TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 643
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....spectively for the two successive years under reference. The same were processed under section 143(1) of the Income Tax Act, 1961 (the Act), raising demands, including interest, at Rs. 28.47 lakhs and Rs. 37.75 lakhs for the two consecutive years respectively. The assessee admittedly did not act thereon, stating that it was 'awaiting' - whatever that would mean; Sh. Jojo, the learned counsel for the assessee, being also unable to explain us the same, orders u/s. 143(3) of the Act. The communication regarding recovery of the outstanding demand was subsequently received on 28.05.2019 which, as stated, led to it, acting with alacrity, filing appeals, for both the years, with the ld. CIT(A) on 07.06.2019. And, therefore, with a delay of 3 years 2 months and 2 years and 2 months respectively, which were accordingly dismissed as not maintainable on a finding of gross negligence. Reliance stands placed on decisions in: - Jayvant Vaghela v. ITO [2013] 40 taxmann.com 491 (Guj) - Abzony Safety Glass Ltd. v. CIT [2012] 344 ITR 471 (P&H) - Mountview Exports(P.) Ltd. v. CIT [2002] 258 ITR 46 (Cal) - CIT v. Rammohan Kabra [2002] 257 ITR 773 (P&H) 3. Before us, it was submitted by Shri J....
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....gistration u/s. 12AA of the Act, again, only on 06.06.2019. 4. We have heard the parties, and perused the material on record, giving out careful consideration to the matter. 4.1 The first issue before us is if the assessee's appeal/s before the ld. CIT(A), being delayed by 3 years (2 years) and 2 months (2 months), is maintainable. In our clear view: not. No reason, much less plausible, even as the law provides for sufficient cause being shown and, further, over the period of delay, for it to be condoned, has been furnished, either before him, or even before us, for us to disturb his finding of it being a case of gross negligence. The assessee stating of having received demand notices on 29.05.2019 is false as the Intimations, which are by law deemed as notices of demand, were received in March, 2016 and March, 2017 for the two successive years respectively. If the assessee could act on the communications dated 29.05.2019, it could equally do so on the receipt of Intimation/s. Further, it stating that it was 'awaiting' assessment order u/s. 143(3) of the Act - whatever that may mean and, which Sh. Jojo could not explain us, is as ludicrous as it can get; nay, misconceived. It cou....
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....ion. 4.3 The two ingredients necessary for condoning the delay, which could only be the result of a positive, affirmative action, i.e., (a) proof of absence of negligence, and (b) proof of satisfactory level of diligence, are found completely missing in the instant case. It is apparent that the assessee is merely raising multiple pleas, de hors the facts of the case and law in the matter, in the hope that any one may 'work'. It is only a plea made per Form 35, supported by affidavits, i.e., where so required by the first appellate authority, that can be taken cognizance by us as the second appellate authority reviewing his decision qua non-condonation of delay in further appellate proceedings. The delay, which extends to 26 months and 36 months for the two years respectively, is wholly unexplained and is a clear case of gross negligence. We find no reason to interfere in the matter and, accordingly, confirm the impugned order on this aspect. 4.4 Be that as it may, this cannot be regarded as the end of the matter. True, the assessee has not invoked the appropriate proceedings under the Act or moved the Hon'ble High Court under it's extraordinary jurisdiction, seeking issu....
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....ng relief, and in this regard, departmental officers should take initiative in guiding the tax payer where proceedings or other particulars before them indicates that some refund or relief is due to him. The Revenue cannot take advantage of the ignorance of the assessee as to his rights. Similar instructions stand issued by the Hon'ble Courts whenever such instances have come up before them for their consideration (Parekh Brothers v. CIT [1984] 150 ITR 105 (Ker);CIT v. K.N. Oil Industries [1983] 142 ITR 13 (MP)). It would in this context be relevant to reproduce from a recent decision by the Cochin Bench (Changanacherry Co-op. ARDB Ltd. v. ITO, in ITA 939/Coch/2022, dated 16/4/2024), wherein, again, the assessee was not allowed claim u/s. 80P due to the improper filling the return form, wholly discountenanced by the Tribunal: '6. Our first observation in the matter is that the very fact that the assessee includes the claim for deduction u/s. 80P in the Schedule 'BP' relating to computation of income, implies that it regards it's relevant income as taxable, i.e., forming part of gross total income, and claims deduction u/s. 80P there-against. The mismatch in it's return inasmu....
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....to be computed in the manner applicable therefor, and it returning income in Form 5, which is for returning business income, is surely incorrect, unless, perhaps, it is a case of business undertaking itself being the property held under trust, and the business incidental to the attainment of it's objects. Could, in any case, as afore-questioned, returning income in a wrong Form, or incorrectly, result in converting a loss into income? Clearly not, inasmuch as the same can only be in terms of provisions of the Act. The processing of return itself validates the same, i.e., of it being in the proper Form and, in the very least, of it being not an irrelevant consideration. Where the default in not filing the return in the prescribed Form is regarded as material, which we state to carry the argument to its logical conclusion, there is no return of income in the first place. The question of processing it, and raising demand on that basis, does not arise. Clarifying once again, if that is necessary, that the returns in Form 7 are valid and proper returns of income. Nothing, in any case of the matter, as afore-explained, turns thereon. In Sum 5.1 In view of the foregoing, we only conside....