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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SH. H.S. SIDHU & SH. O.P. KANT
ORDER PER O.P. KANT, A.M.: This appeal by the assessee is directed against order dated 30/10/2012 of learned Commissioner of Income Tax, Hisar, passed under section 263 of the Income Tax Act, 1961 (in short “the Act”) for assessment year 2006-07, raising following grounds:
“1. That the order of the Ld. CIT is against law and facts. 2. That the Ld. CIT erred in invoking Sec. 263 of the I.T. Act and cancelling the assessment order passed by the Ld. AO u/s 143(3) and directing him to make fresh assessment, although neither the order of Ld. AO was erroneous nor prejudicial to the interest of revenue.
3. That the Ld. CIT erred in invoking Sec. 263 of the Act, although the matter was pending before Ld. CIT(A), Rohtak and it is settled law that the matter which is pending before CIT(A) cannot be considered by CIT in Revision proceedings.
4. That the Ld. CIT erred in giving directions u/s 263 of the Act to the Ld. AO, although all the issues were duly considered by the Ld. Assessing Officer during assessment proceedings and after examining all the documents/submissions, one of the possible view was taken:- (a) Ld. CIT erred in holding that the Ld. AO erroneously accepted source of Rs. 1064000/-, Rs. 600000/- and Rs. 200000/- without proper verification. (b) Ld. CIT erred in holding that it is failure on the part of Ld. AO to accept the source of Rs. 400000/- without proper examination. (c) Ld. CIT erred in holding that the Ld. AO has failed to examine the taxability of amount of Rs. 400000/- received from forfeiture of advance from sale of property. (d) Ld. CIT erred in holding that the Ld. AO has failed in proper examination of source of payment of Rs. 195575/- for purchase of property. (e) Ld. CIT erred in holding that the Ld. AO failed to properly examine the issue of possibility of joint purchaser of the property Sh. Jagbir Singh as benami of the assessee.” 2. At the outset, the learned Commissioner of Income Tax (Departmental Representative), submitted that appeal has been filed with delay of 480 days from the due date of filing of appeal and the application filed for condonation of delay is without sufficient cause and, therefore, the delay might not be condoned and appeal might be rejected.
On the other hand, the learned Authorised Representative of the assessee submitted that the assessee filed an application for condonation of the delay of 480 days along with affidavit stating the reasons for delay. It was submitted by the learned Authorised Representative that the assessee was not aware of the provisions of Income Tax Act and was not apprised by the Income Tax Authorities about his right to appeal particularly when he was not represented by the counsel. Accordingly, he submitted that delay in filing appeal might be condoned. In support thereof the learned Authorized Representative relied on the decision of the of the Tribunal (third member) in the case of People Education & Economic Development Society (Peeds) Vs. Income Tax Officer reported in 100 ITD 87 (Chennai).
We have heard the rival submission on the issue of condonation of the delay in filing the appeal. We find that the Registry pointed out the delay of 480 days in filing the appeal and accordingly defect notice was issued to the assessee on 11.11.2014. In response to the notice, the assessee filed a petition for condonation of the delay on 29th Nov., 2014. The contents of the said application are reproduced as under:
1) That Applicant/Appellant was assessed for assessment year 2006-07 vide order dated 26-03-2014 passed under sections 143(3)/144/147 r.w. S. 263 (1) of Income Tax Act, 1961 by Learned Income Tax Officer, Ward-2, Hisar. Sri Naveen C. Gupta Advocate, Rohtak was contacted for filing appeal against aforesaid assessment order before Learned Commissioner of Income Tax (Appeals), Rohtak. On meeting with Sri Naveen C. Gupta Advocate, he advised the Applicant/Appellant to file appeal 31-10-2012 passed under S. 263 of the Act by Learned Commissioner of Income Tax, Hisar in Income Tax Appellate Tribunal, New Delhi. Following the advice of counsel appeal against aforesaid order of Learned Commissioner of Income Tax was immediately filed on 29- 04-2014 in Income Tax Appellate Tribunal, New Delhi. 2) That there is delay of 480 days in filing appeal: i. Because the Applicant/Appellant was not aware of provisions of Income Tax Act and consequences of order passed under S.263 of the Act by Learned Commissioner of Income Tax, Hisar. ii. Because Learned Commissioner of Income Tax, Hisar at no stage apprised the Applicant/Appellant relating to his right of appeal against adverse order passed under S. 263 of the Act particularly when during proceedings under S. 263 of the Act Applicant/Appellant was not represented by a counsel. iii. Because assessment proceedings were joined by the Applicant/Appellant in order to co-operate with Income Tax Department and even Learned Income Tax Officer has not apprised Applicant/Appellant relating to his right of appeal against adverse order passed under S. 263 of the Act by Learned Commissioner of Income Tax, Hisar. 3) That the delay in filing of appeal is unintentional, bona fide and that in the aforesaid circumstances Applicant/Appellant was prevented by sufficient cause in not filing appeal against adverse order passed under S.263 of the Act by Learned Commissioner of Income Tax, Hisar, within limitation period.
We find that primarily the assessee has expressed ignorance about the provisions of law and no other sufficient cause for delay in filing the appeal has been submitted before us. In the case relied upon by the learned Authorised Representative of the assessee, the third member of the Tribunal has observed as under:
7. It is, therefore, not possible to presume, that assessee had full knowledge as to the remedy available. Various applications made before the CIT prove this fact. Assessee was prosecuting remedies under a wrong belief. This as per the decision of the jurisdictional High Court in the case of CIT vs. K.S.P. Shanmugavel Nadar (supra) constitutes a sufficient cause for filing the belated appeal. In view of this, there existed a reasonable cause in filing the belated appeal. I concur with the decision of the learned JM that in such circumstances to meet the ends of justice delay should be condoned.
Thus, we find that the Tribunal has condoned the delay on the ground that the assessee was prosecuting remedies under wrong belief, which was a reasonable cause for filing the belated appeal. But in the present case, we find from the para 2.4.2 of the impugned order that the assessee is an advocate himself. Further, according to the affidavit filed by the assessee along with the application for condonation of delay, the assessee participated in the assessment proceedings. The relevant part of the affidavit is reproduced as under: “That there is delay of 480 days in filling the appeal as stated in para no. 1 herein above: (i) …………………………….……………………………………………….. (ii) Because learned Commissioner of Income Tax, Hisar at no stage apprised me that I have a right of appeal against his adverse order particularly when I was not represented by a counsel, during proceedings before him.
(iii) Because I joined assessment proceedings before learned Income Tax Officer in order to co-operate with revenue department and even learned Income Tax Officer has not apprised me that I have a right of appeal against adverse order passed by learned Commissioner of Income Tax under section 263 of the Act.
The learned counsel of the assessee has not submitted any convincing reason for the delay in filing the appeal. The above facts and circumstances make it clear that the assessee, being an Advocate and participated in assessment proceedings, was aware of the Income Tax Law, but it is strange that simultaneously, he is taking the plea that he was not aware of the provisions of Income Tax Act in filing the appeal. The assessee cannot be allowed to take contradictory claims for substantiating delay in filing appeal.
In the case cited by the assessee, the assessee was prosecuting other remedies under wrong belief and therefore, the Tribunal has held that there existed a reasonable cause in filing belated appeal, however, in present case, the assessee has not brought on record any reasonable cause for the delay and simply submitted that on advice of Sh. Naveen C. Gupta, Advocate, he filed the appeal against the order passed under Section 263 of the Act by the learned Commissioner of Income Tax after delay of 480 days. The assessee, in present circumstances, appears to be guilty of negligence and did not take appropriate measures for filing appeal within the prescribed time period and now wants to take benefit of its own wrong doing. The courts have at times held that substantial justice should not be defeated by technicalities and liberal approach, has to be adopted while considering the application for condonation of the delay, but for accepting such a plea there, should exist some sufficient and reasonable cause, which is absent in the present case and, therefore, we are not inclined to condone the delay in filing application ignoring the law of limitation. Accordingly, application for condonation of delay is rejected and the appeal of the assessee is dismissed in limine holding the same as barred by limitation. 9. In the result, appeal of the assessee is dismissed in limine. The decision is pronounced in the open court on 22nd August, 2016.