SHRI RAVI PRAKASH AGARWAL, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, JHUNJHUNU

ITA 1056/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9973 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S R SHARMA
• Keywords: Business income; Speculation loss; Condonation of delay
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1056/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2009-10 SHRI RAVI PRAKASH AGARWAL JAIPUR CUKE VS. ACIT, CIRCLE-01, JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AATPA4935F VIHYKFKHZ@ APPEL LANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. S. R. SHARMA (CA) & SH. RAJNIKANT BHATRA (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/06/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 29/06/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-04, JAIPUR DATED 28.03.2019. 2. AT THE OUTSET, IT IS NOTED WITH THE PRESENT APPE AL IS FILED WITH THE DELAY OF 88 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED AS UNDER:- 1. THE APPELLANT WAS EARLIER RESIDING AT HIS NATIV E PLACE CHURU. BUT IN THE YEAR HE SHIFTED ALONGWITH HIS FAMILY TO DELHI A ND HE IS PRESENTLY RESIDING IN DELHI AT E-4/20, NEAR POST OFFICE, ROHI NI SECTOR 7, NORTH WEST, DELHI COPY OF LEGAL DOCUMENTARY EVIDENCE I.E. AADHA R CARD IN SUPPORT OF HIS RESIDENTIAL ADDRESS IN DELHI IS ENCLOSED HEREWI TH. 2. THE APPELLATE ORDER DATED 28.03.2019 WAS DISPATC HED BY POST ON 28.03.2019 AT HIS OLD NATIVE PLACE RESIDENTIAL ADDR ESS, CHURU. WHERE NO ITA NO. 1056/JP/2019 SH. RAVI PRAKASH AGARWAL, JAIPUR VS. ACIT, CIRLCE- 01, JHUNJHUNU 2 FAMILY MEMBER OR OTHER RESPONSIBLE PERSON IS RESIDI NG. THE ORDER WAS SERVED ON SOME UNAUTHORIZED PERSON AND HE DROPPED T HE SEALED ENVELOPE IN THE CLOSED HOUSE OF THE APPELLANT. 3. THE APPELLANT VISITED HIS NATIVE PLACE CHURU ON 20 TH JULY, 2019 AND ON THAT DATE HE CAME TO KNOW ABOUT THE APPELLATE OR DER. IT IS PRESUMED THAT THE POSTAL AUTHORITY TOOK A TIME OF ABOUT 4 DA YS AFTER ITS DISPATCH BY THE I.T. DEPARTMENT ON 28.03.2019 AND ACCORDINGLY T HE DATE OF SERVICE OF THE ORDER WORKS OUT TO 01.04.2019. BASED ON THE SAI D DATE OF SERVICE THE DUE DATE FOR FILING THE APPEAL WAS 30 TH MAY, 2019. THUS THERE IS A DELAY OF 88 DAYS IN FILING THE APPEAL. 4. THE APPELLANT HUMBLY PRAY THAT THE ABOVE SAID DE LAY OF 88 DAYS IN FILING THE APPEAL IS NOT A CONSCIOUS AND/OR DELIBER ATE ONE AND THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE IN FILI NG THE SAME WITHIN THE STATUTORY TIME LIMIT PROVIDED IN THE I.T. ACT, 1961 . 5. AN AFFIDAVIT OF THE APPELLANT IN SUPPORT OF THE ABOVE SUBMITTED FACTS IS ENCLOSED HEREWITH. 3. PER CONTRA, THE LD. DR HAS OBJECTED IN CONDONING THE DELAY IN FILING THE APPEAL. IT WAS SUBMITTED THAT THE ORDER HAS BEEN D ISPATCHED BY THE OFFICE OF LD CIT(A) AT THE GIVEN ADDRESS BY THE ASSESSEE AND WHE RE THERE IS CHANGE OF ADDRESS, IT IS INCUMBENT ON PART OF THE ASSESSEE TO INFORM THE DEPARTMENT ABOUT THE SAME AND IN ABSENCE OF THE SAME, THE ASSE SSEE CANNOT PLEAD DELAY IN RECEIPT OF THE ORDER PASSED BY THE LD CIT(A). 4. HEARD BOTH THE PARTIES AND PURUSED THE RECORDS. THERE IS NO DISPUTE THAT THE ORDER PASSED BY THE LD CIT(A) HAS BEEN RECEIVED BY THE ASSESSEE. THE PLEA OF THE ASSESSEE IS THAT DUE TO CHANGE OF ADDRESS, T HERE IS DELAY IN RECEIPT OF THE SAID ORDER AND CONSEQUENT DELAY IN FILING THE PRESE NT APPEAL. HENCE, CONSIDERING THE CONTENTS OF THE AFFIDAVIT WHICH IS PLACED ON RECORD, THE DELAY IN FILING THE PRESENT APPEAL IS CONDONED AND THE APPEA L IS ADMITTED FOR ADJUDICATION. ITA NO. 1056/JP/2019 SH. RAVI PRAKASH AGARWAL, JAIPUR VS. ACIT, CIRLCE- 01, JHUNJHUNU 3 5. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED AND ORDER PASSED U/S 143(3) READ WITH 147 DATED 18.03.2016. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAS CLAIMED SPECULATIVE LOSS OF RS. 46,73, 054/- WHICH CANNOT BE ADJUSTED OR SET OFF AGAINST BUSINESS INCOME. HENCE, LOSS CLAIMED BY THE ASSESSEE WAS DISALLOWED. BEING AGGRIEVED, THE ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). 6. THE LD. CIT(A) OBSERVED THAT ASSESSEE HAS FILED MANUAL APPEAL ON 24.10.2016 AND THERE WAS DELAY IN FILING THE E-APPE AL BY 14 MONTHS AND GIVEN THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH HI S BONAFIDE FOR LATE FILING OF APPEAL BY 14 MONTHS, THE APPEAL OF THE ASSESSEE WAS DISMISSED AB-INITIO. AGAINST THE SAID FINDINGS, THE ASSESSEE IS IN APPEA L BEFORE US. 7. DURING THE COURSE OF HEARING, OUR REFERENCE WAS DRAWN TO THE PROCEEDINGS BEFORE THE LD. CIT(A) AND IT WAS SUBMIT TED BY THE LD AR THAT THE MATTER WAS INITIALLY HEARD BEFORE LD. CIT(A)-III, J AIPUR WHEREIN THE MATTER WAS PARTIALLY HEARD AND THEREAFTER, DURING THE COURSE O F HEARING ON 21.03.2018, THE ASSESSEE WAS ASKED TO E-FILE THE APPEAL WHICH WAS S UBSEQUENTLY E-FILED ON 14.04.2018. IT WAS FURTHER SUBMITTED THAT THE ASSE SSEE HAD DULY FILED THE APPEAL WITHIN ONE MONTH OF THE HONBLE RAJASTHAN HI GH COURT DECISION WHEREIN THE HONBLE RAJASTHAN HIGH COURT WAS PLEASED TO DIS POSE OFF THE ASSESSEES WRIT STATING THAT SINCE ALTERNATIVE REMEDY IS AVAIL ABLE TO THE ASSESSEE, THE ASSESSEE SHALL FILE APPEAL BEFORE THE LD CIT(A) WIT HIN ONE MONTH OF DATE OF THE ORDER. IT WAS ACCORDINGLY SUBMITTED THAT THE APPEAL HAS BEEN DULY FILED MANUALLY ON 24.10.2016 IN COMPLIANCE TO THE ORDER O F THE HONBLE RAJASTHAN HIGH COURT AND THEREAFTER, FILED ELECTRONICALLY ON 14.04.2018 AND THE ASSESSEE HAS THUS COMPLIED WITH THE DIRECTIONS OF THE LD. CI T (A)-III, JAIPUR AS WELL. IT WAS FURTHER SUBMITTED THAT DELAY IN FILING OF APPEA L ELECTRONICALLY AT THAT POINT OF TIME IS DUE TO TECHNICAL ERROR IN THE SYSTEM AND IS ONLY A PROCEDURAL DEFAULT AND THE SAME MAY BE CONDONED AND IN THE INTEREST OF JUSTICE, THE ASSESSEE ITA NO. 1056/JP/2019 SH. RAVI PRAKASH AGARWAL, JAIPUR VS. ACIT, CIRLCE- 01, JHUNJHUNU 4 MAY BE PROVIDED AN OPPORTUNITY TO REPRESENT HIS CAS E ON MERITS AND THE MATTER MAY BE RESTORED TO THE FILE OF LD. CIT(A) TO EXAMIN E THE SAME ON MERITS. 8. PER CONTRA, THE LD. DR AGAIN DRAWN OUR REFERENC E TO THE FINDINGS OF THE LD. CIT(A) AND SUBMITTED THAT THE CASE OF THE ASSES SEE THAT E-FILING OF THE APPEAL COULD NOT HAPPEN DUE TO TECHNICAL ERROR IN T HE SYSTEM CANNOT BE ACCEPTED AS THERE IS A TIME GAP OF 14 MONTHS BETWE EN MANUAL FILING OF APPEAL ON 24.10.2016 AND E-FILING ON 14.04.2018 GIVEN THAT TECHNICAL ERROR, EVEN IF ACCEPTED, CANNOT CONTINUE FOR SUCH A LONG PERIOD. IT WAS FURTHER SUBMITTED THAT THE CONTENTION OF THE ASSESSEE THAT NO DEFECT MEMO WAS ISSUED CANNOT BE ACCEPTED AS THE CBDT HAS WIDELY NOTIFIED PROCEDURE OF E-FILING OF APPEAL ON OR AFTER 01.03.2016 AND SUCH NOTIFICATION WAS WIDELY P UBLISHED AND CIRCULATED AND THERE WAS THUS, NO NEED TO ISSUE A SEPARATE DEFECT NOTICE IN INDIVIDUAL CASES. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIR MITY IN THE ORDER OF LD. CIT(A) AND THE SAME SHOULD BE CONFIRMED. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE H AS FILED THE APPEAL WITHIN A PERIOD OF ONE MONTH AS PER THE ORDER OF THE HONBLE RAJASTHAN HIGH COURT DISPOSING OFF THE ASSESSEES WRIT. THUS, THE APPEAL OF THE ASSESSEE IS IN COMPLIANCE WITH THE ORDER OF THE HONBLE RAJASTHAN HIGH COURT AND EVEN THE LD CIT(A) HAS RETURNED A SIMILAR FINDING AND THE SAME IS NOT BEING DISPUTED BEFORE US. 10. NOW, COMING TO E-FILING OF THE APPEAL BY THE AS SESSEE. IN THIS REGARD, WE FIND THAT THE JURISDICTION OVER THE ASSESSEES MATT ER WAS INITIALLY WITH THE LD CIT(A)-III, JAIPUR AND THEREAFTER, VIDE NOTIFICATIO N NO. 4 DATED 25.09.2018 ISSUED BY THE PR. CCIT, RAJASTHAN, THE JURISDICTION WAS TRANSFERRED TO LD CIT(A)- IV WHO HAS PASSED THE IMPUGNED ORDER. FURTHER, IT IS NOTED THAT THE MATTER WAS PARTIALLY HEARD FROM TIME TO TIME BY THE LD CIT (A)-III, JAIPUR BEFORE BEING TRANSFERRED AND DURING THE COURSE OF HEARING SCHEDU LED ON 21.03.2018 BEFORE ITA NO. 1056/JP/2019 SH. RAVI PRAKASH AGARWAL, JAIPUR VS. ACIT, CIRLCE- 01, JHUNJHUNU 5 THE LD CIT(A)-III, THE ASSESSEE WAS INSTRUCTED TO E -FILE THE APPEAL. THEREFORE, WE FIND THAT THE ASSESSEES APPEAL THOUGH IN COMPLI ANCE WITH THE ORDER OF THE HONBLE RAJASTHAN HIGH COURT, THE LD CIT(A)-III HA D NOTICED THE DEFECT IN ASSESSEES APPEAL DUE TO LACK OF E-FILING IN COMPLI ANCE WITH CBDTS INSTRUCTIONS. THE ASSESSEE HAS THEREAFTER REMOVED THE DEFECT AND FILED THE E-APPEAL ON 14.04.2018. GIVEN THAT THE ASSESSEE HAS E-FILED THE APPEAL WITHIN A REASONABLE PERIOD OF LESS THAN ONE MONTH OF BEING INSTRUCTED B Y THE LD CIT(A) AND NOT A PERIOD OF 14 MONTHS AS CONTENDED BY THE LD DR, THE DELAY SO HAPPENED, BEING A TECHNICAL BREACH, IS HEREBY CONDONED AND THE MATT ER IS RESTORED TO THE FILE OF THE LD CIT(A)-IV TO EXAMINE THE SAME ON MERITS AFTE R PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ABOVE DIRECTIONS WOULD ALSO BE IN CONSONANCE WITH THE ORDER OF THE HONBLE RAJASTHAN HIGH COURT WHERE THE ASSESSEE HAS BEEN INSTRUCTED TO AVAIL THE APPELLATE REMEDY BEFOR E THE LD CIT(A). THE ASSESSEE IS ALSO INSTRUCTED TO COMMUNICATE HIS NEW ADDRESS TO THE LD CIT(A) AND ATTEND TO THE PROCEEDINGS BEFORE THE LD CIT(A) AS SO INSTRUCTED BY THE LATTER. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/06/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/06/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. RAVI PRAKASH AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CRICLE-01, JHUNJHUNU 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. ITA NO. 1056/JP/2019 SH. RAVI PRAKASH AGARWAL, JAIPUR VS. ACIT, CIRLCE- 01, JHUNJHUNU 6 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1056/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR