Cherraan Properties Ltd., Cheran Towers v. The Assistant Commissioner Of Income Tax, Company Circle – 1(1), Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 14.12.2017Coram The Hon'ble Mr.Justice T.S.Sivagnanam &The Hon'ble Mr.Justice K.Ravichandrabaabu T.C.A.No.664 of 2017 Cherraan Properties Ltd.,Cheran Towers,78, Arts College Road,Coimbatore - 641 018,PAN : AABCC 0860G. ...AppellantVs.The Assistant Commissioner of Income Tax,Company Circle – 1(1),Coimbatore. ...Respondent The Assistant Commissioner of Income Tax,Company Circle – 1(1),Coimbatore. Prayer: Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order, dated 19.05.2017, inI.T.A.No.1114/MDS/2014 on the file of the Income Tax AppellateTribunal, B/SMC Bench, Chennai, which was preferred against theOrder dated 23/09/2013 by the Commissioner of Income Tax(appeals)-I Coimbatore in Appeal No:394/11-12, against the Orderdated 30/12/2011 For the Assessment Year 2004-05 by theAssistant Commissioner of Income Company Circle-1(1) Coimbatore. For Appellant : Mr. M.P.Senthil Kumar For Respondent :Mr. S.RajeshJUDGEMENT (Judgement of the Court was delivered by T.S.Sivagnanam, J.,) Heard Mr. M.P.Senthil Kumar, the learned counselappearing for the appellant and Mr.S.Rajesh, the learned JuniorStanding Counsel appearing for the Revenue. 2.This Appeal filed by the assessee is directed asagainst the order passed by the Income Tax Appellate Tribunal,Chennai (in short, Tribunal) in I.T.A.No.1114/Mds/2014, dated19.05.2017. https://hcservices.ecourts.gov.in/hcservices/ 3.The Tribunal, by the impugned order, dated 19.05.2017,dismissed the appellant's Appeal as being time barred. TheAppeal was presented with a delay of 155 days, and theexplanation given by the assessee is that, the order passed bythe Commissioner of Income Tax (Appeals) (for short, CIT(Appeals) was received by an employee, and he has not brought tothe notice of the assessee, and the assessee was under bona fidebelief that the matter is still pending before CIT (Appeals) andonly after the employee handed over all the Income Tax materialrecords, when he resigned from his employment, and whileperusing the files, the assessee came to know about the orderpassed by the CIT (Appeals), and therefore, prayed forcondonation of delay. 4.The Tribunal took into consideration the factualposition and the conduct of the assessee, and refused to condonethe delay. Challenging the said order, the assessee has filedthis Appeal, raising the following substantial questions of law:- "(i) Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in law in dismissing the Appealas unadmitted in limine by declining to condone thedelay caused in filing the Appeal?(ii) Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in law in dismissing the Appealas unadmitted by not condoning the delay withoutjudiciously exercising the power in accordance withthe provisions of sub-section (5) to section 253 ofIncome Tax Act, 1961?” 5.On a reading of the order passed by the Tribunal, wefind that the Tribunal has recorded, as to how, the assessee hasnot been co-operating with the assessment proceedings right fromthe stage before the Assessing Officer, and there can be novalid explanation, that can be given by the assessee for theirconduct. The records should speak for themselves. 6.The findings recorded by the Tribunal may betechnically right. However, what passes in our mind is that,the Appeal remedy under the provisions of the Income Tax Act,1961 is a very valuable remedy, and such remedy is availablebefore the Tribunal, which is a Judicial Tribunal (first forum)where, the correctness of the decision taken by the statutoryauthority is to be tested. That apart, we find that the delayis not an inordinate delay, but, it is 155 days. However, while https://hcservices.ecourts.gov.in/hcservices/ 6.The findings recorded by the Tribunal may betechnically right. However, what passes in our mind is that,the Appeal remedy under the provisions of the Income Tax Act,1961 is a very valuable remedy, and such remedy is availablebefore the Tribunal, which is a Judicial Tribunal (first forum)where, the correctness of the decision taken by the statutoryauthority is to be tested. That apart, we find that the delayis not an inordinate delay, but, it is 155 days. However, while https://hcservices.ecourts.gov.in/hcservices/ noting that the appellate remedy is a valuable right andsimultaneously, taking note of the conduct of the assessee, weare inclined to grant indulgence to of the assessee, subject tocertain conditions (mentioned infra).7.Accordingly, we direct the appellant/assessee to pay50% of the disputed tax, which, according to the assessmentorder, is Rs.11,95,591/- within a period four weeks from thedate of receipt of a copy of this order. If the appellantcomplies with the condition, i.e. by remitting 50% of thedisputed tax, then, the Tribunal is directed to condone thedelay, and take the Appeal on its file, and take a decision onmerits and in accordance with law. However, if the assesseefails to comply with the conditional order within the stipulatedtime, the benefit of this order will not enure to theassessee/appellant and this Appeal would be automaticallydismissed, without further reference to this Court. On theabove terms, the substantial questions of law raised in thisTax Case Appeal are answered accordingly. 8.Accordingly, this Tax Case Appeal stands disposed of. No costs. msm/sdTo //True copy// Sd/-Assistant Registrar(CS V)Sub Assistant Registrar 1.The Officer in Charge, Income Tax Appellate Tribunal, B/SMC Bench, Chennai. 2.The Commissioner of Income Tax (Appeals)-I, Coimbatore. 3.The Assistant Commissioner of Income Tax, Company circle-I(1), Coimbatore. +1cc to Mr.G.Baskar, Advocate SR.No.89382 T.C.A.No.664 of 2017 TM(CO)GN(17/01/2018)