M/s. Tamilnadu Finance, Salem V. ITO, Salem

ITA 110/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61025 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 23-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATH KAIKIHALLI
• Assessee Lawyers: G BASKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NOS. 110 & 112/MDS/2012 (ASSESSMENT YEAR : 2001-02) M/S TAMILNADU FINANCE, C/O SHRI K. NAGARAJAN, 7, SIVANAR STREET NO.3, KARKANA, GUGAI, SALEM 636 006. PAN : AAFFT4588B (APPELLANT) V. THE INCOME TAX OFFICER, WARD I(3), SALEM. (RESPONDENT) APPELLANT BY : SHRI G. BASKAR, ADVOCATE RESPONDENT BY : SHRI MANJUNATH KAIKIHALLI, SR.DR DATE OF HEARING : 12.4.2012 DATE OF PRONOUNCEMENT : 12.4.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THESE ARE APPEALS OF THE ASSESSEE DIRECTED AGAINST ORDERS DATED 9.12.2011 OF COMMISSIONER OF INCOME TAX (APPE ALS), SALEM. IN BOTH THE APPEALS, ONE OF THE GRIEVANCES TAKEN BY THE ASSESSEE IS THAT CIT(APPEALS) DID NOT CONDONE THE DELAY IN FILI NG APPEAL AND THE APPEALS WERE DISPOSED OF WITHOUT CONSIDERING THE ME RITS. I.T.A. NOS. 110 & 112/MDS/12 2 2. SHORT FACTS APROPOS ARE THAT THERE WAS A SURVEY IN THE ASSESSEES PREMISES AND CONSEQUENT TO SURVEY, FOR T HE IMPUGNED ASSESSMENT YEAR, INCOME OF THE ASSESSEE WAS ASSESSE D ` 10,38,563/-. THERE WAS AN EXPENDITURE ALLOWANCE ` 47,873/- AND AN ADDITION OF UNPROVED CREDITS ` 9,94,940/-. A.O. ALSO LEVIED PENALTY UNDER SECTION 271(1)(C) OF INCOME-TAX ACT, 1961 (IN SHORT THE ACT) FOR A REASON THAT ASSESSEE FURNISHED INACCURATE PARTICU LARS WITH RESPECT TO ABOVE TWO AMOUNTS. 3. AGAINST BOTH THE ORDERS, ASSESSEE MOVED IN APPEA L BEFORE LD. CIT(APPEALS). HOWEVER, THE APPEALS WERE FILED WITH A DELAY OF ABOUT TWO YEARS. AS PER LD. CIT(APPEALS), ASSESSEE HAD N OT SHOWN ANY SUFFICIENT AND VALID REASON FOR FILING APPEALS BELA TEDLY. HE, THEREFORE, REFUSED TO CONDONE THE DELAY AND DISMISSED THE APPE ALS WITHOUT CONSIDERING THE MERITS. 4. NOW BEFORE US, LEARNED A.R. FILING A PAPER-BOOK, SUBMITTED THAT ASSESSEE HAD FILED A PETITION DATED 13.10.2008 BEFO RE LD. CIT(APPEALS) GIVING DETAILED REASONS WHY THE APPEAL S COULD NOT BE FILED IN TIME. ACCORDING TO HIM, THE MANAGING PART NER OF THE ASSESSEE-FIRM WAS CHANGED AND A NEW MANAGING PARTNE R, WHO WAS I.T.A. NOS. 110 & 112/MDS/12 3 TO FILE THE APPEALS, BEING A DAILY COOLY WORKER, WA S UNABLE TO FILE THE APPEALS DUE TO MENTAL TENSION AND OTHER CONSTRAINTS . LEARNED A.R. FURTHER SUBMITTED THAT IN RESPECT OF THE EARLIER MA NAGING PARTNER SHRI A. NATARAJAN, LD. CIT(APPEALS) HAD CONDONED A SIMIL AR DELAY. IN SUPPORT, LEARNED A.R. FILED A COPY OF ORDER OF LD. CIT(APPEALS) IN THE CASE OF SHRI A. NATARAJAN AT PAPER-BOOK PAGES 3-5. THEREFORE, ACCORDING TO HIM, IN ASSESSEES CASE ALSO LD. CIT(A PPEALS) OUGHT HAVE CONSIDERED THE PETITION, CONDONED AND ADMITTED THE APPEALS. 5. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL S UBMISSIONS. THE ORDER OF LD. CIT(APPEALS) FOR BOTH THE APPEALS ARE SIMILAR. HE HAS REFUSED TO CONDONE THE DELAY FOR A REASON THAT ASSESSEE HAD NOT GIVEN SUFFICIENT REASON. HOWEVER, NOTHING WHATSOEV ER WAS MENTIONED BY LD. CIT(APPEALS) ON THE PETITION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY. THE SAID PETITION DATED 13.10.2008 (PAPER- BOOK 6-7) READS AS UNDER:- THE MANAGING PARTNER OF THE FIRM GOT INTO SERIOUS DIFFICULTIES IN HIS INCOME-TAX MATTERS AND WAS AVOI DING TO SEEK LEGAL REMEDY IN HIS CASE AND IN THE CASE OF THE APP ELLANT FIRM. HE HAD INFORMED THE DEPARTMENT ON 25.10.06 THAT HE WAS A DAILY COOLY WORKER THEN. HE HAD ALSO PATHETICALL Y APPEALED BY LETTER DATED 22.03.06 ADDRESSED TO THE INCOME-TAX D EPARTMENT I.T.A. NOS. 110 & 112/MDS/12 4 NOT TO BE ROOT CAUSE IF HE AND HIS FAMILY MEMBERS W OULD COMMIT SUICIDE DUE TO MENTAL TENSION CONSEQUENT TO ITS ORD ERS. ADVANCES MADE BY HIM COULD NOT RECOVERED AND HE HAD TO FILE CASES IN COURT. THERE WERE MISUNDERSTANDINGS AMONG THE PARTNERS OF THE FIRM, DUE TO WHICH, ITS BUSINESS WAS STOPPED. ONLY WHEN THE DEPARTMENT ATTEMPTED IN SEPTEMBER, 2008, TO COLLECT THE ARREARS OF TAX AND PENALTY LEV IED UNDER SECTION 271(1)(C), THE OTHER PARTNERS BECAME AWARE OF THE RAISING OF THE DEMANDS. AN APPEAL IS BEING FILED WITHIN A REASONABLE TIME THEREFROM. IT IS PRAYED THAT THE COMMISSIONER MAY BE PLEASE TO HOLD THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY, CO NDONE THE SAME AND ADMIT THE APPEAL. NO DOUBT, LD. CIT(APPEALS) HAS A DISCRETION WHETHER TO ACCEPT THE CONDONATION PETITION OR NOT. HOWEVER, THIS CANNOT BE DONE IN A SUBJECTIVE MANNER. COGENT REASONS HAD TO BE SHOWN FOR REFUSING CONDONATION. A SIMILAR PETITION FILED BY SHRI A. N ATARAJAN, THE EARLIER MANAGING PARTNER, HAS BEEN ACCEPTED BY LD. CIT(APPE ALS). WE ARE OF THE OPINION THAT THE MATTER REQUIRES A FRESH CON SIDERATION BY LD. CIT(APPEALS). WE, THEREFORE, SET ASIDE THE ORDERS OF LD. CIT(APPEALS) AND REMIT BOTH THE APPEALS BACK TO HIM FOR FRESH CO NSIDERATION. LD. CIT(APPEALS) SHALL LOOK INTO THE CONDONATION PETITI ON AND PROCEED IN ACCORDANCE WITH LAW. I.T.A. NOS. 110 & 112/MDS/12 5 6. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 12 TH APRIL, 2012. SD/- SD/- (CHALLANAGENDRA PRASAD) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 12 TH APRIL, 2012. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A), SALEM (4) CIT, SALEM (5) D.R. (6) GUARD FILE