Indo Thai Flexible Tubes Ltd., Kolkata V. DCIT, CIR-1(1), KOLKATA, Kolkata

ITA 1048/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1919 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHERJEE
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.1048/KOL/2016 ASSESSMENT YEAR:2010-11 INDO THAI FLEXIBLE TUBES LTD., 17B,PALACE COURT, 1, KYD STREET, KOLKATA-16 [ PAN NO.AAACI 5374 E ] / V/S . DCIT, CIRCLE-1(1), P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 02-01-2018 /DATE OF PRONOUNCEMENT 05-01-2018 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DATED 17.03.2016. ASSESSME NT WAS FRAMED BY DCIT, CIRCLE- 1, KOLKATA U/S 144 OF THE INCOME TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.03.2013 FOR ASSESSMENT YEAR 2010-11. 2. AT THE OUTSET, IT IS OBSERVED THAT THERE WAS A D ELAY OF 432 DAYS ON THE PART OF THE ASSESSEE IN FILING THE APPEAL BEFOR E LD. CIT(A). BEFORE THE LD. CIT(A) IT WAS EXPLAINED BY THE ASSESSEE THA T THE PROFESSIONAL TO WHOM THE APPEAL FILING WORK WAS ASSIGNED LEFT THE O RGANIZATION WITHOUT COMPLETING THE SAME. AND THE ASSESSEE WAS UNDER THE BELIEF THAT THE PROFESSIONAL HAS COMPLETED THE TASK ASSIGNED TO HIM BUT LATER ON IT WAS ITA NO.1048/KOL/2016 A.Y.2010-11 INDO THAI FLEXIBLE TUBES LTD. VS. DCIT CIR-1(1), KOL. PAGE 2 DISCOVERED THAT THE APPEAL FILING WORK WAS STILL PE NDING. THEREFORE THE DELAY OCCURRED. HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL ON ACC OUNT OF DELAY IN FILING THE APPEAL AND BY OBSERVING THAT THE REASONS FOR DELAY IN FILING THE APPEAL WAS NOT SUBSTANTIATED. 2.1 HOWEVER THE LD. AR BEFORE US REITERATED THE SUB MISSION AS MADE BEFORE THE LD. CIT(A) AND PLACED HIS RELIANCE ON TH E PRINCIPLES LAID DOWN BY THE APEX COURT IN CASE TITLED AS COLLECTOR LAND ACQUISITION, ... VS....... MST. KATIJI & ORS (1987 AIR 1353, 1987 SCR (2) 387) WHEREIN IT WAS H ELD AS UNDER : ' WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO NS ARE A PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES T O BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON DELIBERATE DELAY.' 'IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' ON THE CONTRARY THE LD. DR SUBMITTED THAT THE ASSES SEE BEFORE THE LD. CIT(A) FAILED TO SUBSTANTIATE ITS CLAIM TO JUSTIFY THAT THE DELAY OCCURRED DUE TO THE PROFESSIONAL WHO LEFT THE ORGANISATION W ITHOUT COMPLETING THE APPEAL FILING WORK WHICH WAS ASSIGNED TO HIM. THE L D. DR VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). 3. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIALS ON RECORD. INDEED, THERE WAS DELAY IN FILING THE APPEA L BY THE ASSESSEE FOR 432 DAYS BEFORE THE LD. CIT(A). AS PER THE ASSESSEE THE DELAY IN FILING THE APPEAL OCCURRED DUE TO THE FACT THAT THE PROFES SIONAL TO WHOM THE APPEAL FILING WORK WAS ASSIGNED LEFT THE ORGANISATI ON WITHOUT COMPLETING THE SAME WHEREAS THE ASSESSEE WAS UNDER THE BELIEF THAT THE WORK ASSIGNED TO THE PROFESSIONAL HAS BEEN COMPLETED. FR OM THE AFORESAID DISCUSSION, WE FIND THAT THE REASONS FURNISHED BY T HE ASSESSEE WERE CONSIDERED BY THE LD. CIT(A) AS REASONABLE BUT THE SAME WAS NOT SUBSTANTIATED ON THE BASIS OF DOCUMENTARY EVIDENCE THEREFORE THE APPEAL OF THE ASSESSEE WAS DISMISSED. ITA NO.1048/KOL/2016 A.Y.2010-11 INDO THAI FLEXIBLE TUBES LTD. VS. DCIT CIR-1(1), KOL. PAGE 3 THE UNDISPUTED FACT IS THAT THE ASSESSEE IN THE PRE SENT CASE IS A LIMITED COMPANY AND DULY REGISTERED WITH THE REGISTRAR OF C OMPANIES. THE ASSESSEE BEING A LEGAL ENTITY/ ARTIFICIAL JURIDICAL PERSON HAS TO UNDERGO TO COMPLY CERTAIN STATUTORY OBLIGATION UNDER THE COMPA NIES ACT 1956. THEREFORE, IT REQUIRES ASSISTANCE OF THE PROFESSION AL FOR THE PROPER & TIMELY COMPLIANCE OF THE PROVISIONS OF THE COMPANIE S ACT AS WELL AS OTHER ACT INCLUDING INCOME TAX ACT. THEREFORE, IT I S EXPECTED THAT THE COMPANY SHALL ACT IN MORE PROFESSIONAL MANNER. BESIDES THE ABOVE, WE ALSO NOTE THAT THE ASSESSEE F OR THE YEAR UNDER CONSIDERATION I.E. 31.3.2010 HAS DECLARED SALES OF RS.32,03,85,514/- AND INCURRED THE EXPENSES OF RS.38,635/- UNDER THE HEAD LEGAL CONSULTANCY, PROFESSIONAL CHARGES . THE ABOVE INFORMATION INDICATES/ SUGGESTS THAT THE COMPANY IS FUNCTIONING AND ASSISTED BY THE PROF ESSIONALS. IN VIEW OF ABOVE AN INFERENCE CAN BE DRAWN THAT DELAY IN FILIN G THE APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS NEITHER DELIBERA TE NOR OUT OF NEGLIGENCE BUT DUE TO THE FAULT OF THE PROFESSIONAL / CONSULTANT AS DISCUSSED ABOVE. HENCE ON THE AFORESAID ANALYZATION WE FEEL THAT THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEAL BEFORE THE LD. CIT(A). IN HOLDING SO, WE FIN D GUIDANCE & SUPPORT FROM THE JUDGMENT OF HONBLE SUPREME COURT IN THE C ASE OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI [1987] 167 ITR 471/ 35 TAXMAN 17 , WHEREIN IT HELD THAT WHEN SUBSTANTIAL JUSTICE AND T ECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SID E CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NO DELIBERATE DELAY. THE SUPREME COURT, IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD. V. SMT. NIRMALA DEVI [1979] 118 ITR 507, HELD THAT IT IS A SETTLED PRINCIPLE THAT MISTAKE OF COUNSEL MAY IN CERTAIN CI RCUMSTANCES BE TAKEN INTO ACCOUNT IN CONDONING THE DELAY ALTHOUGH THERE IS NO GENERAL PROPOSITION THAT MISTAKE OF COUNSEL BY ITSELF IS AL WAYS A SUFFICIENT GROUND. ACCORDING TO THE HON'BLE SUPREME COURT, WHA T IS TO BE LOOKED ITA NO.1048/KOL/2016 A.Y.2010-11 INDO THAI FLEXIBLE TUBES LTD. VS. DCIT CIR-1(1), KOL. PAGE 4 INTO IS WHETHER THERE IS ANY TAINT OF MALA FIDE OR ELEMENT OF RECKLESSNESS OR RUSE AND IF NEITHER IS PRESENT, LEGAL ADVICE HON ESTLY SOUGHT AND ACTUALLY GIVEN, MUST BE TREATED AS SUFFICIENT CAUSE FOR CONDONING THE DELAY. FURTHER, THE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT V. INDIA CAPACITORS LTD. [1989] 180 ITR 641 HELD THAT A LITIGANT SHOULD NOT SUFFER FOR THE LACHES ON THE PART OF HIS LAWYER. HENCE, WE ARE INCLINED TO DIRECT THE LD. CIT(A) TO CONDONE THE DELAY OF 432 DAYS IN PREFERRING THE INSTANT APPEAL. 4. SO FAR AS THE MERIT OF CASE CONCERNED, THE ORDER OF THE COMMISSIONER (APPEALS) IS SET ASIDE AND THE MATTER REMITTED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION ON ME RITS AND IN ACCORDANCE WITH THE LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 05/01/2018 SD/- SD/- ( % ') ( ') (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ) - 05/01/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-INDO THAI FLEXIBLE TUBES LTD. 17B,PALACE COURT, 1 KYD STREET, KOLKATA-16 2. /RESPONDENT-DCIT, CIRCLE1(1) P-7, CHOWRINGHEE SQ. 7 TH FLOOR, KOLKATA-16 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . %%, , , / DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETA RY HEAD OF OFFICE/DDO ,,