Sh. Sandeep Bhardwaj, Chandigarh V. ITO, W-4(2), Chandigarh

ITA 1102/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1029 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AHOK KHANNA CIT
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1102/CHD/2019 / ASSESSMENT YEAR : 2010-11 SHRI SANDEEP BHARDWAJ, H.NO. 1676, SECTOR 29-B, CHANDIGARH. VS THE ITO, WARD 4(2), CHANDIGARH. ./ PAN NO: AGSPB7560N / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI AMITOZ SINGH KAMBOJ, C.A. # ! ' / REVENUE BY : SHRI AHOK KHANNA, ADDL.CIT $ % ! &/ DATE OF HEARING : 07.07.2021 '()* ! &/ D ATE OF PRONOUN CEMENT : 09.07.2021 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 31.12.2018 OF CI T(A)-2 CHANDIGARH PERTAINING TO 2010-11 ASSESSMENT YEAR IS ASSAILED ON THE FOLLOWING GROUNDS : 1. THE ID. CIT (A) HAVE ERRED IN LAWS AND ON THE FACTS OF THE CASE BY CONFIRMING THE ADDITIONS MADE THE LD. AO AMOUNTING TO RS. 12,24,310/- ON ACC OUNT OF UNEXPLAINED CASH DEPOSITS IGNORING THE FACT THAT THE SAME WERE EXPLAINABLE. 2. THE APPELLANT CRAVES PERMISSION TO FILE/ RAISE/ AME ND ANY OTHER GROUND OF APPEAL AT THE TIME OF HEARING. 2. HOWEVER, BEFORE ADDRESSING THE SAME, IT IS NECES SARY TO NOTE THAT THE ASSESSEE HAS MOVED AN ADJOURNMENT APP LICATION ON RECORD. THE LD. AR AT THE OUTSET REQUESTED FOR PERMISSION TO WITHDRAW THE APPLICATION STATING THAT THE REQUES T FOR ITA 1102/CHD/2019 A.Y. 2010-11 PAGE 2 OF 6 ADJOURNMENT HAD BEEN MOVED ON THE GROUNDS THAT THE ASSESSEE HAVING GIVEN UP THE ORIGINAL REQUEST FOR SETTLING T HE APPEAL UNDER 'VIVAD SE VISHWAS SCHEME, 2020 WILL BE ARGUI NG THE APPEAL ON MERITS AND HENCE MAY NEED TIME. HOWEVER, ON CONSIDERING THE RECORD, IT WAS HIS REQUEST THAT THE ADJOURNMENT APPLICATION MOVED BY WAY OF ABUNDANT MA Y BE PERMITTED TO BE WITHDRAWN AS HE IS READY TO ARGUE T HE APPEAL. NO OBJECTION WAS POSED BY THE LD. SR.DR TO THE SAID REQUEST. ACCORDINGLY, PERMITTING THE WITHDRAWAL, THE LD. AR WAS REQUIRED TO ARGUE THE APPEAL. 3. ADDRESSING THE DELAY OF 148 DAYS POINTED OUT BY THE REGISTRY THE LD. AR INVITING ATTENTION TO THE CONDO NATION OF DELAY APPLICATION FILED ON RECORD SUBMITTED THAT TH E EXPLANATION OFFERED IS SUPPORTED BY HIS OWN AFFIDAV IT DATED 06.08.2019 FILED AS A COUNSEL HIMSELF. REFERRING T O THESE, IT WAS SUBMITTED, THAT THE ASSESSEE HAS PLEADED THAT H E WAS IGNORANT OF THE PROCEDURAL AND STATUTORY REQUIREMEN TS, HENCE, SOUGHT ADVICE FROM HIS EARLIER COUNSEL WHO AS PER T HE IMPUGNED ORDER WAS SHRI SANJIV SHARMA AND OTHERS AS NOTED IN THE IMPUGNED ORDER ITSELF. THE ASSESSEE, IT WAS SU BMITTED, WAS ADVISED NOT TO FILE ANY APPEAL. SUBSEQUENTLY, THE A SSESSEE SOUGHT ANOTHER OPINION FROM HIM AND WAS ADVISED TO FILE AN APPEAL. FOR THE SAID PURPOSE CHALLAN FEE WAS DULY D EPOSITED ON 27.05.2019 ITSELF. HOWEVER, SINCE HIS OFFICE WAS BE ING SHIFTED ITA 1102/CHD/2019 A.Y. 2010-11 PAGE 3 OF 6 FROM CHANDIGARH TO MOHALI, THE PAPERS OF THE ASSESS EE INADVERTENTLY GOT MISPLACED AND THE APPEAL IN THE CIRCUMSTANCES WAS FILED ON 07.08.2019. 3.1 RELYING ON THESE DOCUMENTS AND SUBMISSIONS, IT WAS HIS PRAYER THAT THE DELAY HAS OCCURRED ON ACCOUNT OF TH E PECULIAR FACTS OF SHIFTING OF HIS OFFICE AND IS NOT ON ACCOU NT OF ANY FAULT OF THE ASSESSEE. ACCORDINGLY, RELYING UPON THESE F ACTS AND SUBMISSIONS SUPPORTED BY HIS AFFIDAVIT, IT WAS HIS PRAYER THAT THE DELAY MAY BE CONDONED. 4. THE LD. SR.DR MR. KHANNA NOT DISPUTING THE FACTS ON PERUSING THE MATERIAL AVAILABLE ON RECORD SUBMITTED THAT HE HAS NO OBJECTION TO THE DELAY BEING CONDONED IN THE SE PECULIAR FACTS AND CIRCUMSTANCES. 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. THE AFFIDAVIT OF THE COUNSEL AVAILABLE ON RECORD IS FOUND TO SUPPORT THE CONDONATION OF DELAY APPLICATI ON ON RECORD. IT READS AS UNDER : I, AMITOZ SINGH KAMBOJ S/O S.BALDEV SINGH R/O 2209 PEPSU SOCIETY, SECTOR 50-C, CHANDIGARH DO SOLEMNLY AFFIRM AS UNDER: 1. THAT I AM A PRACTICING CHARTERED ACCOUNTANT AND THE COUNSEL OF MR SANDEEP BHARDWAJ (PAN- AGSPB7560N) (HEREINAFTER CALLED AS 'ASSESSEE') RESI DING AT H.NO. 1676 SECTOR 29B, CHANDIGARH. 2. THAT THE WORTHY CIT(A) CHANDIGARH HAVE PASSED AN OR DER DATED 31.12.2018 IN ASSESSEE'S CASE FOR THE A.Y. 2010-11 AND THE SAME WAS RECEIVED BY THE ASSESSEE ON 11.01.2019 AT HIS ABOVE MENTIONED ADDRESS STATED AT PARA-1. 3. THAT THE ASSESSEE WAS NOT AWARE OF THE DUE DATE OF THE FURTHER APPEAL TO HON'BLE ITAT WHICH FALLS WITHIN 60 DAYS I.E. 12.03.2019 FROM THE RECEIPT OF THE SAID ORDER(I.E. 11.01.2019) AND HIS PREVIOUS COUNSEL ADVISED HIM OF NOT FILING OF APPEAL TO HON'BLE ITAT. 4. THAT THEREAFTER IN MAY HE APPROACHED ME FOR A SECON D OPINION ON FILING APPEAL AND WE MOVED FURTHER WITH THE PROCESS OF FILING OF APPEAL AND DEPOSITED THE CHALLAN ON 27.05.2019. ITA 1102/CHD/2019 A.Y. 2010-11 PAGE 4 OF 6 5. THAT IN THE MEANWHILE WE HAVE SHIFTED OUR OFFICE PR EMISES FROM CHANDIGARH TO MOHALI. 6. THAT IN THE PROCESS OF SHIFTING INADVERTENTLY TH E APPELLATE ORDER HANDED OVER BY THE ASSESSEE GOT MISPLACED, THEREBY CAU SING DELAY IN FILING APPEAL. 7. THAT IN THIS WAY THERE HAS BEEN A DELAY OF 148 DAYS, HOWEVER, THERE HAD BEEN NO INTENTION FROM MY SIDE NOR FROM ASSESSEE SIDE TO JEOPARDIZE T HE INTEREST OF THE REVENUE BY PLAYING THE PROCESS OF THE FILING OF APPLICATION. IT IS PRAYED THAT THE DELAY MAY KINDLY BE CONDONED. (SD/-) DEPONENT VERIFICATION: I, AMITOZ SINGH KAMBOJ, THE ABOVE NAMED DEPONENT DO HEREBY CERTIFY THAT THE CONTENTS OF PARA L TO 7 ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. (SD/-) DATE: 06.08.2019 DEP ONENT ( (EMPHASIS SUPPLIED) 6. CONSIDERING THE FACTS AS DEPOSED WHICH ARE NOT O PPOSED BY THE REVENUE, I FIND THAT IN THE PECULIAR FACTS A ND CIRCUMSTANCES OF THE PRESENT CASE, THE DELAY HAS OC CURRED FOR NO FAULT OF THE ASSESSEE. IT IS SEEN THAT INITIALL Y THE DELAY AS PER THE EXPLANATION OFFERED HAS OCCURRED ON ACCOUNT OF INCORRECT ADVICE RECEIVED BY THE ASSESSEE FROM HIS ERSTWHILE A.R. AND THEREAFTER ON ACCOUNT OF SHIFTING OF THE O FFICE PREMISES OF THE NEWLY APPOINTED AUTHORIZED REPRESEN TATIVE. IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE, NO U NDUE ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE IN THE L ATE FILING OF THE APPEAL AND NO RIGHT VESTED BY THE REVENUE IS FO UND TO BE UPSET IF THE DELAY IS CONDONED. ACCORDINGLY, SATISF IED WITH THE EXPLANATION OFFERED, I HOLD THAT THE DELAY DESERVES TO BE CONDONED. ORDERED ACCORDINGLY. 7. THE PARTIES, THEREAFTER, WERE DIRECTED TO ARGUE THE APPEAL ON MERITS, IN CASE THEY WERE READY TO DO SO. ITA 1102/CHD/2019 A.Y. 2010-11 PAGE 5 OF 6 8. THE LD. AR INVITING ATTENTION TO THE IMPUGNED OR DER SUBMITTED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED IN LIMINE. REFERRING TO THE ORDER, IT WAS HIS SUBM ISSION THAT THE DISMISSAL OF THE ASSESSEE'S APPEAL IS NOT ON ME RITS. IT WAS ELABORATED THAT THOUGH VARIOUS OPPORTUNITIES HAVE B EEN GIVEN BY THE CIT(A) AND ON MOST OF THEM, THE COUNSEL SOUG HT ADJOURNMENT AND IN SOME, WAS NOT PRESENT DESPITE T HIS, FOR NO FAULT OF THE ASSESSEE, THE APPEAL WAS DISMISSED IN LIMINE. THE ASSESSEE HAVING APPOINTED A COUNSEL, IT WAS HIS SUB MISSION, CANNOT BE SAID TO BE LAX WITH HIS DUTIES AND RESPON SIBILITIES AND SHOULD NOT BE ALLOWED TO SUFFER ON ACCOUNT OF T HE MISTAKE/CARELESSNESS OF THE COUNSEL, IF ANY. IN TH E CIRCUMSTANCES, IT WAS HIS LIMITED PRAYER THAT THE I MPUGNED ORDER MAY BE SET ASIDE SO AS TO AFFORD THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 9. THE LD. DR MR. KHANNA ON CONSIDERING THE MATERIA L AVAILABLE ON RECORD POSED NO OBJECTION TO THE SAID REQUEST. 10. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. ON CONSIDERING THE SAME, I AM OF THE VIEW THAT THE PRAYER OF THE ASSESSEE DESERVES TO BE ALLOWED AS AF TER HAVING APPOINTED AN AUTHORIZED REPRESENTATIVE TO REPRESENT HIM, THE ASSESSEE CAN BE SAID TO HAVE DULY DISCHARGED HIS ON US. THE IMPUGNED ORDER, EVEN OTHERWISE, IT IS SEEN IS NOT I N CONFORMITY WITH THE STATUTORY REMIT AS SET OUT IN SUB-SECTION (6) OF ITA 1102/CHD/2019 A.Y. 2010-11 PAGE 6 OF 6 SECTION 250 OF THE INCOME TAX ACT, 1961. ACCORDING LY, IT IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE DIREC TION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS ADVISED TO PARTICI PATE FULLY AND FAIRLY IN THE PROCEEDINGS BEFORE THE SAID AUTHORITY AS FAILING WHICH, IT IS MADE CLEAR, THE CIT(A) WOULD BE AT LIB ERTY TO PASS AN ORDER IN ACCORDANCE WITH LAW. SAID ORDER WAS PRO NOUNCED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESENCE OF THE PARTIES VIA WEBEX. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 9 TH JULY,2021. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR