Ita/64/2012 Of Director Sagar Maize Products Limited v. Income Tax Officer

12.2.2015. Shri Manoj Munshi, learned counsel for the appellant. Shri R.L. Jain, learned Senior counsel with Ms. Veena Mandlik, learned counsel for the respondent. Heard on I.A.No.3860/2012, an application for condonation of delay. Appeal under Section 260A of the Income Tax Act, 1961, filed by the appellant against the order of ITAT dated 30.4.2011 is barred by 287 days. 2.An application for condonation of delay has been filed on the ground that the impugned order dated 30.4.2011, was passed and pronounced by the tribunal in open court as appeared from the order. However, it was kept reserved for a long time and when the order was pronounced by the tribunal, appellant was not present and the counsel of the appellant was not aware of the order dated 30.4.2011 and when a demand notice dated 4.1.2012 was served upon the appellant on 5.1.2012 by the Assistant Commissioner, Ujjain, the appellant came to know about the order passed by the tribunal in favour of the department and against the appellant. He obtained the certificate copy of the order on 2.2.2012 through his counsel and filed a W.P.No.2387/2012 and thereafter, the same was decided on 13.12.2012 therefore, the same was dismissed as withdrawn on 13.12.2012. 3.In the meanwhile, the present appeal was filed on 7.3.2012. With the aforesaid, he submits that the present appeal has been filed with a delay of 34 days and prayed that the aforesaid delay be condoned. This application is supported by the affidavit of Shri Sanjay Rathi, Director of the appellant – Company. As per para 2 of the affidavit on 4.1.2012, when the Assistant Commissioner of Income Tax served a judgment notice of appellant – company then only he came to know about the order. 4.The department in its reply has stated that the order dated 30.4.2011 was pronounced in the open court and at that time the chartered accountant of the appellant – company was present and the outcome of the same was known to the assessee as well as the counsel. After passing of the order a copy is being sent by the tribunal to the appellant as well as to the respondent by the Registry within a short period. As per service certificate of the ITAT the order of the tribunal was served upon the appellant M/s. Sagar Maize Product Limited on 24.5.2011. 5.A counter affidavit has been filed by the Director of the appellant – company Mr. Sanjay Rathi and as per para 4 he has deposed that all the notices which are normally issued by the Income Tax Department are served to the chartered accountant of the company who is regularly appearing before the authorities and most of the time, the chartered accountant receives the notice issued by the Income Tax Department and take necessary steps accordingly. He has further stated that the address of the service of notice as well as order in Form 35 was mentioned by the chartered accountant. In para 6 of the affidavit he has deposed that whenever any messenger of the department bring notice related to the income tax or commercial tax, he normally redirect him to the chartered accountant to serve the copy on behalf of the department to the chartered accountant. 6.In respect of the present case, he has no knowledge whether notice has been directly served to the assessee or when person from department came to his place and he redirected the messenger to serve the same to his chartered accountant. 7.From the aforesaid, one of the version of the affidavit filed by the assessee is false, incorrect and contrary to the record of case. The impugned order was passed in open court and thereafter, the same was sent by registered post to the Director of the appellant company on 24.5.2011 and as per service certificate of ITAT, the same has been duly served to the appellant on 24.5.2011. 6.In respect of the present case, he has no knowledge whether notice has been directly served to the assessee or when person from department came to his place and he redirected the messenger to serve the same to his chartered accountant. 7.From the aforesaid, one of the version of the affidavit filed by the assessee is false, incorrect and contrary to the record of case. The impugned order was passed in open court and thereafter, the same was sent by registered post to the Director of the appellant company on 24.5.2011 and as per service certificate of ITAT, the same has been duly served to the appellant on 24.5.2011. 8.From the aforesaid, we are of the view that the cause shown by the appellant is not at all sufficient to condone the delay. Even there are material contradictions in both the affidavits, which have been filed in support of the application for condonation of delay. The Director of the appellant – company has not given true and correct facts about service of order dated 30.4.2011 and also about the fact that judgment was pronounced in the open court. No affidavit of chartered accountant has been filed that order has been served to him or judgment was not pronounced in the open court. 9.It is well settled that sufficient cause should be construed liberally on facts without any hard and fast rule. No doubt, substantive rights of parties should not be ignored because of delay, but a distinction must be made between delay of few days and inordinate delay causing prejudice to the other side. No premium can be given for utter negligence of the appellant and giving incorrect explanation, in support of the prayer for condonation of delay, the explanation given by the appellant is not at all sufficient to condone the delay. 10.It is also not disputed by the learned counsel for the parties that issue involved in this appeal has already been settled by the Apex Court in the case of CIT v/s. Ghanshyam (HUF), reported as2009 (8) SCC 412. 11.For the ongoing reasons, the application for condonation of delay has not merit and is accordingly, dismissed. 12.Consequently, the appeal filed by the appellant is also dismissed. (P.K. JAISWAL) J U D G E (ALOK VERMA) J U D G E J U D G E