RAJAVEL ASSOCIATES,CHENNAI vs. ITO, MADURAI

आदेश / O R D E R

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER

The appeal filed by the assessee is directed against an order

dated 22.01.2014 of ld. Commissioner of Income Tax (Appeals)-I,

Madurai.

The appeal has been filed with a delay of 534 days. 2.

Condonation petition filed by the assessee is on record. What is stated

in the condonation petition reads as under:-

ITA No. 2017/CHNY/2015. :- 2 -:

‘’I am the Managing Partner of Appellant/petitioner Firm and I am fully acquainted with the facts of the case leading to and relating to the present petition. 2. I have filed the above appeal against the order of the Commissioner Of Income (Appeals)-1, Madurai dated 22.01.2015. The said appellate order was received on 08.02.2015. In normal course the appeal should have been filed by 9.04.2015 but . however the appeal was filed on 25.09.2015 with a delay of 167 days.

3 I submit that order of the learned Commissioner of Income-Tax, Madurai dated 22.01.2015 was passed ex-parte and the same was received by my office 08.02.2015. The Firms Income Tax matters were handled and attended by our previous Auditor, Shri. SMuthiah. As soon as we received the said order was handed over to our Auditor Shri.S.Muthiah for necessary action. Further the firm seized to exist in the year 2008 and the erstwhile partners were not traceable. I am illiterate and did not know the intricacies of tax law. I was under the bonafide belief that my auditor was taking. appropriate step in seeking necessary legal and appellate redressal against the aforesaid order. My Auditor Shn S.Muthiah passed away on 2.03.2015. While this be so I received a notice under section 221 of the Income Tax Act for recovery of demand. contacted my present auditor immediately and handed over the recovery notice for necessary action On enquiry, thereafter, I was informed that no appeal was filed against the order passed by the first appellate order and that the order of the first appellate authority was misplaced. it was only than I realized the mistake that no appeal was filed against the order of the first appellate authority. Thereafter I traced out my paper from the office of my erstwhile Chartered Account, who was no more. It took some time for me to gather the papers. 4.The Order of the learned Commissioner which was misplaced could be traced only on 21 09.2015 Thereafter I contacted the Counsel immediately and got the appeal papers ready and filed the same before the Hon'ble Tribunal on 25.09.2015. I was unable to file the appeal papers in due time despite best of my efforts but however filed the same with a delay of 167 day. The delay is neither willful nor wanton but due to the aforesaid circumstance. i filed the appeal only on 25.09.2015. Hence there was a delay in filing the

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appeal. 5. It is therefore prayed that the Hon'ble Tribunal may be pleased to condone the delay of 167 days in filing the appeal before the Income Tax Appellate Tribunal and render justice’’.

Ld. Counsel of the assessee seeking condonation of the delay

submitted that the earlier Auditor of the assessee had expired on

02.03.2015. According to him, assessee was illiterate and was not

aware about order of the ld. Commissioner of Income Tax (Appeals)

till, the notice for recovery u/s.221 of the Income Tax Act, was

received.

Strongly opposing the condonation petition, ld. Departmental 3.

Representative submitted that ld. Commissioner of Income Tax

(Appeals) had passed the assessment order on 22.01.2014. According

to him, previous Auditor of the assessee expired only on 02.03.2015.

Hence, as per the ld. Departmental Representative , this could not be

a good reason for condoning such a huge delay. Further, as per the

ld. Departmental Representative, even before the ld. Commissioner of

Income Tax (Appeals), assessee never entered appearance, despite

giving twelve adjournments. Ld. Departmental Representative also

placed reliance on the judgment of Hon’ble Jurisdictional High Court in

the case of Inderchand D. Kochi etc vs. ACIT, (T.C. Appeals Nos. 522,

523, 507, 508 and 509 of 2016, dated 03.08.2016).

ITA No. 2017/CHNY/2015. :- 4 -:

orders of the authorities below. Para 3 of the ld. Commissioner of

Income Tax (Appeals) order is reproduced hereunder:-

‘’3. Aggrieved by the order, this appeal is filed. The case was posted for hearing on 12 occasions 26.10.2009, 15.06.2010, 15.09.2010, 07.10.2010, 10.08.2011, 29.08.201, ·16.02.2012, 21.08.2012, 07.05.2013, 23.10.2013, 27.11.2013 & 22.01.20·14: On all the occasions either Assessee had not appeared and continuously sought adjournment. Therefore, it is presumed that Assessee is not interested in pursuing the appeal and hence the appeal is decided on merits based on the grounds of appeal. The additions are discussed on one by one’’.

It is clear that ld. Commissioner of Income Tax (Appeals) had given

the assessee more than sufficient opportunity to represents its case.

Assessee having sought adjournments was aware about the dates of

hearing fixed by the ld. Commissioner of Income Tax (Appeals).

Hence, ld. Commissioner of Income Tax (Appeals) was constrained to

decide the issue on merits and had partly allowed the appeal of the

assessee, despite assessee not entering appearance. Assessee was a

person doing civil contract business and had filed its return for the

impugned assessment year disclosing income of �1,72,970/-.

Assessee had made payments to the tune of �95,65,000/- to its sub-

contractors without making any deduction of tax at source. By its own

admission its Authorised Representative, C.A. S. Muthiah, had expired

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only on 02.03.2015. Appellate order was passed by the ld.

Commissioner of Income Tax (Appeals) on 22.01.2014. There was

more than one year available to the assessee, before the expiry of CA

S. Muthiah, for filing an appeal before this Tribunal. There is nothing

in the affidavit which explains this delay. Assessee being a firm cannot

say it was illiterate. Hon’ble Jurisdictional High Court in the case of

Inderchand D. Kochar (supra) in a case were similar delay was not

considered, had quoted from the judgment of Hon’ble Apex Court in

the case of Esha Battacharje Vs. Raghumathpur Nafar Academy,

(2013) 12 SSC 64, as under:-

‘’21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weight the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach’’. That apart there are so many anomalies and misleading statements in

the affidavit. It is stated therein that the order of ld. Commissioner of

Income Tax (Appeals) was dated 22.01.2015 and received by the

assessee on 08.02.2015, whereas the appeal memorandum clearly

indicate such order to have been passed on 22.01.2014 and received

by the assessee on 08.02.2014. Condonation is sought for 167 days,

ITA No. 2017/CHNY/2015. :- 6 -: whereas actual delay is 534 days. In our opinion there is nothing which is coming out from the affidavit which could show any reasonable ground for condoning the delay. We are not inclined to condone the delay.

In the result, the appeal of the assessee stands dismissed. 5.

Order pronounced on Thursday, the 5th day of April, 2018, at Chennai.

Sd/- Sd/- (एन.आर.एस. गणेशन)) (अ�ाहम पी. जॉज�) (N.R.S. GANESAN) (ABRAHAM P. GEORGE) लेखा सद�य/ACCOUNTANT MEMBER �या�यक सद�य/JUDICIAL MEMBER चे�नई/Chennai �दनांक/Dated: 5th April, 2018. KV आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 3. आयकर आयु�त (अपील)/CIT(A) 5. �वभागीय ��त�न�ध/DR 2. ��यथ�/Respondent 4. आयकर आयु�त/CIT 6. गाड� फाईल/GF