Shri Vimal Grover, Haryana V. DCIT, Haryana

ITA 1032/DEL/2011

• Counselvise Citation: 103221514 RSA 2011
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 21-04-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 24-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILESH GUPTA
• Assessee Lawyers: ROHIT KAURA
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 1032/DEL/2011 (ASSESSMENT YEAR : 2005-06) VIMAL GROVER, VS. THE D.C.I.T., 7-TILAK MARKER, YAMUNA NAGAR, YAMUNA NAGAR, HARYANA. HARYANA. PAN: AAYPG3728P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT KAURA RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 05.12.2012 DATE OF PRONOUNCEMENT : 07.12.2012 O R D E R PER SUSHMA CHOWLA, J.M, : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), KARNAL DATED 26.11.2010 RELATING TO ASSESSMENT YEAR 2005-06 AGAINST THE PENALTY LEVI ED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), KARNAL HAS ERRED IN LAW AS WELL AS ON ACTS WHILE NOT CONDONING THE DELAY OF FILING OF APPEAL THEREBY DISMISSING APPELLANTS APPEAL. 2. THAT AS SUCH THE IMPOSITION OF PENALTY U/S 271(1)(C) IS ERRONEOUS AND UNLAWFUL. 3. THE PRESENT APPEAL WAS FILED AFTER A DELAY OF TW O DAYS. THE LEARNED A.R. FOR THE ASSESSEE HAS FURNISHED ON RECO RD APPLICATION FOR CONDONATION OF DELAY IN WHICH IT HAS BEEN SUBMITTED THAT THERE WAS A 2 MISCALCULATION OF NUMBER OF DAYS OF THE MONTH OF DE CEMBER AND JANUARY WHICH WERE TAKEN AT 30 AS AGAINST 31 DAYS IN EACH M ONTH AND HENCE THE DELAY IN FILING THE PRESENT APPEAL BEFORE THE TRIBU NAL. 4. ON HEARING BOTH THE AUTHORIZED REPRESENTATIVES, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE PLEA OF THE ASSESSEE AND THE DELAY OF TWO DAYS IN FILING THE PRESENT APPEAL BEFORE THE TRIBUNAL IS CONDONED AND THE APPEAL IS TAKEN UP FOR HEARING. 5. THE PRELIMINARY ISSUE RAISED IN THE PRESENT APPE AL IS AGAINST THE ORDER OF CIT (APPEALS) IN NOT CONDONING THE DELAY I N FILING THE APPEAL LATE BEFORE THE CIT (APPEALS). THE ISSUE RAISED ON MERITS IS AGAINST IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. 6. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT TH AT THE APPEAL BEFORE THE CIT (APPEALS) WAS FILED AFTER A DELAY OF 188 DAYS. THE SAID DELAY WAS ATTRIBUTABLE TO THE EARLIER COUNSEL ATTEN DING THE CASE. OUR ATTENTION WAS DRAWN TO THE AFFIDAVIT OF SHRI VIPIN GUPTA, CHARTERED ACCOUNTANT FILED BEFORE THE CIT (APPEALS) WHICH IS INCORPORATED AT PAGE 3 OF THE APPELLATE ORDER AND REQUEST WAS MADE FOR C ONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE CIT (APPEALS). 7. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRELIMINARY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST NON-CONDONATION OF DELAY IN FILING THE APPEAL BY THE CIT (APPEALS). THE PENALTY ORDER U/S 271(1)(C) OF THE ACT WAS PASSED ON 27.6.2008 AND WA S SERVED UPON THE ASSESSEE ON 2.7.2008. THE APPEAL AGAINST THE ORDE R LEVYING PENALTY U/S 3 271(1)(C) OF THE ACT WAS TO BE FILED BY 1.8.2008. THE APPEAL WAS PREPARED, SIGNED AND HANDED OVER TO THE EARLIER COU NSEL I.E. SHRI VIPIN GUPTA, CHARTERED ACCOUNTANT ON 28.7.2008. THE SAID COUNSEL BY MISTAKE PUT BACK THE MEMO OF APPEAL SIGNED BY THE ASSESSEE IN HIS FILE AND WAS UNDER THE IMPRESSION THAT THE SAME HAD BEEN DISPATC HED TO THE CIT (APPEALS). LATER ON THE COUNSEL CHECKED THE SAID F ILE AND FOUND THAT THE DOCUMENTS RELATING TO THE SAID APPEAL WERE LYING IN HIS FILE AND HAD NOT BEEN SUBMITTED BEFORE THE CIT (APPEALS). THE APPEA L WAS FILED BY THE EARLIER COUNSEL OF THE ASSESSEE ON 5.2.2009 I.E. AF TER A DELAY OF 188 DAYS. THE ABOVE SAID REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE CIT (APPEALS) WERE ADMITTED BY SHRI VIPIN GUPTA, CHARTE RED ACCOUNTANT IN AN AFFIDAVIT FILED BEFORE THE CIT (APPEALS). THE S AID AFFIDAVIT IS REPRODUCED UNDER PARA 2.04 AT PAGE 3 OF THE APPELLA TE ORDER WHICH READS AS UNDER: 2.04 IN VIEW OF THE LEGAL POSITION DISCUSSED ABOVE, THE REQUEST OF THE APPELLANT FOR CONDONOTION OF DELAY IN FILING THE AP PEAL IS CONSIDERED. THE NOTICE OF DEMAND WAS SERVED ON 2.7. 08 AND AS SUCH THE APPEAL WAS TO BE FILED BY 1.8.2008 WHEREAS THE SAME WAS FILED ON 5.2.2009. THE APPEAL IS AS SUCH LATE B Y 188 DAYS . THE REASON OF DELAY STATED TO BE ATTRIBUTABLE TO HI S COUNSEL SHRI VIPIN GUPTA AND FILED AN AFFIDAVIT OF HIS COUNSEL W HICH READS AS UNDER:- 'I, CA, VIPIN GUPTA S/O LATE SH. S.C. GUPTA, PART NER M/S GUPTA & MALHOTRA, CHARTERED ACCOUNTANTS, DO HEREBY SOLEMNLY AFFIRM & DECLARE AS UNDER:- '1. THAT INCOME TAX APPEAL IN RESPECT OF SH. CHATTER SINGH FOR THE ASSESSMENT YEAR 2005-06 WAS PREPARED AND SE NT FOR HIS SIGNATURE. THAT THE SAME APPEAL WAS RECEIVED BACK DULY SIGNED BY THE ASSESSEE AND BY MISTAKE WAS PUT IN THE FILED OF THE ASSESSEE. I WAS UNDER THE IMPRESSION THAT THE SAME HAS SINCE BEEN DISPATCHED. THAT NOW I AND CHECKED THE FILED FOR SOME OTHER WOR K AND FOUND THAT THE SAME DOCUMENTS ARE TYING IN THE FILE AND HAS NOT BEEN SUBMITTED. 4. THAT WHATEVER DELAY IS DUE TO MISTAKE ON THE PART OF THE UNDERSIGNED. ' 4 9. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES W HERE THE ASSESSEE HAD DISCHARGED ITS DUTY OF SIGNING THE APPEAL IN TI ME AND HANDING OVER THE SAME TO HIS COUNSEL FOR FILING BEFORE THE CIT ( APPEALS) WITHIN DUE TIME ALLOWED UNDER THE STATUTE, THE ONUS CAN BE SAI D TO HAVE BEEN DISCHARGED BY THE ASSESSEE BONAFIDELY. HOWEVER, ME RELY BECAUSE THE EARLIER COUNSEL OF THE ASSESSEE HAD BY AN INADVERTE NT ERROR FILED THE SAID APPEALS PAPERS IN A FOLDER AND HAD NOT SUBMITTED TH E SAME BEFORE THE CIT (APPEALS) IN DUE TIME, BUT HAD FILED THE SAME AFTER A DELAY OF 188 DAYS AND THE SAID INACTION HAVING BEEN ACCEPTED BY THE C OUNSEL OF THE ASSESSEE, WHO IN TURN HAD FURNISHED AN AFFIDAVIT BE FORE THE CIT (APPEALS), WE FIND MERIT IN THE PLEA OF THE ASSESSE E. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE DELAY OF 188 DAYS IN FILING THE APPEAL BEFORE THE CIT (AP PEALS) MERITS TO BE CONDONED. THUS WE CONDONE THE SAID DELAY OF 188 DA YS IN FILING THE APPEAL BEFORE THE CIT (APPEALS). HOWEVER, WE REMIT THE ISSUE ON MERITS BACK TO THE FILE OF THE CIT (APPEALS) TO ADJUDICATE THE SAME AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. THUS GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. WE ARE NOT ADDRESSING THE ISSUE ON MERITS RAISED BY THE ASSESSEE IN VIEW OF OUR SEN DING BACK THE SAID ISSUE TO THE FILE OF THE CIT (APPEALS) TO DECIDE TH E ISSUE IN ACCORDANCE WITH LAW. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH DAY OF DECEMBER, 2012. SD/- SD/- (MEHAR SINGH) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH DECEMBER, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5