What did the Tribunal hold?

The Tribunal rejected the condonation petition as the delay for the initial period was not explained. Consequently, the appeal was dismissed as unadmitted.

The assessee filed an appeal before the ITAT 72 days after the prescribed due date. The assessee sought condonation of the delay, citing the illness of their General Manager, Finance, who was handling the matter.

What were the issues?

Whether the delay in filing the appeal can be condoned based on the reasons provided by the assessee.

M/S. Trishul Tread Pvt. Ltd… vs ACIT | ITAT Cuttack 2017

Income Tax Appellate Tribunal, CUTTACK

Before: SHRI N.S SAINI

For Respondent: Shri D.K.Pradhan, DR

Pronounced: 16/05

This is an appeal filed by the assessee against the order of CIT(A)-1,

Bhubaneswar, dated 30.7.2015, for the assessment year 2010-2011.

The assessee has raised the following grounds:

“1. The Assessment Order U/s.143(3) of the Income Tax Act as well as the Appellate Order are against law, weight of evidences and probabilities of the case.

The learned Commissioner of Income Tax (Appeal) confirmed the Assessment Order without applying his mind.

The learned Assessing Officer has most arbitrarily disallowed Rs.3,74,906/-, on account of expenditure incurred by the Directors through credit card merely recording that, the,/ amount involved are too high and unreasonable without attributing any reason.

ITA No. 466/CT K/ 2015 Asse ssment Year : 20 10- 201 1 4. The learned Assessing Officer has most arbitrarily disallowed Rs.5,50,346/- , when it was explained that the expenditure incurred by the company for two numbers of Directors for attending conference and visit factory of manufacture of equipment’s, which are dealt by the company as a dealer.

The learned Assessing Officer has most arbitrarily disallowed Rs.4,13,400/-, as commission in lieu of salary paid to the Director. The Director is highly qualified, having vast experience and the learned Assessing Officer applied section 40A(2)(a) of the Income Tax Act by comparing the commission paid with commission paid to the staffs.”

When the case was called for hearing, none was present on behalf of

the assessee and neither any adjournment application was filed. It is

observed from the record that the appeal was adjourned at the request of

ld Authorised Representative of the assessee on 20.12.2016, 11.1.2017,

20.1.2017, 25.1.2017, 14.3.2017 & 4.4.2017 As sufficient adjournments

were granted to the assessee, the appeal was heard exparte qua the

assessee and disposed of considering the submission of ld Departmental

Representative and materials available on record.

The appeal filed by the assessee is barred by limitation by 73 days.

The assesse has filed condonation petition supported by affidavit dated

28.12.2015 explaining the reasons for delay in filing the appeal before the

Tribunal. The said condonation petition reads as under:

“The above named appellant has filed an appeal against the order of the Commissioner of Income Tax (Appeal)-I, today i.e. 28th of December 2015, after a delay of Seventy two (72) days. The Appeal Order passed by the Honourable Commissioner of Income Tax (Appeal)-I, was served in the office of the appellant by post on 17th August, 2015. The order was received by an assistant of the appellant company. Sri P. K. Panda, General Manager, Finance, was representing the appellant company before the Assessing Officer as

ITA No. 466/CT K/ 2015 Asse ssment Year : 20 10- 201 1 well as Commissioner of Income Tax (Appeal)-I. From the month of October, he has been suffering from high diabetes and Blood pressure. Due to high diabetic and Blood Pressure his nervous system has been affected severely. The Doctor has advised Sri P. K. Panda to take rest and he is under the treatment, even now. He was unable to attend his duty, due to reason mentioned above. However, when Sri P. K. Panda recovered partially, he resumed his duty and checked the correspondence from the Income Tax Department. Then it was revealed that, the Appeal Order was received by the assistant and Sri P. K. Panda immediately contacted the Tax Consultant of the appellant company to file an appeal on behalf of the appellant. Affidavit stating the cause of delay is enclosed herewith. The non-filing of an appeal in the part of the appellant is not intentional rather accidental which happened due to the illness of Sri P. K. Panda, General Manager, Finance, of the appellant company.

Under the above circumstances, the Honourable Bench is prayed to kindly condone the delay of Seventy two (72) days in filing the appeal, for which, the appellant shall remain grateful forever.”

A bare perusal of the above condonation petition shows that the

appeal order of the CIT(A) was received by the assessee on 17.8.2015. As

per the provisions of section 253(2) of the Income tax Act, 961, the

assessee should have filed appeal before the Tribunal within 60 days from

the date of receipt of order of the CIT(A). The assessee has admitted in

the condonation petition that the appeal was filed on 28.12.2015 before

the Tribunal after the delay of 72 days. The reason explained by the

assessee in the affidavit and condonation petition is that the General

Manager, Finance, Shri P.K.Panda who was representing the assessee

company before the Assessing Officer as well as the CIT(A)-1, was suffering

from high diabetes and blood pressure and due to this reason, in October,

2015, his nervous system was affected severely and Doctor advised Shri

Panda to take rest and, therefore, he was unable to attend his duty.

ITA No. 466/CT K/ 2015 Asse ssment Year : 20 10- 201 1 6. I find that it is admitted by the assessee in the condonation petition

that the appeal order of the CIT(A) was received by post in his office on

17.8.2015. Thus, the appeal was required to be filed by the assessee on or

before 5.10.2015. The assessee in the condonation petition is silent about

the reasons for non-filing of the appeal during the period from 17.8.2015

to 30.9.2015. Therefore, the condonation petition filed by the assessee

cannot be accepted as the delay in filing the appeal for the period from

17.8.2015 to 30.9.2015 has not been explained by the assessee. Further,

it has not been stated in the condonation petition as to when Shri

P.K.Panda, General Manager (Finance) of the assessee recovered from his

illness and that after his recovery the appeal was filed within the prescribed

period of 60 days or not. Hence, in the above facts and circumstances of

the case, as the delay in filing the appeal before the Tribunal of 72 days

has not been explained with plausible reasons, we reject the condonation

petition and dismiss the appeal of the assessee as un-admitted.

In the result, the appeal filed by the assessee is dismissed as

unadmitted.

Order pronounced in the open court on 16/05/2017 in the presence of parties. Sd/- (N.S Saini) ACCOUNTANT MEMBER Cuttack; Dated 16 /05/2017 B.K.Parida, SPS

ITA No. 466/CT K/ 2015 Asse ssment Year : 20 10- 201 1 Copy of the Order forwarded to : 1. The Appellant : M/s. Trishul Tread Pvt Ltyd., Plot No.220, Sec-A, Zone-B, Mancheswar Industrial Estate, Bhubaneswar 2. The Respondent. DCIT, Circle 2(2), Bhubaneswar 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack BYORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack

M/S. TRISHUL TREAD PVT. LTD.,BHUBANESWAR vs. ACIT, CIRCLE-2(2), BHUBANESWAR

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