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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B” , HYDERABAD
Before: SHRI LALIET KUMAR, HON’BLE & SHRI MADHUSUDAN SAWDIA, HON’BLE
O R D E R Per Bench :
These appeals are filed by the assessee, feeling aggrieved by the orders passed by the Commissioner of Income Tax (Appeals) [Ld.CIT(A)], National Faceless Appeal Centre, Delhi dated 26.07.2023, 28.07.2023, 27.07.2023 for the AYs. 2011-12 to 2015-16. Since the grounds raised in these appeals are Elite Infraprojects Private Ltd. identical in nature, these appeals are clubbed, heard together and are being disposed of by this consolidated order.
The brief facts of the case are that assessee is a private limited company engaged in the business of executing civil infrastructure projects. For the assessment year 2011-12, assessee filed its return of income on 30-09-2011 declaring total income of Rs. 66,76,949/- under the normal provisions of the Act and total income of Rs. 94,38,700/- under the provisions of section 115JB of the Act and later filed a revised return on 01- 10-2011 declaring total income of Rs. 66,76,949/- and with total tax payable of Rs. 16,24,560/-. The return was processed u/s 143(1) of the Income tax Act, 1961 raising a total demand of Rs. 16,84,166/-. The directors of the company were not aware that the return of income was filed with tax payable of Rs. 16,24,560/-. The TDS credit claimed in the return of income is incorrect. The credit for the tax deducted at source was only claimed to the extent it is appearing in Form 26AS. For the services provided by the company during the year, the recipients of services have paid the amounts to the assessee after deducting tax at source in accordance with the provisions of Income tax Act, 1961. The directors of the assessee company came to know
Elite Infraprojects Private Ltd. that the return of income was filed with the tax payable of Rs. 16,24,560/- only after initiation of prosecution proceedings on the directors u/s 279(1) of the Act.
Aggrieved with the intimation order passed u/s 143(1) of the Act dated 24.01.2012 assessee filed appeal before the LD.CIT(A).
Aggrieved with such intimation order dt.24.01.2012, assessee preferred appeal on 05.02.2022 i.e., after ten years from the date of intimation order. As the assessee failed to explain the reasons for not filing the appeal for such a prolonged period of 10 years, the Ld. CIT(A) dismissed the appeal by holding as under :
“6.2 I have considered the appellant's explanation on the delay in filing the present appeal. As per the prescribed time limit, the appellant is required to file his/her appeal in the stipulated time and the appellant has failed to do so. As per the records available the assessment in the appellant's case was completed on 24/01/2012 and the appellant was required to file his/her appeal against the assessment order u/s 143 (1) of the Act within the time period ending 22/02/2012.
6.3 The appellant did not file his appeal in the prescribed time limit and filed his appeal on 05/02/2022 with the delay of almost 10 years. As per the explanation the appellant did not file the appeal within the time limit because the Director of the company was not informed by his CA that the return of income was filed with a tax payable. The delay due to non communication between the CA and the Director is an internal matter of the Company and cannot be a reasonable cause for not filing appeal in time. The appellant failed to file a genuine reason for delay in filing the present appeal and there is a delay of almost 10 years therefore, the appeal filed by the appellant is not condoned and the appeal is not admitted.
6.4 It is noteworthy that five other appeals for various AYs were also filed online with a delay of 3 to 7 years without any reasonable explanation being offered for the same. The appellant has also failed to comply with various notices issued by the AO for AY 2011-12 to 2014- 15 without any reasonable explanation being offered.
6.5 Appeal of the appellant is dismissed as defective not filed within the time limit prescribed by the IT Act 1961.”
Before us, the ld.AR submitted that the assessee had given their income tax related works to C.A. and other Professional and they did not inform the assessee that return of income was filed and tax to be paid. Further, the assessee submitted that they had some persisting business litigations also. The ld.AR also submitted that the delay was explained in the list of dates given by the assessee running into 7 pages, which shows the conduct of the assessee, that it was vigilant. The details of the events occurred between 2012 to 2022 as given by the ld.AR for the assessee, reproduced as under :
List of events from 2012 to 2023 S.No. Date Particulars Page Numbers Letter sent by the company to ARSS Infrastructures for payment of the invoices raised 01-02 1 10-07-2012 Letter written by the company to ARSS Infrastructures that , work is not being executed during monsoon season 2 04-10-2012 3 Email sent by ARSS Infrastructures regarding. review meeting for non completion of works 3 13-10-2012 4 Reply by the company for the issues at ARSS Infrastructures Company 4 14-10-2012 05-09
Letter sent by ARSS Infrastructure for the improvement of the roads at two projects 5 17-10-2012 10-11 Submission by the company for the letter issued by ARSS Infrastructure 6 23-10-2012 I 2-15 Letter from ARSS Infrastructure Projects Limited for termination of portion of work for non completion of work within the stipulated time lines 7 20-11-2012 16-18 Letter sent by company requesting to invoke the termination of project 8 22-11-2012 19-22 Letter by .ARS Infrastructure Projects for revised action plan for completion of two projects 9 30-11-2012 23-24 10 03-12-2012 Letter by comp.my stating readiness for the project completion 25-28 Letter by company stating non cooperation of ARSS Infrastructure for supply of materials initially agreed 11 12-12-2012 29-32 12 14-12-2012 Termination of Contract by ARSS Infrastructure 33-34 Letter by company to give opportunity to explain the situation/position 13 18-12-2012 35-38 14 16-01-2013 invocation of bank guarantee by ARSS Infrastructure 39-40 , .• Registered notice sent by the company to ARSS Infrastructure for termination of contracts and non payment of outstanding dues by advocate. 15 23-01-2013 41-44 _ Letter by Canara bank to Elite EntefpriSe4 OF P4Yinein of monthly interest to avoid NPA 16 19-06-2014 45 Letter from Canara bank to Elite Enterprises for closure of 17 10-07-2014 account by paying liability 46 Notice under section 13(2) of SARFESI Act, 2002 to BNR Infra & Leasing by Canara Bank 47-50 18 21-07-2014 Submission of response by BNR Infra & Leasing to the notice under section 13(2) and requesting for some time for clearing 19 23-07-2014 dues 51 Letter by Canara bank to Elite Enterprises for non payment of monthly interest of September and October 52 20 01-11-2014
Letter by Elite Enterprises stating that the projects could not 53 happen due to local issues and due to rainy season 21 12-11-2014 Recall notice by Canara Bank to Elite Enterprises stating that the account slipped to NPA 22 10-05-2015 54 Letter by Canara Bank to Elite Enterprises stating that they are proceeding under SARFAESI Act, 2002 55 23 25-05-2015 Submission by Elite Enterprises stating that they cannot beforced to close loan as they are regularly paying interest and the stocks are available for verification 24 26-05-2015 56-57
Notice under 13(2) of SARFESI Act issued to Elite Enterprises by Canara Bank 25 28-05-2015 58-61 62 26 30-05-2015 Irregular conduct of loan accounts by BNR Infra and Leasing 27 22-06-2015 Letter from SBI to make payments to regularise the accounts 63 Request letter by Elite Enterprises to Canara Bank for withdrawal of notice issued u/s 13(2) 28 10-07-2015 64-66 Letter by Canara bank to Elite Enterprises for non payment of dues 29 21-08-2015 67 Notice from SBI u/s 13(2) of SARFESI Act 2002 to Elite 30 28-09-2015 Enterprises 68-71 Letter by Elite Enterprises requesting to withdraw notice under section , I 3(2) of SARFESI Act, 2002 31 03-1 1-20 15 72-73 Further reply submitted requesting to keep the collection on hold till the bills are released by Elite Enterprises 32 17-11-2015 74 Possession notice for immovable property issued by SBI under SARFESI Act to NR Infra and Leasing. 33 30-12-2015 75-76 Notice to borrower for public display of names and photographs by SBI with respect to the dues of BNR Infra and Leasing 77 34 05-01-2016 , Notice prior to sale by SRI with respect to dues of BNR Infra and Leasing, publication of possession notice in Andhra Jyothi and New Indian Express 35 06-01-2016 78-79 Notice issued u/s 13(4) of SARFESI Act for recovery of the assets by Canara Bank for outstanding dues payable of Elite 36 21-01-2016 Enterprises 80 Auction notice issued by Canara Bank with respect to the dues of Elite Enterprises 37 21-01-2016 81-83 Demand notice under section 13(2) of SARFESI Act by Bank of Maharashtra in case of company 38 21-03-2016 84-86 Recall notice from Andhra Bank for payment of dues and installments of BNR Infra and Leasing 39 24-03-2016 87 Notice under section 13(2) of SARFESI Act, 2002 to BNR Infra & Leasing by Andhra Bank 40 02-04-2016 88-89 41 06-04-2016 Seizure of vehicle of BNR Infra and Leasing by SBI 90 Demand notice under section 13(2) of SARFESI Act by Bank of -12 21-04-2016 Maharashtra in case of company 91-93 Letter for sale of the vehicle if the dues are not paid by SBI 43 06-05-2016 relating to the vehicle seized 94 Letter submitted for withdrawal of 13(2) notice by BNR 44 09-05-2016 Leasing and Infra to Andhra Bank . 95 Letter filed for release of the vehicle by accepting the overdue 45 17-05-2016 EMIs by BNR Infra and Leasing to SBI 96-97
Legal notice issued by advocate of SBI to BNR Infra and Leasing for the loans availed 46 30-05-2016 98-99 Letter submitted by company for regularization and 47 14-06-2016 withdrawal of notice issued by Bank of Maharashtra 100 Letter submitted by company to Bank of Maharashtra requesting for three months time and explaining the delay in the realization of the amounts 48 20-06-2016 101-104 Letter by BNR Infra to SBI for substitution of the new property for the properties given as collateral if required 49 17-08-2016 105-106 E-Auction sale notice paper publication in Eenadu and Hindu dated 11-09-2016 by SBI relating to the dues of BNR infra and 50 12-09-2016 Leasing .. 107-108 Submission of restructuring proposal by the company to Bank of 51 14-09-2016 Maharashtra 109 Summons issued for the debts of Canara Bank by Debt 52 26-09-2016 Recovery Tribunal to Elite Enterprises 110 Paper notice for e-auction of the property of BNR Infra and 53 27-10-2016 Leasing in Eenadu by S131 111
Letter for release of security for sale of properties for settling 54 08-11-2016 dues to Andhra Bank relating to BNR Infra and Leasing . 112-113 Submission of restructuring proposal by the company to Bank of Maharashtra 55 09-12-2016 114 Request letter for restructuring of existing loan accounts to 56 16-12-2016 Bank of Maharashtra by the company 115-116 _ Demand notice by Andhra Bank relating to DNR infra and 57 09-01-2017 Leasing for payment of overdue amounts 117 Request letter for restructuring of accounts by the company 58 17-01-2017 to Bank of Maharashtra 118-119 Submission by BNR Infra and Leasing for sale of properties 59 25-01-2017 for settlement of dues 120 Notice u/s 13(4) in case of Elite Enterprises by Canara Bank 60 31-01-2017 121 Notice u/s 13(2) in case of BNR Infra and Leasing by 61 01-02-2017 Andhra Bank 122-123 Request letter for restructuring of accounts by the company 62 21-02-2017 to Bank of Maharashtra after handover of property 124-125 documents Enforcement of security interest action notice by Union Bank 63 02-03-2017 of India in case of the company 126-127 Submission by Elite Enterprises to Canara Bank requesting for one time settlement 64 09-03-2017 128 Intimation for possession of properties by Bank of 65 04-04-2017 Maharashtra in case of company 129-130
Writ petition filed before High Court relating to the 66 20-04-2017 possession of properties by Bank of Maharashtra in case of 131-134 company , 67 01-07-2017 Notice under sect on 13(2) by Andhra Bank for enforcement 135-136 of security interest in case of BNR Infra and Leasing Notice under section 13(2) by Andhra Bank for enforcement of security interest in case of BNR Infra and Leasing 68 01-07-2017 137-138 Notice under section 13(2) by Andhra Bank for enforcement 69 07-09-2017 of security interest in case of B Narasimha Reddy 139-140 Summons issued for the debts of Bank of Maharashtra by 70 08-09-2017 Debt Recovery Tribunal to Elite Infra Projects Private 14 I Limited Reply by Canara Bank for the OTS request placed in Elite 71 10-10-2017 Enterprises : 142 Letter from Bank of Maharashtra classifying account as NPA 72 06-11-2017 in case of company 143-144 Permission to dispose off the properties offered as security to 73 08-01-2018 Andhra Bank in case of BNR Infra and Leasing 145 Order passed by Debt Recovery Tribunal, Hyderabad 74 12-04-2018 relating to the dues pay4ble,to Corporation Bak in case of 146 company Notice to Borrower issued informing about sale - 30 days 75 08-06-2018 notice for security enforcement by Andhra Bank in the case 147-148 of BNR Infra and Leasing Demand notice for payment of outstanding dues by Andhra 76 28-06-2018 Bank in case of BNR Infra and Leasing 149 E-auction sale notice by Andhra Bank in case of BNR Infra 77 19-07-2018 and Leasing 150-152 Caveat petition filed before Debt Recovery Tribunal under 78 21-07-2018 section 18(c ) of SARFESI Act by Andhra Bank relating to 153-157 BNR Infra and Leasing Petition filed under 148A of CPC before High Court by 79 21-07-2018 Andhra Bank relating to BNR Infra and Leasing 158-163 Summons by Debt Recovery Tribunal relating to the dues 80 28-07-2018 payable to Andhra Bank in the case of BNR Infra and 164-165 Leasing Letter written by the company to SREI Equipment Finance 81 07-08-2018 Ltd for the settlement of loans 166 Letter by Bank of Maharashtra for the submission made by 82 29-08-2018 the company on 04-01-2018 asking to pay dues in case of 167-168 company Notice to borrower informing about sale by Andhra Bank 83 29-09-2018 relating to BNR Infra and Leasing 169-170 E-Auction sale notice in the case of Andhra Bank relating to 84 12-11-2018 BNR Infra and Leasing 171-173 Notice to borrower informing about sale by Andhra Bank 85 10-12-2018 relating to BNR Infra and Leasing 174-175 E-Auction sale notice in the case of Andhra Bank relating to 86 22-01-2019 BNR Infra and Leasing 176-178
Letter from recovery officer of DRT Tribunal for payment of 87 08-07-2019 outstanding dues relating to BNR Infra and Leasing 179 Conciliation Notice issued by Advocate for settlement of 88 26-08-2019 dues relating to the Sit El Equipment Finance to the company 180-Is1 Letter relating to the outstandings relating to Volvo Hydraulic Excavator EC and Volvo Soil Compactor by SREI 89 03-10-2019 182-184 Equipment Finance to the company Summons for settlement of issues relating to Andhra Bank in 90 13-12-2019 case of BNR Infra and Leasing before City Civil Court 185 Letter from Advocates of SREI Equipment Finance Ltd for 91 18-06-2020 payment of outstanding demand 186-187 Request for one time settlement by BNR Infra and Leasing to 92 12-03-2021 SB1 188-189 Demand notice for recovery of debts of Andhra Bank in the 93 15-03-2022 case of BNR Infra and Leasing before Debt Recovery 190-191 Tribunal Demand notice for recovery of debts of Andhra Bank in the 94 26-05-2022 case of BNR Infra and Leasing before Debt Recovery 192-193 Tribunal 5.1. In view of the above, the ld.AR submitted that the delay in filing of the appeals may kindly be condoned.
On the other hand, Ld.DR submitted that the explanation given by the assessee is flimsy and no legs to stand. Ld.DR further submitted that the assessee before LD.CIT(A) also contended with regard to similar delay. The Ld.DR also submitted that the assessee during assessment proceedings did not comply to any notices of learned Assessing Officer and all the assessment of the assessee were ex-parte. Hence, the assessee is persistently violating the provisions the Act. In view of these facts, the appeal of the assessee is required to be dismissed.
We have heard the rival submissions and perused the material available on record. On perusal of the record, we find that assessee has preferred appeal before the LD.CIT(A) and also before the Tribunal with inordinate delay. The details of the delay in filing of the appeals before us and before the LD.CIT(A) are as under :
before Delay before the Tribunal LD.CIT(A) 716/Hyd/2024 306 10 years 717/Hyd/2024 304 3 years 718/Hyd/2024 304 6 years 719/Hyd/2024 305 6 years 720/Hyd/2024 304 5 years 721/Hyd/2024 305 5 years 722/Hyd/2024 304 7 years
In our view, the delay in filing the appeal has not been explained either before the Ld.CIT(A) or before the Tribunal. The reasons given by the assessee do not inspire confidence and does not show any obstruction in filing the appeal before the Ld.CIT(A) or before the Tribunal. The law in this regard is already settled by the hon'ble Supreme Court, wherein the assessee is required to explain the delay caused for not filing the appeals with valid and plausible reasons. However, all the reasons given by the assessee does not inspire confidence that it was prevented by any plausible and valid reason before the LD.CIT(A) or before us. The explanation given by the assessee is contrary and does not inspire any confidence. The affidavit explaining the delay is evasive and vague in nature and cannot be accepted for condonation of the delay in filing the appeal.
It is appropriate to quote at this stage the legal maxim “VIGILANTIBUS, NON. DORMIENTIBUS, JURA SUBVENIUNT” which means, law will help only those who are vigilant. Law will not assist those who are careless of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Thus, law confers rights on persons who are vigilant of their rights. The assessee could not demonstrate the reasons for non-appearance before the lower authorities as well as before this Tribunal and the reasons stated in the affidavit filed by the assessee are not reasonable one to condone the huge delay caused in filing the appeals by the assessee. In the absence of the same, the reasons given by the assessee is not convincing and therefore the delay of 10 years or similar days in other appeals in filing the above appeal before the LD.CIT(A) and delay of more than 300 days before the Tribunal cannot be condoned.
We further find that on identical set of facts, the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ramkumar Choudhary in SLP No.48636 of 2024 dated 29.11.2024 has decided that the whenever there is a plea for condonation of delay be it at the instance of private litigant or State, the delay is sought to be explained right from the time, the limitation starts. In the present case, the entire delay in filing of the appeal has not been properly explained by the assessee. The relevant portion of the order in the above said case, is to the following effect :
“6. At the same time, we cannot simply brush aside the delay occurred in preferring the second appeal, due to callous and lackadaisical attitude on the part of the officials functioning in the State machinery. Though the Government adopts systematic approach in handling the legal issues and preferring the petitions/ applications/ appeals well within the time, due to the fault on the part of the officials in merely communicating the information on time, huge revenue loss will be caused to the Government exchequer. The present case is one such case, wherein, enormous delay of 1788 days occasioned in preferring the second appeal due to the lapses on the part of the officials functioning under the State, though valuable Government lands were involved. Therefore, we direct the State to streamline the machinery touching the legal issues, offering legal opinion, filing of cases before the Tribunal / Courts, etc., fix the responsibility on the officer(s) concerned, and penalize the officer(s), who is/are responsible for delay, deviation, lapses, etc., if any, to the value of the loss caused to the Government. Such direction will have to be followed by all the States scrupulously.
There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See: Ajit Singh Thakur Singh and Another v. State of Gujarat, AIR 1981 SC 733).
Accordingly, we dismiss this Special Leave Petition with costs of Rs.1,00,000/- to be deposited by the State within a period of two weeks from today with the Supreme Court Mediation Centre and file proof thereof. If the said amount, as directed, is not deposited by the State, the Registry shall take necessary steps for recovery of the same, in accordance with law.
Therefore, respectfully, following the decision in the case of State of Madhya Pradesh Vs. Ramkumar Choudhary (supra), the petition for condoning the delay caused in filing the appeals are hereby dismissed. Accordingly, the appeals of the assessee are dismissed.
In the result, all the appeals of the assessee are dismissed.
Order pronounced in the open court on 9th December, 2024. Sd/- Sd/- (MADHUSUDAN SAWDIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, dated 09.12.2024. L.Rama, SPS