Shri Ravindra Kumar Sethia, Bangalore V. The Income Tax Officer, Ward- 3(2)(3), Bangalore

ITA 102/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0022 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 23-03-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRATHIBA R
• Keywords: Reasonable cause; Condonation of delay
• Section: 271(1)(c); 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER IT A NO . 102/BANG/2021 ASSESSMENT YEAR : 2014 - 15 SHRI RAVINDRA KUMAR SETHIA, NO.5, MYSORE ROAD CROSS, NAYANDAHALLI POST, DEVAVATIGE, MYSORE ROAD, DEVATIGE RAMANAHALLI, BANGALORE 560 039. PAN: AEFPS 4106L VS. THE INCOME TAX OFFICER, WARD 3(2)(3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S MT. PRATHIBA R., ADVO CATE RESPONDENT BY : SH RI KA NNAN NARAYANAN, JT. C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 2 3. 0 7 .2021 DATE OF PRONOUNCEMENT : 23 .0 7 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THE ASSESSEE FILED EARLY HEARING PETITION DATED 1 2.7.2021 SEEKING EARLY HEARING OF THE APPEAL. DURING THE COURSE OF HEARING THIS PETITION, WE NOTICED THAT THE ISSUE IN DISPUTE IS WITH REGARD TO CONDONATION OF DELAY BY THE CIT(APPEALS) DUE TO WHICH HE DISMISSED THE APPE AL OF ASSESSEE AS UNADMITTED SINCE THERE WAS A DELAY OF 40 DAYS IN FI LING THE APPEAL BEFORE THE CIT(A). HENCE WE PROCEEDED TO HEAR AND ADJUDIC ATE THE APPEAL ITSELF, INSTEAD OF EARLY HEARING. ITA NO.102/BANG/2021 PAGE 2 OF 5 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILE D APPEAL BELATEDLY BY 40 DAYS BEFORE THE CIT(APPEALS) CHALLENGING THE PEN ALTY ORDER OF THE AO U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 [THE ACT ]. THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDA VIT BEFORE THE CIT(A) EXPLAINING THE REASONS FOR THE DELAY. THE CIT(A) D ISMISSED THE APPEAL ON THE REASON THAT THERE WAS NO SUFFICIENT OR GOOD REA SON FOR THE DELAY IN FILING THE APPEAL BY 40 DAYS. AGAINST THIS, THE ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL. 3. HOWEVER, THERE IS A DELAY OF 688 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL ALSO. THE LD. AR HAS FILED PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT OF SHRI MANOJ KUMAR MOYAL, CA AS FOL LOWS:- DO HERBY SOLEMNLY AFFIRM AND STATE AS FOLLOWS: 1. I AM THE AUTHORISED REPRESENTATIVE CA FOR THE AP PELLANT HEREIN AND AS SUCH BEING CONVERSANT WITH THE FACTS OF THE CASE, I SWEAR TO THIS AFFIDAVIT. 2. THE ABOVE INCOME TAX APPEAL IS FILED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), DATED 05. 03.2019. THE SAID ORDER WAS SERVED ON THE APPELLANT ON 06.03 .2019 AND ACCORDINGLY THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 05.05.2019. HOWEVER, THE APPEAL WAS FILED ON 23.03. 2021 VIDE ITA NO. ITA 102/BANG/2021 CAUSING A DELAY OF 689 DA YS. THE REASON FOR THE DELAY IS EXPLAINED BELOW: 3. THE ORDER OF CIT(A) WAS RECEIVED BY ME. MEANWHIL E, MY GRAND-FATHER WAS SUFFERING FROM AGE RELATED ILLNESS AND LATER, HE HAD PASSED AWAY ON 08.05..2019. LATER, MY FATHER WA S FACING CRITICAL HEALTH ISSUES AND IT WAS NECESSARY FOR ME TO TAKE CARE OF HIM. HIS HEALTH CONDITION REQUIRED MY CONSTANT ATTE NTION AND VISITS TO DOCTORS AND HOSPITALS ON A REGULAR BASIS AND LATER HE ALSO PASSED AWAY ON 09.01.2020 AND I WAS TOTALLY DISTURB ED AND COULD NOT CONCENTRATE ON MY WORK. FURTHER, THE APPELLANT HAD CONTACTED ME BUT I COULD NOT ADVISE HIM TO GO FOR AN APPEAL. FURTHER, DUE TO COVID-19 PANDEMIC THE LOCKDOWN WAS IMPOSED AND I WA S UNABLE TO LOOK INTO THE MATTER OF APPEAL AND THEREB Y I DID NOT FILE ITA NO.102/BANG/2021 PAGE 3 OF 5 THE APPEAL WITHIN THE TIME-LIMIT PRESCRIBED. LATER, I ADVISED THEM TO GO FOR APPEAL BEFORE THE HON'BLE ITAT AND MY COL LEAGUE HAS DRAFTED THE APPEAL AND THE APPEAL IS FILED. ACCORDINGLY, THIS APPEAL IS FILED BEFORE THE HON'BL E TRIBUNAL WITHOUT FURTHER LOSS OF TIME AND THE DELAY OF 689 D AYS IN FILING THE APPEAL IS ONLY ON ACCOUNT OF A REASONABLE CAUSE AS AFORESAID. ACCORDINGLY, IT IS PRAYED THAT THE DELAY MAY KINDLY BE CONDONED AND APPEAL MAY KINDLY BE ADMITTED AND DISPOSED OF O N MERITS. 4. IN OUR OPINION, THE REASONS FOR DELAY POINTED O UT BY THE LD. AR IS SUFFICIENTLY EXPLAINED THAT ASSESSEE HANDED OVER TH E APPEAL PAPERS TO THE CA. MEANWHILE HIS GRANDFATHER WAS ILL AND PASSED A WAY ON 8.5.2019. LATER, HIS FATHER WAS IN CRITICAL CONDITION WHO EXP IRED ON 9.1.2020. AFTER THAT THERE WAS COVID 19 PANDEMIC WHICH RESULTED IN DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN OUR OPINION, THERE IS REASONABLE CAUSE IN THE REASONS EXPLAINED BY THE LD. AR FOR THE DELAY IN FI LING THE APPEAL BEFORE THE TRIBUNAL. ACCORDINGLY, BY PLACING RELIANCE ON THE DECISION OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI, 167 ITR 471 (SC) , WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL AND ADMIT THE APPEAL FOR ADJUDICATION. 5. NOW THE QUESTION IS THAT THERE WAS A DELAY OF 48 DAYS IN FILING THE APPEAL BEFORE THE CIT(APPEALS) WHICH WAS NOT CONDON ED BY THE CIT(APPEALS). THE LD. AR EXPLAINED THE REASONS FOR DELAY IN FILING THE APPEAL BEFORE THE CIT(APPEALS) THAT THE ASSESSEES WIFE SMT. SARLA WAS SICK AND HOSPITALIZED W.E.F. 20.3.2017 TO 28.3.2017 . THE ASSESSEE WAS REQUIRED TO FILE THE APPEAL BEFORE THE CIT(APPEALS) ON OR BEFORE 6.7.2017. AFTER HOSPITALIZATION, THE ASSESSEES WIFE REQUIRED REPEATED MEDICAL TREATMENT WHEREIN THE ASSESSEE WAS FULLY ENGAGED IN TAKING CARE OF HER. WE ARE OF THE OPINION THAT THE DELAY IN FLING BY TH E APPEAL BEFORE THE CIT(APPEALS) HAS TO BE CONDONED. THIS TRIBUNAL IN ITA NOS.2787 TO 2792/BANG/2018 (SMC BENCH) IN THE CASE OF THE GRADUATES CO-OPERATIVE SOCIETY LTD. CONSIDERED THIS ISSUE AND VIDE ORDER DATED 21.12.20 18 WHILE ITA NO.102/BANG/2021 PAGE 4 OF 5 CONSIDERING CONDONATION OF DELAY OF 383 & 402 DAYS DELAY IN FLING THE APPEALS HELD AS UNDER:- 8. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE R IVAL SUBMISSIONS. AT THE OUTSET, I OBSERVE THAT THE HON BLE SUPREME COURT, IN THE CASE OF MST. KATIJI (SUPRA), HAS EXPL AINED THE PRINCIPLES THAT NEED TO BE KEPT IN MIND WHILE CONSI DERING AN APPLICATION FOR CONDONATION OF DELAY. THE HONBLE A PEX COURT HAS EMPHASIZED THAT SUBSTANTIAL JUSTICE SHOULD PREV AIL OVER TECHNICAL CONSIDERATIONS. THE COURT HAS ALSO EXPLAI NED THAT A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING THE A PPEAL LATE. THE COURT HAS ALSO EXPLAINED THAT EVERY DAYS DELAY MUS T BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SH OULD BE TAKEN. THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE AND PRAGMATIC MANNER. IN THE CASE OF SHAKUNTALA HEG DE, L/R OF R.K. HEGDE V. ACIT, ITA NO.2785/BANG/2004 FOR THE A .Y. 1993-94, THE TRIBUNAL CONDONED THE DELAY OF ABOUT 1 331 DAYS IN FILING THE APPEAL WHEREIN THE PLEA OF DELAY IN FILI NG APPEAL DUE TO ADVICE GIVEN BY A NEW COUNSEL WAS ACCEPTED AS SUFFI CIENT. THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. ISRO SATELLITE CENTRE, ITA NO. 532/2008 DATED 28.10.2011 HAS CONDONED THE DELAY OF FIVE YEARS IN FILING APPEAL B EFORE THEM WHICH WAS EXPLAINED DUE TO DELAY IN GETTING LEGAL A DVICE FROM ITS LEGAL ADVISORS AND GETTING APPROVAL FROM DEPARTMENT OF SCIENCE AND PMO. IN THE AFORESAID DECISION, THE HONBLE COU RT FOUND THAT THE VERY LIABILITY OF THE ASSESSEE WAS NON-EXISTENT AND THEREFORE CONDONED THE DELAY IN FILING APPEAL. KEEPING IN MIN D THE AFORESAID PRINCIPLES, I SHALL CONSIDER THE CLAIM OF THE ASSESSEE IN THE PRESENT CASE. 9. ADMITTEDLY, THE DELAY WAS DUE TO ADVICE GIVEN BY THE COUNSEL WHO APPEARED ON BEHALF OF THE ASSESSEE BEFO RE THE AO AND CIT(A) NOT TO FILE APPEAL AND ON ADVICE FROM A PROFESSIONAL FROM A NEW STATUTORY AUDITOR APPOINTED FOR FY 2017- 18, TO FILE APPEALS, THE APPEALS WERE FILED. I FIND THAT THERE HAS BEEN NO WILLFUL NEGLECT ON THE PART OF THE ASSESSEE. IN SUC H MATTERS THE ADVICE OF THE PROFESSIONAL WOULD BE THE POINT OF TI ME AT WHICH THE ASSESSEE WOULD BEGIN TO EXPLORE THE OPTION OF EXHAU STING ALL LEGAL REMEDIES. I AM ALSO OF THE VIEW THAT BY CONDO NATION OF DELAY THERE IS NO LOSS TO THE REVENUE AS LEGITIMATE TAXES PAYABLE IN ACCORDANCE WITH LAW ALONE WOULD BE COLLECTED. I THE REFORE ACCEPT ITA NO.102/BANG/2021 PAGE 5 OF 5 THE REASON GIVEN FOR CONDONATION OF DELAY IN FILING THE APPEALS. THE DELAY IN FILING THE APPEALS IS ACCORDINGLY COND ONED. 6. IN OUR OPINION, IN THE PRESENT CASE THERE WAS SU FFICIENT REASON FOR THE DELAY IN FILING THE APPEAL BY 40 DAYS BEFORE THE CI T(APPEALS). ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE TH E CIT(APPEALS), SINCE THE CIT(APPEALS) HAS NOT DECIDED THE ISSUE ON MERIT S, WE ARE INCLINED TO REMIT THE ISSUE TO THE FILE OF CIT(APPEALS) FOR FRE SH CONSIDERATION AND DECISION ON MERITS IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JULY, 2021. SD/- SD/- ( N V VASUDEV AN ) ( CHANDRA POOJARI ) VICE PRESIDENT ACCOUNTANT MEMBER BANGALORE, DATED, THE 23 RD JULY, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.