bonafide and

sufficient cause which could inspire confidence in us to invoke our powers

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u/s 253(5) of the 1961 Act to condone this delay in filing of the appeal by

the assessee with tribunal with delay of 340 days beyond the time

stipulated u/s 253(3) of the 1961 Act. The main reason for filing this

appeal late as stated by assessee in his affidavit is that the assessee

received the appellate order passed by learned CIT(A) but misplaced it.

The assessee is a business man and engaged in retail trade in garments.

The assessee was surveyed by department u/s 133A of the 1961 Act on

13.12.2010 and it revealed during survey proceedings that the assessee

was having several bank accounts which were not declared to Revenue.

The assessee was representing by a qualified chartered accountant Mr. T.

Pothi Madhavan before learned CIT(A) and the assessee now could not

claim that he was not aware of the statutory provisions as are enshrined

in the 1961 Act . The Courts will assist only those who are vigilant of their

rights and not those who sleep over their rights. The instant case before

us clearly shows that the assessee is not vigilant about his rights, a

litigant has to be vigilant about his rights and the assessee took this

matter in a very casual and lackluster manner. We are fully aware that

when technicalities are pitted against substantial justice , the Courts will

lean towards substantial justice but it is equally important for assessee to

demonstrate his bonafide and demonstrate sufficient cause for this

substantial delay of 340 days in filing this appeal late beyond limitation

period prescribed u/s 253(3) of the 1961 Act. In our considered view, the

assessee has failed to demonstrate his bonafide and sufficient cause in

filing this appeal late by 340 days and we do not find any merit in

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admitting this appeal which is delayed by 340 days as we refuse to condone the delay of 340 days in filing this appeal late by assessee beyond time prescribed u/s 253(3) of the 1961 Act and dismiss this appeal filed by assessee. We order accordingly.

Order pronounced in open court on the conclusion of the hearing on the 22nd October, 2019 in Chennai.

Sd/- Sd/- (जॉज� माथन) (र#मत कोचर) (GEORGE MATHAN) (RAMIT KOCHAR) �या�यक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER चे�नई/Chennai, 1दनांक/Dated:22nd October, 2019. TLN आदेश क, *�त#ल2प अ3े2षत/Copy to: 1. अपीलाथ)/Appellant 4. आयकर आयु4त/CIT 5. 2वभागीय *�त�न�ध/DR 2. *+यथ)/Respondent 6. गाड� फाईल/GF 3. आयकर आयु4त (अपील)/CIT(A)