Case Law Details
Devaraj Construction Vs ITO (ITAT Chennai)
In this case the reason for the delay in filing the appeal was that Shri S. Muthiah, F.C.A. died on 02.03.2015 and because of that there is no coordination between the assessee and the C.A. firm. The appellate order passed by the ld. CIT(A) dated 28.12.2017. The assessee knows very well that his C.A. died and he filed the appeal with a delay of 407 days in filing the appeal. Even before the ld. CIT(A), the assessee filed the appeal with a delay of 174 days in filing the appeal and in the condonation petition, the assessee has stated the reason that the he has entrusted the work to the auditor, the firm was under the impression that the appeal could have been filed against the assessment order. When the assessee received a show cause notice for payment of tax, the assessee firm has made enquiry with the auditor office and it has to come to the knowledge of the assessee that no appeal has been filed against the assessment. From the above, it is very clear that the assessee was not serious about pursuing the appeal either before the ld. CIT(A) or before the ITAT. By considering the above facts and circumstances of the case, we are of the considered opinion that there is no sufficient cause to condone the delay and accordingly, the petition for condonation of delay is rejected. Since the delay of 407 days in filing the appeal was not condoned, the appeal filed by the assessee before the Tribunal is not maintainable and accordingly, the appeal filed by the assessee is dismissed.
FULL TEXT OF THE ORDER OF ITAT CHENNAI
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 2 (I/c), Madurai dated 28.12.2017 relevant to the assessment year 2008-09.
2. The appeal filed by the assessee was time barred by 407 days in filing the appeal before the Tribunal. In support of an affidavit, the assessee has filed a petition for condonation of delay in filing the appeal, wherein, the assessee has stated as under:
The petitioner avers that the income tax matters were dealt with by Shri. S.Muthiah, F.C.A., all along. He died on 02.03.2015 as a result of which there was no proper coordination between his office and your appellant firm. There was no proper guidance available to your petitioner after his death regarding income tax matters.
Since the firm was dissolved, there was no communication among the partners. Since there was loss, partners left the place of business. There was no working partner.
The Petitioner did not know anything about income tax matters much less filing of appeal before the Income Tax Appeal Tribunal, Madras, with in the stipulated time.
The petitioner submits that the firm did not have any asset and hence there was no proper understanding between the partners. It is also submitted that the firm stopped its business on 01.04.2018 itself. There was misunderstanding between the partners and all the other partners are not financially well and hence they did not evince any interest in income tax matters. But the papers were all given to the CA, who unfortunately did not attend the income tax affairs and finally died on 02.03.2015.
Since I am a heart patient, I do not remember who has received the appeal order and what further steps I should take when all the papers were with late C.A’s office. The petitioner submits that the delay is neither wilful nor wanton but due to circumstances beyond the control of the appellant petitioner. If the delay is not condoned and the appeal is not disposed off on facts and circumstances of the case, the firm would be put to considerable hardship arid injury. The condonation of delay in filing the appeal would give an opportunity to the appellant firm to address the issue and cancel the addition, which would otherwise be fastened to the appellant.
The Managing Partner Shri. Devaraj was all along a heart patient. He has undergone heart byepass surgery in 2000 and again in 2014 and stents were implanted. Hence, he could not attend income tax matters then and there. The partners do not have adequate knowledge about filing of appeal before the ITAT.
Only when the department started pressurising for payment of demand, the managing partner consulted tax practitioners and they advised to file appeal before the Honourable Tribunal as the reopening of assessment after a period of four years is prima facie incorrect as there was no failure to disclose the material facts fully and truly at the time of original assessment.
It is, therefore, humbly prayed that the Honourable Tribunal may be pleased to consider the submission made supra and condone the delay in appeal, hear and dispose it off the appeal on merit and then render justice.
3. From the above, the reason for the delay in filing the appeal was that Shri S. Muthiah, F.C.A. died on 02.03.2015 and because of that there is no coordination between the assessee and the C.A. firm. The appellate order passed by the ld. CIT(A) dated 28.12.2017. The assessee knows very well that his C.A. died and he filed the appeal with a delay of 407 days in filing the appeal. Even before the ld. CIT(A), the assessee filed the appeal with a delay of 174 days in filing the appeal and in the condonation petition, the assessee has stated the reason that the he has entrusted the work to the auditor, the firm was under the impression that the appeal could have been filed against the assessment order. When the assessee received a show cause notice for payment of tax, the assessee firm has made enquiry with the auditor office and it has to come to the knowledge of the assessee that no appeal has been filed against the assessment. From the above, it is very clear that the assessee was not serious about pursuing the appeal either before the ld. CIT(A) or before the ITAT. By considering the above facts and circumstances of the case, we are of the considered opinion that there is no sufficient cause to condone the delay and accordingly, the petition for condonation of delay is rejected. Since the delay of 407 days in filing the appeal was not condoned, the appeal filed by the assessee before the Tribunal is not maintainable and accordingly, the appeal filed by the assessee is dismissed.
4. In the result, the appeal filed by the assessee is dismissed.
Order pronounced on 19th October, 2022 at Chennai.
