M/S. Rathna Stores Pvt. Ltd v. The Commissioner Of Income Tax Iii,Chennai

DATED: 19.08.2020 CORAM THE HON'BLE DR.JUSTICE VINEET KOTHARIANDTHE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY T.C.A.No.359 of 2017 M/s. Rathna Stores Pvt. Ltd.No.79, Usman RoadT.Nagar,Chennai - 600017. ...Appellant vs. The Commissioner of Income Tax III,Chennai ...Respondent Prayer ::- Appeal filed against the order of the Income TaxAppellate Tribunal, "C" Bench, Chennai, in ITA No.113/Mds/2016dated 29.04.2016 TCA 359 OF 2017 Appeal against the order dated 20.01.2016 made in ITANo.89/2013-14/A-3 on the file of the Commissioner of Income Tax(A)-3, Chennai, for the Assessment year 2007-08 against theorder dated 26-09-2013 made in PAN /GI No.AACCR728F on the fileof the Deputy Commissioner of Income Tax Company Circle-V(3),Chennai for the Assessment Year 2007-2008 against the orderdated 07-03-2013 made in PAN/GI No. on the file of theAssistant Commissioner of Income Tax, Company Circle-V(3),Chennai for the Assessment Year 2007-08 against the order dated29/03/2012 made in PAN on the file of theCommissioner of Income Tax, Chennai III, Chennai for theAssessment year 2007-08 against the order dated 30-12-2009 madein PAN. on the file of the Income Tax Officer(OSD),Company Circle V(3), Chennai. For appellant: Mr.S.Sridhar For respondent : Mr.T.Ravikumar JUDGMENT (Made by DR.VINEET KOTHARI, J.) The Court was held by Video Conference, as per theResolution of the Full Court dated 3 July 2020, by Judges attheir respective residence and the counsel, staff of the Courtappearing from their respective residences. 2. This appeal has been filed by the Assessee under Section260A of the Income Tax Act, against the order of the Tribunaldated 29 April 2016, dismissing the appeal of the Assesseeagainst the order of the Commissioner of Income Tax, underSection 263 of the Act. The said appeal was filed by theAssessee with a huge delay of 1333 days, approximately fouryears. The Assessee did not file any application seekingcondonation of delay, along with affidavit, before the Tribunal,explaining reasons for delay, despite an opportunity given bythe Tribunal on 14 March 2016 and the matter was adjourned to 17March 2016. Paragraph No.2 of the order of the Tribunal isquoted below for ready reference. “2.When the appeal was taken up forhearing, it was found that the Assessee hasnot filed any petition for condonation ofdelay of 1333 days in filing the appealbefore the Tribunal. Despite service ofdefect notice (AD on record) mentioning theappeal filed by the Assessee is barred by1333 days, the Assessee has failed to fileany petition for condonation of huge delay.Initially, the hearing of the appeal wasfixed on 14.03.2016 and at the request ofthe learned for the Assessee, the hearingwas adjourned to 16.03.2016. Again at therequest of the learned counsel for theAssessee, the hearing was adjourned to17.03.2016. When the appeal was taken up forhearing on 17.03.2016, though the learnedcounsel for the Assessee has appeared, butcould not file any petition for condonationof delay in filing the appeal, the Bench wasof the opinion that the appeal filed by theAssessee is not maintainable. Accordingly,the appeal filed by the Assessee isdismissed as not maintainable.” 3. Mr.S.Sridhar, learned counsel for the appellant submittedthat the Assessee unfortunately waited for passing of thepenalty order, for which a direction was given by the learnedCommissioner of Income Tax under Section 263 of the Act. When https://hcservices.ecourts.gov.in/hcservices/ 3. Mr.S.Sridhar, learned counsel for the appellant submittedthat the Assessee unfortunately waited for passing of thepenalty order, for which a direction was given by the learnedCommissioner of Income Tax under Section 263 of the Act. When https://hcservices.ecourts.gov.in/hcservices/ the penalty order was passed by the Commissioner of Income Tax,the Assessee filed the said appeal before the learned Tribunal,challenging the said order under Section 263 of the Act itselfand in that process, the delay occurred. He submitted that on 14March 2016 an opportunity was given to the Assessee to file theapplication seeking condonation of delay with affidavit. Thetime given by the learned Tribunal was very short and therefore,he could not file the application and the application came to bedismissed by the Tribunal on 29 April 2016. 4. The learned counsel for the Revenue Mr.Ravikumarsupported the impugned order and submitted that for want ofapplication filed before the learned Tribunal, for seekingcondonation of delay, the learned Tribunal was justified indismissing the appeal on account of huge delay of 1333 days. 5. Having heard the learned counsel for the parties, we donot find any substantial questions of law arising in the presentappeal. However, we are of the opinion that the learned Tribunalcould have condoned the delay upon application supported by anaffidavit if a reasonable ground for delay was made out by theAssessee. 6. Under these circumstances, we are inclined to allow thepresent appeal and remand the matter back to the learnedTribunal by giving an opportunity to the Assessee to file suchapplication for seeking condonation of delay, along withaffidavit of the Assessee or its counsel, subject to payment ofcost of Rs.25,000/- (Rupees Twenty Five Thousand only) by theAssessee to the respondent Revenue Department. 7. In case the cost of Rs.25,000/- (Rupees Twenty FiveThousand only) is deposited by the Assessee with the respondentAssessing Authority, within a period of four weeks from today,the impugned order dated 29 April 2016 shall stand set aside andthe matter shall stand restored to the learned Tribunal for theaforesaid Assessment Year 2007-08. 8. The Assessee may file his application seekingcondonation of delay along with affidavit, explaining thecircumstances and reasons for delay in filing appeal, which maybe considered by the learned Tribunal, in accordance with law. 9. With this observation, the appeal is disposed of in themanner indicated above. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar tar To 1.The Commissioner of Income Tax III,Chennai 2.The Income Tax Appellate Tribunal,C Bench, Chennai. 3.The Commissioner of Income Tax(A)-3,Chennai. 4.The Deputy Commissioner of Income tax,Company Circle-V(3), Chennai.5.The Assistant Commissioner of Income Tax,Company Circle - V(3), Chennai.6.The Income Tax Officer,(OSD)Company Circle V(3), Chennai. +1cc to Mr.T.Ravi Kumar, Advocate, S.R.No.27053 T.C.A.No.359 of 2017 LN(CO)KKV/01/09/2020 https://hcservices.ecourts.gov.in/hcservices/