FIVE VISION,MUMBAI vs. ACIT -33(1), MUMBAI

The present appeal has been preferred by the assessee against the order dated 24.12.2013 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10.

The assessee through its grounds of appeal has agitated the action of the Ld. CIT(A) in dismissing its appeal by holding that the same was barred by limitation.

None has come present on behalf of the assessee despite notice being sent.

We have gone through the grounds of appeal and are of the view that the appeal can be disposed of after hearing the Ld. D.R.

After going through the impugned order, we find that the appeal before the Ld. CIT(A) was also filed with a delay of seven months. We have also noted the reasons assigned by the assessee. It has been mentioned by the assessee that the impugned additions were made on the basis of unexplained/ non genuine purchases. It was submitted by the assessee before the Ld. CIT(A) that as advised by their Chartered Accountant/authorized representative, the assessee did not file any appeal against the said order of the Assessing Officer (hereinafter referred to as the AO). It has also been pleaded that the assessee was advised by their authorized representative that if the assessee would cooperate in the assessment proceedings, no penalty would be levied under section 271(1)(c) of the Act. However, when the assessee received penalty order under section 271(1)(c) of the Act then the assessee consulted some other senior counsel who advised the assessee to file appeal both against the quantum order and penalty order. The assessee had also placed before the Ld. CIT(A) an affidavit dated 18.08.12 of its authorized representative wherein said representative/Chartered Accountant deposed that he had advised the assessee not to file the appeal against the quantum additions because he was of the opinion that penalty under section 271(1)(c) would not be attracted if the assessee would cooperate with the department in the assessment proceedings and would not file appeal against the quantum additions. It had been further deposed in the said Chartered Accountant’s affidavit that he, even did not advice the assessee to file the appeal against the order passed by the AO under section 143(3) of the Act when the notice

The present appeal of the assessee before this Tribunal is also barred by limitation of 361 days. No application/affidavit for condonation of delay has been filed nor any reasons have been explained for the delay in filing the appeal. Even the assessee has also not responded to the defect memo/rectification notice issued by the registry on 18.03.15.

The above sequence of events clearly shows that the assessee was neither serious in prosecuting his appeal before the Ld. CIT(A) nor before this Tribunal. Even the reasons cited by the assessee before the CIT(A) for condonation of delay did not constitute sufficient cause justifying the condonation of the delay period by the CIT(A). In the affidavit the concerned Chartered Accountant/ authorized representative, it has been stated that he was getting feelers from the AO that the AO may waive the penalty under section 4 Mrs. Anuja K. Parikh 271(1)(c) of the Act if the assessee would cooperate in the assessment proceedings and did not contest the same in appeal. It has also been deposed by him that he advised the assessee not to carry the matter in appeal under the belief that in doing so, the penalty under section 271(1)(c) would not be attracted. He even did not advise the assessee to file the appeal even though the notice initiating the penalty under section 271(1)(c) was also served on the assessee along with order under section 143(3) of the Act. The above contentions of the said authorized representative thus were self contradictory. His belief that penalty would not be levied under section 271(1)(c) was already got cleared/controverted on the date of receipt of the notice for initiating the penalty; still, he did not advise the assessee to file the appeal against the order passed by the AO passed under section 143(3) of the Act. From the pleadings of the assessee it clearly reveals that in fact the assessee was not aggrieved by the quantum additions rather the assessee was aggrieved on account of levy of penalty that is way the assessee had chosen not to file the appeal against the quantum additions. If on a subsequent occasion some senior counsel advised the assessee to file the appeal, that cannot be a sufficient cause for condonation of delay. We are surprised rather shocked to see that the concerned Chartered Accountant has deposed in the affidavit that he was getting feelers from the AO that the AO would not levy penalty if the assessee would not contest the quantum additions and that it was he who advised the assessee not to file the appeal, even, after receipt of notice regarding the initiation of penalty the proceedings under section 271(1)(c) of the Act. He also deposed before the Ld. CIT(A) in his affidavit that the appeal was not filed because of his advice and that the delay may be condoned. We feel it difficult to digest that such an advice may be given to an assessee by a Chartered Accountant and then that Chartered Accountant could affirm that he in fact has given such a wrong advice to the assessee by way of deposition in an affidavit.

Even no application for condonation of delay has been filed before this Tribunal. No reasons/circumstances for filing the appeal with a delay of 361 days has been explained before us. It seems that the assessee again failed to take advice from his senior counsel even after dismissal of his appeal for the same reason by the Ld. CIT(A). Hence, appeal before this Tribunal is barred by limitation.

In view of this, neither we find any reason to interfere with the order of the Ld. CIT(A) in dismissing the appeal before him being barred by limitation nor we find any reason or sufficient cause to condone the delay in filing the appeal before this Tribunal. Hence, the appeal of the assessee is dismissed in both courts.

The appeal of the assessee is therefore dismissed.