M/s Vakrathunda Holdings Pvt Ltd , Bangalore V. The Deputy Commissioner of Income Tax Circle-12(5), Bangalore

ITA 1084/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7425 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJASHEKAR REDDY L
• Assessee Lawyers: K P KUMAR SENIOR
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO. 1084 / BANG/201 7 ASSESSMENT YEAR : 20 1 1 - 12 M/S. VAKRATHUNDA HOLDINGS PVT. LTD., NO. 23/2, COFFEEDAY SQUARE, VITTAL MALLYA ROAD, BANGALORE-560 001. PAN: AABCV 9256H VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 12(5), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI K.P. KUMAR, SENIOR ADVOCATE REVENUE BY : SHRI RAJASHEKAR REDDY L., CIT (DR) DATE OF HEARING : 30 . 10 .201 7 DATE OF PRONOUNCEMENT : 31 .10 .2017 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL WHICH IS DIRECTED AGAI NST THE ORDER OF LD. CIT (A)- 7, BANGALORE DATED 23.02.2017 FOR ASSESSMENT YEAR 2 011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - ITA NO. 1084/BANG/2017 PAGE 2 OF 7 ITA NO. 1084/BANG/2017 PAGE 3 OF 7 ITA NO. 1084/BANG/2017 PAGE 4 OF 7 ITA NO. 1084/BANG/2017 PAGE 5 OF 7 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IN T HE PRESENT CASE, RETURN OF INCOME WAS FILED BY THE ASSESSEE WHICH WAS ASSESSED BY THE AO AS PER ASSESSMENT ORDER DATED 10.03.2014 AND THE ASSESSMEN T ORDER WAS SERVED ON THE ASSESSEE ON 13.03.2014. THEREAFTER, THE ASSESS EE MOVED AN APPLICATION FOR REVISION U/S. 264 OF IT ACT BEFORE THE CIT. IT IS ALSO SUBMITTED THAT AN APPLICATION FOR WITHDRAWAL OF APPLICATION FILED U/S . 264 OF IT ACT WAS SUBMITTED BEFORE THE CIT ON 05.02.2015 AND THEREAFTER ON 06.0 2.2015, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A) AND SUBSEQUENTLY ON 09 .02.2015, THE LD. CIT HAS DISMISSED THE APPLICATION OF ASSESSEE U/S. 264 AS W ITHDRAWN. THEREAFTER HE SUBMITTED THAT IN THE IMPUGNED ORDER, IT WAS HELD B Y CIT (A) THAT SINCE THE ASSESSEE HAS OPTED TO SELECT THE ROUTE OF FILING PE TITION BEFORE THE CIT U/S 264, THE ASSESSEE HAS WAIVED ITS RIGHT TO FILE THE APPEA L AND THE SAME CANNOT COME BACK AND ON THIS BASIS, IT WAS HELD BY HIM AS PER P ARA NO. 7.7 OF THE IMPUGNED ORDER THAT THE APPEAL FILED BEFORE THE CIT (A) IS N OT MAINTAINABLE. IN THIS REGARD, HE PLACED RELIANCE ON JUDGMENT OF HONBLE MADRAS HI GH COURT RENDERED IN THE CASE OF M. JAYABALAN VS. CIT AS REPORTED IN 40 TAXM ANN.COM 218 (MADRAS). HE SUBMITTED A COPY OF THIS JUDGMENT AND POINTED OU T THAT AS PER THIS JUDGMENT, IT WAS HELD THAT THE FILING OF REVISION PETITION CA NNOT BE A BAR FOR FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE APPROPRIATE AUTHO RITIES AS PER THE RELEVANT PROVISIONS OF LAW. 4. ON THE SECOND ASPECT OF THE MATTER REGARDING CON DONATION OF DELAY IN FILING THE APPEAL BEFORE THE LD. CIT (A), HE SUBMITTED THAT IT IS HELD BY CIT (A) AS PER THE IMPUGNED ORDER THAT THERE IS DELAY OF 331 DAYS WHIC H IS AN EXTRAORDINARY DELAY IN FILING OF THIS APPEAL AND THE ASSESSEE IS REQUIR ED TO EXPLAIN THE REASON FOR DELAY ON DAY-TO-DAY BASIS. HE HELD THAT THE ASSESS EE HAS NOT BEEN ABLE TO ITA NO. 1084/BANG/2017 PAGE 6 OF 7 DISCHARGE ITS ONUS. ON THIS ASPECT OF THE MATTER, HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS AS REPORTED IN 167 ITR 471 AND POINTED OUT THAT AS PER THIS JUDGMENT, IT WAS HELD THAT WHE N SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OT HER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. 5. REGARDING THE REASONS FOR DELAY, HE SUBMITTED TH AT THE ASSESSEE HAD EARLIER PREFERRED AN ALTERNATIVE REMEDY AVAILABLE AND THERE FORE, THERE WAS SUFFICIENT AND REASONABLE CAUSE FOR DELAY IN FILING APPEAL BEF ORE THE CIT (A). IN THIS REGARD, HE PLACED RELIANCE ON FOLLOWING JUDICIAL PR ONOUNCEMENTS. A) CIT VS. K.S.P. SHANMUGAVEL NADAR AND OTHERS, 153 ITR 596 (MADRAS) B) CIT VS. SHARMA AND COMPANY, 153 ITR 605(RAJ) C) J.M. BHASALI AND OTHERS VS. THE STATE OF MADRAS, 21 STC 411(MADRAS) HE SUBMITTED THAT THE DELAY IN FILING APPEAL SHOULD BE CONDONED AND MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT (A) FOR DECISION ON MERIT BECAUSE HE HAS NOT MADE DECISION ON MERIT. THE LD. DR OF REVE NUE SUPPORTED THE ORDER OF CIT (A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE AR E OF THE CONSIDERED OPINION THAT IN VIEW OF THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF M. JAYABALAN VS. CIT (SUPRA) WHEREIN IT IS HELD THAT THE APPEAL FILED BY THE ASSESSEE BEFORE CIT (A) AFTER WITHDRAWAL OF THE REV ISION PETITION U/S. 264 IS MAINTAINABLE AND IT CANNOT BE SAID THAT AFTER FILIN G THE REVISION PETITION U/S. 264, THE ASSESSEE CANNOT FILE THE APPEAL BEFORE THE CIT (A) EVEN AFTER WITHDRAWAL OF THE SAID REVISION PETITION. ON THIS ASPECT, WE DEC IDE THE ISSUE IN FAVOUR OF THE ASSESSEE BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE MADRAS HIGH COURT. 7. REGARDING THE CONDONATION OF DELAY OF 331 DAYS I N FILING APPEAL BEFORE THE CIT (A), WE FIND FORCE IN THE SUBMISSIONS OF LD. AR OF ASSESSEE THAT IN VIEW OF THIS FACT THAT THE ASSESSEE WAS PURSUING AN ALTERNATIVE REMEDY AVAILABLE UNDER THE LAW AND THE DELAY FOR THAT REASON SHOULD BE CONDONE D IF IT IS FOUND THAT SUCH ACTION OF THE ASSESSEE WAS BONAFIDE. HE HAS PLACED RELIANCE ON THE JUDGMENT ITA NO. 1084/BANG/2017 PAGE 7 OF 7 OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE O F CIT VS. K.S.P. SHANMUGAVEL NADAR AND OTHERS (SUPRA). IN THE PRESEN T CASE, THIS IS NOT THE CASE OF THE REVENUE THAT THE APPLICATION FILED BEFO RE THE CIT FOR REVISION WAS NOT BONAFIDE ACTION OF THE ASSESSEE AND THEREFORE, BY R ESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE MADRAS HIGH COURT, WE HOLD THAT THE DELAY IN FILING APPEAL HAS BEEN EXPLAINED BY THE ASSESSEE AND SAME HAS TO BE CONDONED IN THE FACTS OF THE PRESENT CASE. HENCE WE CONDONE THE DELAY IN FILING APPEAL BEFORE THE CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF CIT (A) FOR DECISION ON MERIT OF THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (GEORGE GEORGE K) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 31 ST OCTOBER, 2017. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.