Kajaria Investment & Properties Pvt. ... vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH : KOLKATA

[Before Hon'ble Sri Mahavir Singh, JM & Hon'ble Sri B.P.Jain, AM]

I.T.A No. 2024/Kol/2010 Assessment Year : 2007-08 I.T.O., Ward-4(4) -vs.- M/s.Kajaria Investment & Kolkata Properties Pvt. Ltd.,Kolkata [PAN : AACCK 4318 G) (Appellant) (Respondent) For the Appellant : Shri P.K.Chakraborty, JCIT For the Respondent : Shri Satnaliwala, FCA

Date of Hearing : 09.04.2015 Date of Pronouncement : 20.04.2015. ORDER

Per Shri B.P.Jain, AM

This appeal of the Revenue arises from the order of ld.CIT(A)-IV, Kolkata dated 23.07.2010 for Assessment Year 2007-08.

2. The revenue has raised the following grounds of appeal :

"1. That on the facts and circumstances of the case, Ld.CIT(A), Kolkata has erred in law and facts of the case by not holding the assessee as owner of the Building though ownership was clearly vested on the assessee as per the deed of conveyance.

2. That on the facts and circumstances of the case, Ld.CIT(A), Kolkata has also erred in law and facts of the case by holding that provision of section 50C is not applicable though there was a transfer of capital asset in the nature of land or building or both.

3. That on the facts and circumstances of the case, Ld. CIT(A), Kolkata has further erred in law and facts of the case by stating that there was a transfer of capital asset in the nature of tenancy that though there was no such agreement in that respect between the assessee and the land owners.

4. That on the facts and circumstances of the case, Ld.CIT(A), Kolkata has finally erred in law and facts of the case by not considering the fact that the assessee should be treated as deemed owner in respect of the land as per provision of section 27(iiib) r.w.s. 269UA(f) as it was given on lease for more than 12 years.

5. That the appellant craves for leave to add, delete or modify any of the grounds of appeal before or at the time of hearing."

2 ITA No.2024/Kol/2010 M/s.Kajaria Investment & Properties Pvt. Ltd.

A.Yr.2007-08

3. The ld. Counsel for the assessee, at the outset, raised a preliminary objection that there is a delay in filing the appeal by the revenue by 16 days and there is no sufficient cause established by the revenue for condonation of delay in view of the petition and the affidavit filed by the revenue. Therefore the appeal filed by the revenue is not maintainable and the same may be dismissed.

4. The ld. DR, on the other hand, argued that proper application for condonation of delay has been filed along with the affidavit where single day's delay has been explained and therefore prayed to condone the delay.

5. We have heard the rival contentions and perused the facts of the case. It will be pertinent to reproduce the petition for condonation of delay filed by the revenue and the affidavit as under :-

"The last date of filing second appeal against the Appellate Order vide Order No.132/CIT(A)-IV/09-10 dated 23.07.10 in the case of M/s/. Kajaria Investment & Properties Pvt. Ltd. for the A.Y. 2007-08 was on 25.10.10 but it could not be filed for the following reasons :

Date Reason From 25.10.10 to 07.11.10 Approval of filing second appeal was not Communicated from the office of the Ld. CIT 08.11.10 Approval of filing second appeal received. 09.11.10 The paper were being processed for filing 10.11.10 The paper are being filed for second appeal.

From the above facts, it is evident that delay was not attributable to this charge. So the delay is not deliberate and the respondent do not gain in any manner by delay committed.

In view of the above, the above delay may be condoned.

Sd/-

(Debashis Sensarmal) Income Tax officer Ward 4(4) Kolkata"

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A.Yr.2007-08

"BEFORE THE NOTARY PUBLIC AT KOLKATA AFFIDAVIT I, SMT SARBARI DAS, daughter of late Narayan Chandra Sen, working as Income tax Officer, Ward-4(4), Kolkata, P-7, Chowringhee Square, Kolkata-700069, solemnly affirm that the last date of filing of Second Appeal vide ITA No.2024(Kol)/2010, Bench - "C" in the case of M/s. Kajaria Investment & Properties Pvt. Ltd. for the Assessment year 2007- 08 was on 25.10.2010. But could not filed for the following reasons :

REASONS :

26.10.2010 to 29.10.2010 Dealing Clerk absent 30.10.2010 & 31.10.2010 Being Saturday & Sunday 01.11.2010 to 04.11.2010 Xerox machine out of order 05.11.2010 Holiday 06.11.2010 & 07.11.2010 Saturday & Sunday 08.11.2010 & 09.11.2010 Papers were being processed 10.11.2010 Appeal filed.

That the delay is not deliberate and the respondent does not gain in any manner by delay committed.

That there was sufficient causes for the delay as stated above for it is prayed that the same may be condoned.

Sd/-

Sarbari Das Deponent"

5.1. As per section 253(3) of the Act every appeal u/s 253(1) or section 253(2) has to be filed within sixty days from the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be. In the present case it appears that the order sought to be appealed against has been communicated on 26.10.2010 and the Revenue has filed the appeal on 10.11.2010 after 76 days of the order sought to be appealed against was communicated to the Revenue. The revenue in the condonation petition and the affidavit reproduced herein above, though has not spoken a word in the petition as well as in the affidavit about first 60 days delay but has mentioned about the cause for delay of 16 days as dealing clerk's absence, Xerox machine out of order, papers being processed and the holidays. These causes submitted by the revenue are not the sufficient cause and do not explain 16 days delay. In view of the decision of Hon'ble Supreme Court in the case of Collector, Land 3 4 ITA No.2024/Kol/2010 M/s.Kajaria Investment & Properties Pvt. Ltd.

A.Yr.2007-08 Acquisition vs MST Katiji & Others 167 ITR 471 the condonation petition filed by the revenue is dismissed.

6. In the result the appeal of the revenue is dismissed.

Order pronounced in the Court on 20.04.2015.

Sd/- Sd/- [ Mahavir Singh ] [ B.P.Jain ] Judicial Member Accountant Member

Dated : 20.04.2015.

[RG PS]

Copy of the order forwarded to:

1.M/s. Kajaria Investment & Properties Pvt. Ltd., 32, Armenian Street, Kolkata-700001.

2. I.T.O., Ward-4(4), Kolkata

3. CIT(A)-IV, Kolkata 4. CIT Kolkata.

5. CIT(DR), Kolkata Benches, Kolkata.

True copy

By Order

Asstt.Registrar, ITAT, Kolkata Benches

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A.Yr.2007-08

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