2016 (7) TMI 1653 - AT - Income Tax

Action of the CIT(A) in dismissing its appeal by holding that the same was barred by limitation - Penalty u/s 271(1)(c) - As mentioned appeal was barred by 361 days and that the assessee had not filed any condonation petition/affidavit in this respect but till date no remedial action has been taken by the assessee - HELD THAT - From the pleadings of the assessee it clearly reveals that in fact the assessee was not aggrieved by the quantum additions rather the assessee was aggrieved on account of levy of penalty that is way the assessee had chosen not to file the appeal against the quantum additions. If on a subsequent occasion some senior counsel advised the assessee to file the appeal, that cannot be a sufficient cause for condonation of delay. We are surprised rather shocked to see that the concerned Chartered Accountant has deposed in the affidavit that he was getting feelers from the AO that the AO would not levy penalty if the assessee would not contest the quantum additions and that it was he who advised the assessee not to file the appeal, even, after receipt of notice regarding the initiation of penalty the proceedings under section 271(1)(c) of the Act. He also deposed before the Ld. CIT(A) in his affidavit that the appeal was not filed because of his advice and that the delay may be condoned. We feel it difficult to digest that such an advice may be given to an assessee by a Chartered Accountant and then that Chartered Accountant could affirm that he in fact has given such a wrong advice to the assessee by way of deposition in an affidavit. Whatsoever might have been advice of the Chartered Accountant of the assessee, firstly the assessee in fact was not aggrieved by the order under section 143(3) but of the penalty order under section 271(1)(c); secondly the assessee has not shown sufficient cause for condonation of delay in filing the appeal before the Ld. CIT(A), hence, there is no infirmity in the order of the Ld. CIT(A) in rejecting the application for condonation of delay. Even no application for condonation of delay has been filed before this Tribunal. No reasons/circumstances for filing the appeal with a delay of 361 days has been explained before us. It seems that the assessee again failed to take advice from his senior counsel even after dismissal of his appeal for the same reason by the Ld. CIT(A). Hence, appeal before this Tribunal is barred by limitation. In view of this, neither we find any reason to interfere with the order of the Ld. CIT(A) in dismissing the appeal before him being barred by limitation nor we find any reason or sufficient cause to condone the delay in filing the appeal before this Tribunal. Hence, the appeal of the assessee is dismissed in both courts.

Summary

Issues Involved:
1. Appeal against the order of the Commissioner of Income Tax (Appeals) regarding limitation.
2. Delay in filing the appeal by the assessee.
3. Condonation of delay in filing the appeal.
4. Adequacy of reasons for not filing the appeal in time.
5. Role of the Chartered Accountant in advising the assessee.

Analysis:
1. The appeal was filed by the assessee against the order of the Commissioner of Income Tax (Appeals) (CIT(A)) for the assessment year 2009-10. The main issue raised in the appeal was the dismissal of the appeal by the CIT(A) on the grounds of being time-barred by 361 days.

2. The assessee did not appear before the Tribunal despite notice, and the appeal was found to be time-barred with no application for condonation of delay filed along with the appeal. The Registry issued a defect notice highlighting the delay, but no action was taken by the assessee to rectify the situation.

3. The assessee argued that the delay in filing the appeal was due to the advice of their Chartered Accountant/authorized representative. The Chartered Accountant advised against filing an appeal initially, believing that cooperation in assessment proceedings could prevent penalty imposition. However, when the penalty was levied, a different counsel advised filing an appeal, resulting in the delay. The CIT(A) found the reasons insufficient for condonation of the delay and dismissed the appeal.

4. The Tribunal noted that the reasons provided by the Chartered Accountant were contradictory and lacked justification for the delay. The Tribunal expressed surprise at the advice given and the subsequent actions taken by the Chartered Accountant, ultimately leading to the dismissal of the appeal by both the CIT(A) and the Tribunal.

5. The Tribunal concluded that the assessee was primarily aggrieved by the penalty order rather than the quantum additions, which led to the delay in filing the appeal. The lack of sufficient cause for the delay and the failure to provide adequate reasons for the delay resulted in the dismissal of the appeal by both the CIT(A) and the Tribunal. The appeal was ultimately dismissed by the Tribunal due to being time-barred and lacking justification for the delay in filing.

In summary, the appeal by the assessee against the order of the CIT(A) was dismissed by the Tribunal due to being time-barred by 361 days, with no sufficient cause presented for the delay in filing the appeal. The advice given by the Chartered Accountant was found to be inadequate to justify the delay, leading to the dismissal of the appeal in both instances.