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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SHRI PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : BANGALORE
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No. 1264/Bang/2015 Assessment Year : 2009-10
Smt. Jaya Nagaraja, #19, Sumeru, NTI Layout, The Income Tax RMV 2nd Stage, Officer, vs. Opp: High Colony, 1st Main, Ward – 14 (2), Bangalore – 560 094. Bangalore. PAN: ACDPN4778R APPELLANT RESPONDENT
Appellant by : Shri Ravishankar, Advocate Respondent by : Shri Vikas K. Suryawanshi, Addl. CIT (DR)
Date of hearing : 29.01.2019 Date of Pronouncement : 30.01.2019
O R D E R Per Shri Chandra Poojari, Accountant Member
This appeal by assessee is directed against the order of ld. CIT(A) dated 24.07.2015.
The assessee has raised the following grounds. “1. The order of the CIT (A) in so far as it is against the appellant is opposed to law, equity, and weight of evidence, probabilities, facts and circumstances of the case. 2. The appellant denies herself liable to be assessed at Rs. 40,64,650/- against the declared total income of Rs.5,74,371/- on the facts and circumstances of the case. 3. The learned CIT(A) was not justified in not condoning the delay for filing the appeal, which was due to reasonable cause of wrong professional advise and thereby erred in dismissing the appeal on the facts and circumstances of the case.
ITA No. 1264/Bang/2015 Page 2 of 5 4. The learned CIT(A) was not justified in confirming the disallowance of claim under section 54F of the Act amounting to Rs.33,93,175/-when the appellant has furnished the necessary property documents and building plans during the time of assessment proceedings on the facts and circumstances of the case. 5. The learned CIT(A) was not justified in confirming the addition of Rs.1,13,760/-, when the appellant had already declared interest amount of Rs.16,655/- and the balance of Rs.91,105/-( 87,182/+3,927/- +5,996/-) was interest pertaining to family members credited to the savings bank account of the appellant and interest of the previous assessment year credited during the current year, but offered to tax in the previous assessment year on the facts and circumstances of the case. 6. Without prejudice to the right to seek waiver with the Hon'ble Chief Commissioner of Income Tax/Director General of Income Tax, the Appellant denies herself liable to be charged to interest under sections 234A, 234B, 234C and 234D of the Act which under the facts and circumstances of the case deserves to be cancelled. The calculation of interest under section 234A, 234B, 234C and 234D is not in accordance with law as the rate, amount and method for calculating interest is not discernible from the order of assessment. 7. The appellant craves leave to add, alter, modify, delete or substitute any or all of the grounds and to file a paper book at the time of hearing the appeal. 8. In view of the above and other grounds that may be taken at the time of the hearing the appeal, the appellant prays that the appeal be allowed in the interest of justice and equity.”
There was a delay of two days in filing this appeal. It was explained by ld. AR that due to inadvertent error the appeal was filed belatedly. Considering this short delay of two days we are inclined to condone it and admit it for adjudication. Before us the ld. AR not pressed ground no. 4 to that effect ld. AR made an endorsement.
At the outset, it was noticed that there was a delay of 183 days in filing the appeal before CIT(A). The assessee is raised ground no. 3 that CIT(A) was not justified in condoning the delay for filing the appeal, which was due to reasonable cause of wrong professional advise and thereby CIT(A) ought to have admitted the appeal.
ITA No. 1264/Bang/2015 Page 3 of 5 5. Facts of this issue are that the Assessing Officer passed the order u/s. 143(3) on 29.12.2011 which was served on the assessee on 06.01.2012. As per the provisions of IT Act, 1961 the assessee ought to have filed the appeal before CIT(A) within 30 days from the date of the receipt of the order of assessment i.e. the assessee must have filed the appeal on or before 05.02.2012. It was pleaded before CIT(A) that due to wrong professional advise the assessee did not challenge the order of assessment within the limitation period as provided in the provisions of IT Act, 1961. Thus there was a delay of 183 days in filing the appeal before CIT(A). Before CIT(A), the assessee requested the CIT(A) to condone the delay and admit the appeal for adjudication. The CIT(A) observed that the reason given for delay in filing the appeal were not attributable to any reasons. According to him the assessee has not explained the delay with proper evidence. He dismissed the appeal without condoning the delay. Now before us the ld. AR submitted that this bench shall exercise the discretion for the purpose of advancing substantial justice and the assessee was given improper advise by professionals and there was a good and sufficient reason to file the appeal by delay of 183 days before CIT(A). He prayed that liberal view to be taken by this Tribunal as the delay was only for a short period of 183 days.
On the other hand, the ld. DR submitted that assessee has not explained the delay with sufficient evidence so as to condone the delay. According to ld. DR, there is no good sufficient reason to condone the delay. He relied on the order of CIT(A).
We have heard both the parties and perused the material on record. Admittedly there was a delay of 183 days in filing the appeal before CIT(A). It was stated by ld. AR before us that the delay was due to wrong professional advise issued to the assessee. It was also submitted that the assessee was of the opinion that AO would not levy penalty u/s. 271 (1)(c) of IT Act. Thus, the assessee did not challenge the order of the assessment passed by the AO before CIT(A). Further it was not properly guided by professional advise. Since the Assessing Officer invoked the penalty proceedings u/s. 271 (1) (c) of IT Act, it was decided by assessee to file the appeal before CIT(A) challenging the quantum addition. This submission of the assessee is not supported by any
ITA No. 1264/Bang/2015 Page 4 of 5 evidence like correspondence with the AO regarding his promise not to levy penalty u/s. 271 (1) (c) of IT Act. On the other hand, it was noticed that the Assessing Officer himself mentioned initiation of penalty proceedings in the assessment order dated 29.12.2011 as follows: “Penalty proceedings u/s 271 (1) (c) of the income tax Act-1961 are initiated separately on the issues discussed above.”
The above noting by the AO itself shows that the assessee was well aware of invoking of penalty proceedings u/s. 271(1)(c) of the Act by AO on completion of the assessment.
Regarding the improper advise by the professionals the assessee has not placed any details of person who has advised incorrectly, even the assessee not mentioned the name of the consultant who has advised the assessee not to file the appeal against the assessment order. In such situation, it is not possible to us to condone the delay of 183 days in filing the appeal before CIT(A). In our considered opinion law assists those who are vigilant, not those who sleep over their rights. The delay of 183 days cannot be condoned simply because the assessee’s case is hard and called 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 assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause 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 cause for the delay in filing the appeal before CIT(A), which by due care and attention could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bonafides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. In the instant case, the assessee explained the delay only with reference to the improper advise by professionals and promise by AO not to invoke the penalty provisions of the Act. However, these submissions are not supported by any supporting evidence that clearly showed that the delay was due to the negligence and inaction on the part of the assessee. Hence, we are not in a position to exercise any discretion so as to
ITA No. 1264/Bang/2015 Page 5 of 5 condone the delay of 183 days in filing the appeal before CIT(A). Accordingly, we are inclined to hold that dismissal of appeal by CIT(A) on the reason of delay is justified. Since we have upheld the dismissal of appeal by CIT(A) without condoning the delay we are refrained from going into other grounds of appeal raised by assessee.
In the result, the appeal filed by the assessee is dismissed.
Pronounced in the open court on this 30th day of January, 2019.
Sd/- Sd/- (PAVAN KUMAR GADALE) (CHANDRA POOJARI) Judicial Member Accountant Member Bangalore, Dated, the 30th January, 2019. /MS/ Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order
Assistant Registrar, Income Tax Appellate Tribunal, Bangalore.