G.vanitha v. The Asst. Commissioner Of Income Taxcentral Circle Ii (1)Chennai 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 05.08.2014 CORAMTHE HONOURABLE MR. JUSTICE R.SUDHAKARANDTHE HONOURABLE MR. JUSTICE G.M.AKBAR ALI T.C.A. NOS. 838 & 839 OF 2014 G.Vanitha.. Appellant in TC (A) No.838/13G.Saravanan.. Appellant in TC (A) No.839/13/ Appellants in both appeal- Vs - The Asst. Commissioner of Income TaxCentral Circle II (1)Chennai 600 034. .. Respondent in both appeals/Respondents in both appeal Tax Appeals u/s 260-A of the Income Tax Act filed against theorder of the Income Tax Appellate Tribunal, Madras 'D' Bench, dated30.09.2013 in IT (SS) A Nos.02 and 03/Mds/2013 for the block periodfrom 1991-1992 to 2000-2001 and 1.4.2000 to 6.12.2000 against theorder of the Commissioner of Income Tax, Appeals-I, Chennai dated24.1.2013 made in I.T.A.No.143/2012-13 against the order of theDeputy commissioner of Income Tax central Circle II(1) Chennai-34dated 28.1.05 and made in P.A.No./C1R No.702-V/AAHPU 3819 andAssessment year 91-92 to 2000 - 2001 and 1.4.2000 to 6.12.2000 inTC.No.838/2013 and against the order of this Commissioner of IncomeTax(Appeals)-1,Chennai-34dated24.1.2013madeinI.T.A.No.126/2012-13 and PAN ABGPS 8826B against the order of thisDeputy Commissioner of Income - Tax Central Circle II (1) Chennai 600034 dated 30.7.2004 and made in PANO/GIR NO.730S/ABGPS 8826B andAssessment year 91-92 to 2000-01 and 1.4.2000 to 6.12.2000 is TCNo.839/2013. For Appellants : Mr. Mr. S.SridharFor Respondent : Mr. Swaminathan COMMON JUDGMENT(DELIVERED BY G.M.AKBAR ALI, J.) These tax appeals are preferred against the order dated 30.9.13,passed by the Income Tax Appellate Tribunal, Madras 'D' Bench, in IT(SS) A Nos.02 and 03/Mds/2013 for the block period from 1991-1992 to2000-2001 and 1.4.2000 to 6.12.2000. https://hcservices.ecourts.gov.in/hcservices/ 2. Even at the very outset, we find that the plea of the counselfor the appellants seeking sympathetic consideration for condonationof delay does not deserve even an iota of sympathy, not only onaccount of the delay, but also on account of the conduct of theassessee in filing improper papers, both before the Tribunal as wellas before this Court. 3. Apart from the above stated position with regard to the filingof the case, on the merits of the case, the brief facts necessary forthe disposal of these appeals are as under :- The assessees were carrying on business under the name and styleof 'Murugan Videos' and 'Saravana Video Centre' respectively. Therespondents initiated action under Section 130 of the Income Tax Actand block assessment was completed under Section 143 of the Act andthe assessement was completed as early as on 30.7.04. Penaltyproceedings under Section 158 BFA of the Income Tax Act wereinitiated vide notice dated 30.7.04 and the Assessing Officer, levieda penalty of Rs.20,45,670/= (Rupees Twenty Lakhs Forty Five ThousandSix Hundred Seventy only) and Rs.20,33,357/= (Rupees Twenty LakhsThirty Three Thousand Three Hundred and Fifty Seven only) againstwhich appeals were preferred by the appellants before theCommissioner of Income Tax (Appeals) (for short 'CIT (A)'). The saidappeals were preferred only in October, 2010 after a long delay. Itis the case of the assessee that penalty proceedings dated 28.1.05was received by the assessee and handed over to their charteredaccountant, who prepared the appeal on 13.2.05, but the appeal wasnot filed and the penalty proceedings orders were misplaced.According to the assessee, they received demand notices dated 16.2.10and, thereafter, appeal was initiated on 28.10.10. The CIT (A)considered the appeals, but not satisfied with the reasons adducedfor such delay, dismissed the appeals against which appeals werepreferred before the Appellate Tribunal by the assessee. 4. Even before the Tribunal, the assessee's case was that onlyafter receiving the demand notices, the appeals were initiated on11.11.10. According to the assessees, they cannot be penalised forthe error committed by their chartered accountants and theirknowledge was only in October, 2010 and, thereafter, steps were takento file the appeals. However, the Tribunal found the assessees havenot even filed an affidavit of their chartered accountant formisplacement of the penalty orders and the decisions relied on by theassessees are not applicable to the case on hand and, therefore,dismissed the appeals, against which the present appeals have beenfiled. 5. On notice, Mr.Swaminathan, learned senior standing counselappears on behalf of the Revenue. Heard Mr.Sridhar, learned counselappearing for the appellants and Mr.Swaminathan, learned seniorstanding counsel appearing for the Revenue. 6. Learned counsel appearing for the appellants submitted thatthe case of the assessees has to be viewed sympathetically as it isan individual case and the penalty is more than Rs.20 lakhs in eachcase. Learned counsel for the appellants further pointed out thatbecause of the fault of the chartered accountant, the individualassessee should not be penalised. To drive home the said point,learned counsel for the appellants relied upon the decisions in167ITR 471 (SC), (2009) 316 ITR 197, (2006) 280 ITR 357 (Mad) and (2010)327 ITR 139 (Mad). 7. Per contra, learned sen ior standing counsel for the Revenuedrawing the attention of this Court to pages – 12 and 13 of the typedset of the assessee, wherein the grounds of appeal dated 13.2.05 and25.5.05 respectively, pointed out that the said grounds of appeal wasnot found to be the grounds of appeal preferred before the CIT (A).According to the Revenue, one of the ground raised is that theassessees received the intimation only in October, 2010 and,thereafter, they preferred the appeal, whereas the assessees at thesame time would admit that penalty proceedings order was passed on28.1.05 and the same was received by the assessees and handed over totheir chartered accountant as early as in the year 2005 and thoughappeal grounds were prepared, but the same was not filed for thereason that the penalty proceeding orders were misplaced by thechartered accountant. 8. This Court, on a consideration of the materials placed beforeit and also on appreciation of the arguments advanced on either sideis of the considered view that the case of the appellants has tonecessarily fail. As already pointed out by the Tribunal as well asthe CIT (A), the assessees were not vigilant and they slept over thematter for more than five years and they have not even cared to fileproper documents either before the CIT (A) or before the Tribunal oreven before this Court. Neither the affidavit of the charteredaccountant nor a letter from the chartered accountant has been filedeither before the CIT (A) or before the Tribunal to explain thedelay. However, the assessees rely on a demand letter dated 16.2.10and their reply dated 9.3.10 for furnishing a copy of the penaltyproceedings. Neither the letter dated 16.2.10 nor the reply dated9.3.10 finds any place before the lower authorities and even beforethis Court, the same do not form part of the typed set of papers.However, at the time of hearing only, a copy of the letter dated9.3.10 alone is produced, whereas the communication of the departmentdated 16.2.10 is not produced even before this Court. This Court isof the considered view that the reasons for the delay has not beensatisfactorily explained warranting condonation before the originalauthority, the appellate Tribunal as well as before this Court. 9. Though the learned counsel for the assessees tried his best toconvince this Court to look into the matter sympathetically, thisCourt, while appreciates the endurance of the learned counsel for theassessees, is not inclined to accept such a prayer, since theassessees have slept over the matter for more than five years. https://hcservices.ecourts.gov.in/hcservices/ 10. For the reasons aforementioned, this Court is of theconsidered view that there is no questions of law much lesssubstantial questions of law that arise for consideration in theseappeals. There being no merits, both the appeals are dismissed.However, there shall be no order as to costs. Sd/-Assistant Registrar //True Copy// Sub Assistant Registrar GLN To1. The Asst. Commissioner of Income Tax Central Circle II (1) Chennai 600 034.2. The Commissioner of Income Tax, Appeals-1, Chennai-34.3. The Deputy Commissioner of Income Tax Central Circle II(1) Chennai -34.4. The Assistant Registrar Income Tax Appellate Tribunal, Madras 'D' Bench, Besant Nager, Chennai 600 090.+ 2 ccs to Mr.S.Sridhar, Advocate SR.35021+ 2 ccs to Mr.M.Swaminathan, Advocate Sr.34918 BKY(CO)Eu 22.12.14