Sri Avinash Osthwal (HUF), Bengaluru V. Income Tax Officer, Ward-2, , Bengaluru

ITA 09/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5488 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 01-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BALAKRISHNAN N
• Assessee Lawyers: AKSHAY MEHTA
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER APPEAL NO. APPELLANT RESPONDENT ASSESSMENT YEAR ITA NO. 07/BANG/2018 SHRI RAJU OSTHWAL (HUF), 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAFHR1558D THE INCOME TAX OFFICER, WARD 2, HOSPET 2012-13 ITA NO. 08/BANG/2018 SHRI RAMESH KUMAR OSTHWAL, 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAEPO9169J ITA NO. 09/BANG/2018 SHRI AVINASH OSTHWAL (HUF), 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAAHO5514R ITA NO. 10/BANG/2018 SHRI RAMESH KUMAR OSTHWAL (HUF), 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAAHO5513J ITA NO. 11/BANG/2018 SMT. MEENA OSTHWAL, 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004 PAN: AAEPO9168K ITA NO. 12/BANG/2018 SHRI RAJU OSTHWAL, 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAEPO9170H ITA NO. 19/BANG/2018 SMT. REKHA OSTHWAL, 67/15, 3 RD FLOOR, D FLAT, PRANAV APARTMENT, OPP BASAVANAGUDI POST OFFICE, K R ROAD, BASAVANAGUDI 560 004. PAN: AAEPO9167G APPELLANT BY : SHRI AKSHAY MEHTA, CA RESPONDENT BY : SHRI BALAKRISHNAN .N, ADDL. CIT (DR) DATE OF HEARING : 0 2 .0 3 .2018 DATE OF PRONOUNCEMENT : 0 2 . 0 3 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER ALL THESE 7 APPEALS ARE FILED BY DIFFERENT BUT CONN ECTED ASSESSEES AND THESE ARE DIRECTED AGAINST SEPARATE ORDERS OF LD. CIT(A)- 5, BANGALORE ALL DATED ITA NOS. 07 TO 12 & 19/BANG/2018 PAGE 2 OF 4 27.09.2017 FOR ASSESSMENT YEAR 2012-13. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE CASES, THE APPEAL BEFORE CIT (A) WA S FILED AFTER A DELAY OF 227 DAYS. IN ALL THESE CASES, THE ASSESSEE HAS MOVED AN APPLI CATION BEFORE CIT (A) FOR CONDONATION OF DELAY AND THE REASON GIVEN FOR THE D ELAY WAS THIS THAT THE MOTHER OF THE ASSESSEE WAS SUFFERING FROM SEVERE HE ALTH ISSUES WITH A CLOT IN THE BRAIN AND PARTIAL PARALYSIS AND SUBSEQUENTLY, S HE PASSED AWAY ON 01.12.2015 AND THE ASSESSEE WAS REQUIRED TO ATTEND HIS MOTHER DURING HER ILLNESS AND FOR THIS REASON, THE ASSESSEE WAS UNABL E TO ATTEND WORK AND HENCE, THE APPEAL COULD NOT BE FILED IN TIME. IN ALL THES E CASES, THE LD. CIT (A) DID NOT CONDONE THE DELAY IN FILING THE APPEAL AND DISMISSE D ALL THESE APPEALS WITHOUT ANY DECISION ON MERIT. IN ALL THESE CASES, APART F ROM VARIOUS GROUNDS ON MERIT, THIS IS ONE OF THE GROUNDS RAISED BEFORE THE TRIBUN AL THAT THE CIT (A) SHOULD HAVE CONDONED THE DELAY CAUSED DUE TO THE DEATH OF THE ASSESSEES BED-RIDDEN MOTHER AND SHIFTING OF THEIR PERMANENT PLACE OF RES IDENCE FROM HIS VILLAGE TO BANGALORE CITY. ALL THESE APPEALS WERE HEARD ON TH IS LIMITED ISSUE OF CONDONATION OF DELAY BY CIT (A). 3. THE LD. AR OF ASSESSEE SUBMITTED AN AFFIDAVIT OF VARIOUS ASSESSEES I.E. SHRI RAJU OSTHWAL, SHRI RAMESH KUMAR OSTHWAL, SHRI AVINA SH OSTHWAL, SMT. REKHA OSTHWAL W/O. SHRI RAJU OSTHWAL AND SMT. MEENA OSTHW AL W/O. SHRI RAMESH KUMAR OSTHWAL IN WHICH THE REASONS FOR DELAY IN FIL ING THE APPEAL BEFORE THE CIT(A) ARE NARRATED ALONG WITH THE DEATH CERTIFICAT E OF SMT. SHANTHI BAI OSTHWAL DATED 17.10.2016 AS PER WHICH SHE EXPIRED ON 01.12. 2015. IN COURSE OF HEARING, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THA T THE APPEALS WERE REQUIRED TO BE FILED BEFORE CIT (A) ON OR BEFORE 07.05.2015 BUT THESE WERE FILED ON 21.12.2015 WITH A DELAY OF 227 DAYS AND THE DELAY I S CAUSED BY THE ILLNESS OF THE MOTHER OF THE ASSESSEE SMT. SHANTHI BAI OSTHWAL WHO EXPIRED ON 01.12.2015 AND THEREFORE, WITHIN 20 DAYS, THE APPEA LS WERE FILED ON 21.12.2015. HE SUBMITTED THAT UNDER THESE FACTS, T HE CIT (A) SHOULD HAVE ITA NOS. 07 TO 12 & 19/BANG/2018 PAGE 3 OF 4 CONDONED THE DELAY IN FILING THE APPEALS. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THE DECISION OF CIT (A) REGARDING REJECTION OF THE REQUEST FOR CONDONATION OF DELAY IS CONTAINED IN PARA NO. 3 OF THE ORDER OF CIT (A). THIS IS ALMOST IDEN TICAL IN ALL THE CASES. THEREFORE, I REPRODUCE PARA 3 FROM THE ORDER OF CIT (A) IN THE CASE OF SHRI RAJU OSTHWAL IN ITA NO. 7/BANG/2018 AND THE SAME IS AS U NDER. 3. NOW GOING BY THE FACTS OF THIS CASE, THE APPELL ANT HAS STATED THAT ALL HIS ACCOUNTS ARE TAKEN CARE BY HIS BROTHER SRI RAMESH KUMAR OSTHWAL WHOSE MOTHER WAS SUFFERING FROM SEVERE HEAL TH ISSUES WITH A CLOT IN THE BRAIN AND PARTIAL PARALYSES ANDSUBSEQ UENTLY SHE PASSED AWAY ON 01/12/2015 AND AS HE HAD TO ATTEND TO HIS M OTHER DURING HER ILLNESS HE WAS UNABLE TO ATTEND WORK. ALSO FOR HIS MOTHER BETTER TREATMENT AND IMPROVED ATTENDANCE HE HAD SHIFTED TO BENGALURU ALONG WITH HIS FAMILY DURING THIS PERIOD WHICH WAS ALSO A REASON THAT HE COULD NOT ATTEND THE WORK AND WHICH CAUSED A DELAY IN FILING OF APPEAL AND AMIDST ALL THESE, THE MATTER OF FILIN G OF APPEAL AGAINST THE ORDER PASSED HAS COMPLETELY ESCAPED HIS ATTENTI ON. IT IS THE FACT THAT THE APPELLANT DID NOT FILE THE APPEALS BEFORE THE FIRST APPELLANT AUTHORITY WITHIN THE DUE DATE AND IT WAS FILED AFTE R THE DELAY OF 227 DAYS FOR THE YEAR UNDER CONSIDERATION. THE REASONS STATED IN HIS SUBMISSIONS THAT HIS BROTHER COULD NOT ATTEND THE W ORK DUE TO HIS MOTHER'S ILLNESS CANNOT BE ACCEPTED. FURTHER THE RE ASONS GIVEN BY THE APPELLANT ARE NOT FALLING IN ANY OF CATEGORIES AS ILLUSTRATED IN THE CASE LAWS MENTIONED IN THE ABOVE PARES. THEREFORE, I AM OF THE CONSIDERED OPINION THAT THE REASONS GIVEN ARE NOT A TTRIBUTABLE TO ANY BONAFIDIES AND THEREFORE, THE APPELLANT IS NOT DESE RVED FOR ANY CONDONATION OF DELAY U/S 249(3) OF THE IT ACT. 5. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT(A), IT IS SEEN THAT ALL THESE FACTS WERE VERY MUCH BEFORE CIT(A) THAT DURIN G THE PERIOD WHEN THE APPEAL WAS REQUIRED TO BE FILED BY ASSESSEE, THE MO THER OF THE ASSESSEE WAS SEVERELY ILL WITH A CLOT IN THE BRAIN AND PARTIAL P ARALYSIS AND SHE ULTIMATELY EXPIRED ON 01.12.2015 AND THEREAFTER, THE APPEALS W ERE FILED WITHIN 20 DAYS I.E. ON 21.12.2015 AS NOTED BY CIT(A) ALSO ON PAGE NO. 1 OF HIS ORDER IN ALL THESE CASES. CONSIDERING THESE FACTS, I FEEL THAT THE DE LAY OF 227 DAYS IN FILING THE APPEAL BEFORE CIT(A) IN ALL THESE CASES SHOULD HAVE BEEN CONDONED BY CIT(A) AND HE SHOULD HAVE DECIDED THE ISSUE ON MERIT IN AL L THESE CASES BUT SINCE HE HAS NOT DONE SO, I SET ASIDE THE ORDER OF CIT(A) AN D RESTORE THESE MATTERS BACK ITA NOS. 07 TO 12 & 19/BANG/2018 PAGE 4 OF 4 TO HIS FILE IN ITS ENTIRETY WITH THE DIRECTION THAT HE SHOULD DECIDE ALL THESE APPEALS ON MERIT BY CONDONING THE DELAY IN FILING THESE APP EALS BECAUSE I FEEL THAT IN THE FACTS OF THE PRESENT CASE, THE REASONS FOR DELAY AR E ACCEPTABLE AS REASONABLE CAUSE AND HENCE, I CONDONE THE DELAY IN ALL THESE C ASES AND DIRECT THE CIT(A) TO DECIDE ALL THESE APPEALS ON MERIT. 6. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR AT THIS STAGE REGARDING MERIT OF THE ISSUE. HENCE I DO NOT MAKE ANY COMMEN T ON THE MERIT OF THE CASE. 7. IN THE RESULT, ALL THE 7 APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 2 ND MARCH, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.