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Income Tax Appellate Tribunal, B/“SMC” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
1. This appeal is filed by the assessee , aggrieved by the order of the Learned Commissioner of Income Tax(A)-13, Chennai dated 29.03.2016 pertaining to assessment year 2010-11.
The assessee has raised the following grounds for adjudication.
The Order of the Assessing Officer is contrary to the law, facts and circumstances of the case and in any case violative of the principles of equity and natural justice.
2. The Assessing Officer erred in framing the assessment under u/s. 143(3) in which he had ignored the fact that the Books of Accounts are Audited under section 44AB of the Income Tax Act, but he had arbitrarily adopted the Difference in Gross Profit Percentages as taxable income, without even rejecting the books of accounts.
3. The Assessing Officer erred in adopting the Difference in Gross Profit Percentages as taxable income without considering the changed circumstances in the business environment.
4. The Assessing Officer also erred in not stating any specific reason for adopting a Deemed Difference in the Gross Profit Percentage, given the fact that the Business of the Appellant is merely steel trading and the margins cannot be fluctuating year over year.
At the outset, it was noticed that there was a delay of 342 days in filing the appeal before this Tribunal. The assessee filed an affidavit for condonation of delay stating that the appeal of assessee to be filed on or before 20.06.2016, but actually filed on 29.03.2017.
It was submitted in the condonation petition that due to various family and business reasons, he had totally shifted his living to Mumbai and because of which he was totally unaware of the fact. Further, the assessee submitted that the petitioner’s Counsel who had filed the Appeal before the Commissioner of Income Tax (Appeals) - 13, Chennai was G.Sunil Kumar & Co Chartered Accountants.
Subsequently, the assessee due to various family and business reasons had totally shifted his living to Mumbai because of which he was totally unaware of the fact that the Appeal came up for hearing.
Only after the Ex-Parte disposal of the appeal by the Commissioner of Income Tax (Appeals) the assessee had approached and sought professional guidance and help to draft the appeal and represent before this Honourable Tribunal after having been acquainted of this fact that the Appeal has been dismissed since there is No Response.
This process had consequently resulted in a delay of 342 days in filing the appeal. It was under these circumstances that there is a delay of 342 days in filing the appeal before this Honourable Tribunal.
According to him, due to this reason, the assessee failed to file the appeal in time before us i.e. 20.06.2016 and caused delay of 342 days in filing the appeal before this Tribunal for which an application u/s.5 of the Limitation Act is being filed along with this Affidavit.
Further, it was submitted that the said delay is neither willful nor wanton but due to the bonafide reasons stated above.
On the other hand, ld.D.R submitted that there is no valid reason for condonation of delay as the reasons advanced by the assessee in its condonation petition are very vague and it was too general.
After hearing both the parties and perusing the material on record, I am of the opinion that the impugned order of Ld.CIT(A) was said to be served on 21.04.2016 and it was also noticed that the assessee has given address for servicing of order of Ld.CIT(A) at No.54, Sembudos street, Mannady, Chennai-1 and there was no allegation that the said order was not served to the assessee. The only contention of the assessee is that the assessee has moved from Chennai to Mumbai. However, the assessee has not brought on record any evidence to show the assessee is permanently settled in Mumbai by way of producing any evidence like Voters Card, Adhar Card, Ration Card, Bank account, Driving license, Passport or Children School Certificate etc. Being so, the assessee’s Counsel made a bald statement that the assessee shifted his residence to Mumbai, which is not born out of any record. Further, the assessee’s Counsel submitted that a copy of notice u/s.274 of the Act issued to the assessee at Mumbai address on 19.12.2016 to show that the assessee is permanently residing in Mumbai, even presuming that the assessee is permanently residing at Mumbai, it would not take 342 days to file the appeal before this Tribunal.
5.1 In this case, the delay of 342 days in filing the appeal before this Tribunal is very inordinate delay, it cannot be condoned on simple reason that the case 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 cause within the contemplation of the limitation provisions 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. in AIR 1961 (SC)
361 has held that the cause for the delay in filing the appeal, 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 or inaction, or want of bonafides can be imputed to the appellant, a liberal construction of the provisions has to be made in order to advance substantial justice.
5.2 In the present case, the assessee justified the delay only with reference to the Affidavit by the assessee stating that the assessee shifted his residence from Chennai to Mumbai without placing any evidence of his domicile. This reason advanced by the assessee cannot be considered as good and sufficient reason to condone the delay. The reasons advanced by the assessee really shows that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the delay by exercising of due care and attention. In my opinion, there exists no sufficient and good reason for delay of filing the appeal by 342 days.
Therefore, I am of the opinion that this kind of delay does not warrant condonation, since the assessee has not shown valid reasons cause for filing the appeal belatedly by such inordinate delay of 342 days. Accordingly, this appeal of assessee stands dismissed.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 22nd June, 2017.