Linga Furniture, Hyd, Hyderabad V. ACIT, Circle - 4(1), Hyderabad

ITA 1125/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53770 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 10-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: C P RAMASWAMY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, A.M AND SMT. ASHA VIJAYARAGHAVAN,J.M ITA NO.1125/HYD/2011 ASSESSMENT YEAR 2004-05 M/S.LINGA FURNITURE, BHOLAKPUR, HYDERABAD. ( PAN AAAFL 7640 P) VS ACIT, CIR - 4(1), HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.P. RAMASWAMY RESPONDENT BY : SHRI K.E. SUNIL BABU DATE OF HEARING: 16-11-2011. DATE OF PRONOUNCEMENT: 16 -11-2011. O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE CIT (A)-V, HYDERABAD DATED 11-4-2011 AND IT PERTAINS TO THE ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE RAISED THE GROUND FOR NOT ADMITTIN G THE APPEAL BY THE CIT (A) AS THERE WAS SHORT DELAY OF 23 DAYS I N FILING THE APPEAL BEFORE THE CIT (A). ITA NO.1125/HYD/2011- M/S. LINGA FURNITURE, HYD. L.L ========================== 2 3. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT THE ASSESSEE HAS FILED A PETITION BEFORE THE C IT (A) EXPLAINING THE REASONS FOR THE DELAY AS FOLLOWS:- THE ABOVE NAMED APPELLANT BEGS TO SUBMIT THAT THE I MPUGNED PENALTY ORDER UNDER SECTION 271(1)(C ) WAS RECEIVED BY THE APPELLANT ONLY ON 23-1-2009. CONSEQUENTLY, THIS APPEAL SHOULD HAVE B EEN PRESENTED ON OR BEFORE 22-2-2009. HOW3EVER, THE APPELLANT COULD NOT PRESENT THE SAME WITHIN THE STATUTORY TIME LIMIT BECAUSE MANAGI NG PARTNER, BEING A DIABETIC, COULD NOT ATTEND TO HIS REGULAR WORK. B ESIDES, HE HAD SOME SOCIAL OBLIGATIONS IN CONNECTION WITH SIGNIFICANT F AMILY FUNCTIONS. HENCE THE DELAY OF ABOUT 16 DAYS HAS OCCURRED. IT IS PRAYED THAT THIS DELAY MAY BE KINDLY CONDONED BECAUSE THE APPELLANT DOES NOT DERIVE ANY BENEFIT BY DELAYING T HE PRESENTATION OF THIS APPEAL. IF THE APPEAL WERE NOT ADMITTED, SUBS TANTIVE JUSTICE WILL BE DENIED TO THE APPELLANT. THEREFORE, IT IS PRAYED T HAT THIS APPEAL MAY BE ADMITTED FOR RENDERING SUBSTANTIVE JUSTICE. THE ABOVE REASON ADVANCED BY THE ASSESSEE WAS NOT F OUND FAVOUR WITH THE CIT (A). HENCE, IT IS PRAYED THAT THE DELAY O F 23 DAYS IN FILING THE APPEAL BEFORE THE CIT (A) TO BE CONDONED. 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE STRONGLY SUPPORTED THE ORDER OF THE CIT (A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, THERE WAS A DELAY OF 23 DAYS IN FILING THE APPEAL BEFORE THE CI T (A) ON THE ACCOUNT OF ITA NO.1125/HYD/2011- M/S. LINGA FURNITURE, HYD. L.L ========================== 3 MANAGING PARTNERS ILL-HEALTH I.E., BEING A DIABETI C PATIENT COULD NOT ATTEND HIS REGULAR WORK AND ALSO DUE TO SOME SOCIAL OBLIGATIONS IN CONNECTION WITH SIGNIFICANT FAMILY FUNCTIONS. IN OU R OPINION, THE REASON ADVANCED BY THE ASSESSEE IS GENUINE ONE AND THERE FORE THE ASSESSEE IS HAVING GOOD AND SUFFICIENT CAUSE IN FILING THE APPE AL BELATEDLY. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS AR E PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN I NJUSTICE BEING DONE BECAUSE OF A NON DELIBERATE DELAY. IN THE CASE ON HAND, WE HAVE TO PREFER SUBSTANTIAL JUSTICE RATHER THAN TECHNICALITI ES FOR DECIDING THE ISSUE. AS OBSERVED BY THE APEX COURT IN THE CASE O F LAND ACQUISITION VS. MST KATIJI AND OTHERS (167 ITR 471), IF THE APP LICATION OF THE ASSESSEE FOR CONDONING THE DELAY IS REJECTED, IT WO ULD AMOUNT TO LEGALIZING INJUSTICE ON TECHNICAL DEFAULT, WHEN WE ARE CAPABLE OF REMOVING INJUSTICE AND TO DO JUSTICE. THEREFORE, WE ARE INCLINED TO CONDONE THE DELAY IN THE INSTANT CASE AND DIRECT TH E CIT (A) TO DECIDE THE APPEAL ON MERIT IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL FILED BY THE A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 -11-20 11 . SD/- SD/- (SMT. ASHA VIJAYARAGHAVAN) (CHANDRA POOJARI) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 16 -11-2011. ITA NO.1125/HYD/2011- M/S. LINGA FURNITURE, HYD. L.L ========================== 4 COPY FORWARDED TO: 1. C/O DR. C.P. RAMASWAMI, ADVOCATE, FLAT NOS. 102 & 303, GITANJALI APARTMENTS, 108, SRINAGAR COLONY, HYDERAB AD. 2. ACIT, CIR-4(1), HYDERABAD. 3. CIT(A) - V, HYDERABAD. 4. CIT, AP, HYDERABAD. 5. THE D.R., ITAT, HYDERABAD. JMR*