Subject: Meenu and Yadav Singh Group, where certain incriminating documents were found
Referred Sections:
Section 132 of the I.T. Act, 1961,
Section 153C of the Act
Section 142A(1) of the I.T. Act
Section 5 of the Limitation Act, 1963,
Referred Cases / Judgments
Jagdeep Singh, Panipat vs. ITO,
Maruti Estates (India) Pvt. Ltd., Bhubaneswar vs. ACIT, Circle-2(1), Bhubaneswar in ITA.No.321/CTK/2017, Dated 17.04.2018.
CIT vs. Taggas Industries Development Ltd. [2002] 80 ITD 21
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "SMC" : DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
ITA.Nos.6554 & 6553/Del./2018
Assessment Years 2010-2011 & 2011-2012
M/s. Kinzo Exports Pvt.
The DCIT,
Ltd., B-57, Vishwakarma
Colony PUI, Paraladpur,
vs. Central Circle,
Mehrauli Badarpur Road,
Noida.
New Delhi.PAN AADCK2063K
(Appellant) (Respondent)
Shri B.L. Gupta,
For Assessee :
Income Tax Practitioner.
For Revenue : Shri S.L. Anuragi, Sr. D.R.
Date of Hearing : 29.04.2019
Date of Pronouncement : 02.05.2019
ORDER
Both the appeals by the same assessee are
directed against the common Order of the Ld. CIT(A)-IV,
Kanpur, Dated 24.09.2018, for the A.Ys. 2010-2011 and
2011-2012.
2. Briefly the facts of the case are that a search and
seizure operation under section 132 of the I.T. Act, 1961,
was conducted on 27.11.2014 in the case of Maconns,
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Exports P. Ltd., New Delhi.
Meenu and Yadav Singh Group, where certain incriminating
documents were found and seized relating to the assessee
company. Accordingly, notices under section 153C of the
Act were issued on 27.06.2016, for both the assessment
years. In response, assessee filed its return showing income
of Rs.(-)23,088/- for A.Y. 2010-2011 and (Rs.(-)1,57,180/-
for A.Y. 2011-2012. Later on, statutory notices were issued
for completion of the assessment and the A.O. completed
the assessment by making additions of Rs.9,75,374/- and
Rs.12,07,441/- on account of unexplained/unaccounted
investments for A.Y. 2010-2011 and A.Y. 2011-2012
respectively. The A.O. passed the assessment orders dated
31.12.2016.
3. The assessee filed appeals before Ld. CIT(A) on
26.06.2017. The Ld. CIT(A) observed that these appeals are
filed belatedly by 175 days. The assessee filed application
for condonation of delay stating therein that assessee had
given instruction for filing of the appeals, but, due to
inadvertence at the level of Counsel for the Assessee, the
appeals could not be filed within the stipulated period. The
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ITA.Nos.6553 & 6554/Del./2018 Kinzo
Exports P. Ltd., New Delhi.
Ld. CIT(A) found the explanation of assessee to be
inadequate and unconvincing. The Ld. CIT(A) also observed
that inspite of clear cut instructions from assessee, the
Counsel for Assessee who has vast experience of profession
in his field, has not cared to file the appeal on time. The
explanation of assessee was not accepted. The Ld. CIT(A),
accordingly, dismissed both the appeals as time barred.
4. Learned Counsel for the Assessee reiterated the
submissions made before the Ld. CIT(A) and submitted that
application for condonation of delay was supported by
affidavit of Shri Rajesh Sharma, C.A. He has submitted that
the Ld. CIT(A) should have taken a pragmatic view while
condoning the delay in the matter and on technical matter
the appeals should not be dismissed being time barred,
when assessee has a merited case. In support of the above
submissions, Learned Counsel for the Assessee relied upon
the following Orders of various Benches of the Tribunal.
(i) ITAT, Cochin Bench in the case of M/s. Midas
Polymer Compounds Pvt. Ltd., Kottayam in
ITA.No.288/Coch/2017 Dated 25.06.2018.
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ITA.Nos.6553 & 6554/Del./2018 Kinzo
Exports P. Ltd., New Delhi.
(ii) Order of ITAT, Delhi, SMC Bench in the case of
Jagdeep Singh, Panipat vs. ITO, Ward-3, Panipat
in ITA.No.1462/Del./2017, Dated 18.01.2019.
(iii) Order of ITAT, Cuttack Bench in the case of
Maruti Estates (India) Pvt. Ltd., Bhubaneswar vs.
ACIT, Circle-2(1), Bhubaneswar in ITA.No.321/
CTK/2017, Dated 17.04.2018.
5. On the other hand, Ld. D.R. relied upon the
impugned Orders and submitted that explanation of
assessee would not disclosed any sufficient cause for not
presenting the appeals within the period of limitation.
Therefore, the Ld. CIT(A) correctly dismissed the appeals of
assessee holding them to be time barred.
6. I have considered the rival submissions and
perused the material on record. In A.Y. 2011-2012, the A.O.
asked for the details of expenses incurred by assessee on
construction of the property. However, no details have been
filed. The A.O, therefore, in order to arrive at actual cost of
construction made, a statutory reference under section
142A(1) of the I.T. Act for determination of the fair market
value of the property. The A.O. accordingly made the
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ITA.Nos.6553 & 6554/Del./2018 Kinzo
Exports P. Ltd., New Delhi.
addition because assessee failed to explain the issue before
him. Similar is the position for A.Y. 2010-2011 in which the
assessee similarly did not file any details of the expenses.
Therefore, statutory reference was made for valuation of fair
market of the cost of construction and addition was
accordingly made. It is, therefore, clear that before the A.O.
assessee did not lead any evidence in support of the
contention raised before A.O. It would, therefore, make it
clear that when nothing was adduced before A.O. and
addition was made on the basis of difference in valuation as
per statutory valuation obtained by A.O. under section
142A(1) of the I.T. Act, perhaps the assessee never wanted
to challenge the additions before the Ld. CIT(A). It, therefore,
appears that whatever explanation have been made by the
assessee before the Ld. CIT(A) for condonation of delay was
clearly an afterthought as assessee has no merit in his
appeals. It may also be noted here that in the application for
condonation of delay (copy of which is filed at page-21 of the
PB) the assessee explained that assessee has instructed
their Counsel Sharma Kapoor Associates for filing of the
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Exports P. Ltd., New Delhi.
appeals in January, 2017. The assessee further explained
that to his surprise, the above Counsels could not file the
appeals due to misplace of the papers. The assessee also
explained that their Counsels has committed a blunder
mistake in not filing the appeals. The assessee also filed
affidavit of Shri Rakesh Sharma, C.A. at Page-17 of the PB
in which he has mentioned in para-3 that "I could not file
the appeals intime inadvertently since it escaped my
attention." There is, thus, contradiction in the explanation
of assessee as mentioned in the application for condonation
of delay and in the affidavit of Shri Rakesh Sharma, C.A.
The averments contained in the application for condonation
of delay and affidavit are contradictory and as such both
cannot be relied upon in support of the explanation of
assessee. The assessee, thus, has failed to disclose any
sufficient cause for not presenting the appeals within the
period of limitation. According to Learned Counsel for the
Assessee, when their earlier Counsels have committed a
blunder mistake, but, what steps have been taken by the
assessee against them has also not been explained during
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Exports P. Ltd., New Delhi.
the course of arguments. The assessee, thus, failed to
explain any bonafide reason on their part for seeking
condonation of delay in the matter. Thus, the assessee acted
negligently and never acted bonafidely in the matter. It
would be appropriate to refer to some of the judicial
pronouncements on the issue of delay in filing the appeals.
6.1. In the case of Hind Development Corpn. v. ITO
[1979] 118 ITR 873, the Calcutta H i g h Court held that a
Tribunal can condone the delay if there was sufficient cause
for the delay i n t h e submission of the appeal. In the case
of Vedabai alias Vijayanatabai Baburao Patil v. Shantaram
Baburao Patil [2002] 253 ITR 798 (SC), where it was held
that while exercising discretion under section 5 of the
Limitation Act, 1963, to condone delay for sufficient cause
in not filing the appeal within the period prescribed, Courts
should adopt a pragmatic approach. A distinction must be
made between a case where the delay is inordinate and a
case where the delay is of a few days. The Court observed
that whereas in the former consideration of prejudice to the
other side will be a relevant factor and calls for a more
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Exports P. Ltd., New Delhi.
cautious approach. In the latter case no such consideration
may arise and such a case deserves a liberal approach. Now
in the present case, the delay is not of a few days but of
175 days. Besides, there is absolutely no valid
explanation/reason for the delay. In the case of CIT v. Ram
Mohan Kabra [2002] 257 ITR 773, the Hon'ble Punjab &
Haryana High Court has observed that where the
Legislature spells out a period of limitation and provides for
power to condone the delay as well, such delay can only be
condoned only for sufficient and good reasons supported by
cogent and proper evidence. It is a settled principle of law
that provisions relating to the specified period of limitation
must be applied with their rigor and effective consequences.
In this case, delay for filing the appeal late for only a few
days was not condoned. In the case of Asstt. CIT vs. Taggas
Industries Development Ltd. [2002] 80 ITD 21
(Cal.),Tribunal, Calcutta Bench, Calcutta, did not condone
the delay for filing the appeal late by 13 days because the
delay was not due to sufficient cause.
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ITA.Nos.6553 & 6554/Del./2018 Kinzo
Exports P. Ltd., New Delhi.
6.2. Thus, relying on the above judgments, I hold that
assessee failed to explain that delay in filing the appeals was
due to sufficient cause. Considering the above discussion, I
am of the view that Ld. CIT(A) correctly dismissed the appeal
of assessee by holding them to be time barred. No
interference is required in the matter. Appeals of assessee
are dismissed.
7. In the result, appeals of Assessee are dismissed.
Order pronounced in the open Court.
Sd/-
(BHAVNESH SAINI)
JUDICIAL MEMBER
Delhi, Dated 02nd May, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT `SMC' Bench, Delhi
6. Guard File.
// BY Order //
Assistant Registrar : ITAT Delhi Benches :
Delhi.
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