M/s Akshaj Infra Pvt. Ltd., Delhi V. DCIT, CC-1, Chandigarh

ITA 1199/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6702 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-02-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 14A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 1199/CHD/2018 / ASSESSMENT YEAR : 2012-13 M/S AKSHAJ INFRA PVT. LTD., SCO 141-143, SECTOR 43-B, CHANDIGARH. VS THE DCIT, CIRCLE-1, CHANDIGARH. ./ PAN NO: AADCK1301N / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! &/ DATE OF HEARING : 05.02.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 28.02.2019 )+/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 16.02.2018 CIT(A)- 3 GU RGAON PERTAINING TO 201213 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER BEFORE ADDRESSING THE ISSUE RAISED BY THE AS SESSEE IN THE PRESENT APPEAL IT IS APPROPRIATE TO FIRST ADDRESS THE DELA Y OF 112 DAYS POINTED OUT BY THE REGISTRY IN THE FILING OF THE PRESENT A PPEAL BY THE ASSESSEE. 3. THE LD. AR INVITING ATTENTION TO THE CONDONATION OF DELA Y APPLICATION SUPPORTED BY AN AFFIDAVIT OF THE DIRECTOR OF THE ASSESSEE MR SURINDER SINGH AND THE AFFIDAVIT OF THE EMPLOYEES SH.DEEPAK UNIYAL SUBMITTE D THAT DELAY IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CA SE HAS OCCURRED FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE. INVITING ATTENTION TO THE APPLICATION FILED IT WAS SUBMITTED THAT THE DOCUMENTS FOR TH E FILING OF THE APPEAL WERE HANDED OVER TO THE ASSESSEES EMPLOYEE SH .DEEPAK UNIYAL TO BE FURTHER HANDED OVER TO THE COUNSEL. HOWEVER, THE SAID EMPLOYEE GOT BUSY IN HIS ENGAGEMENT CEREMONY IN MAY,2018 WHICH WAS SU BSEQUENTLY CULMINATED IN SOLEMNIZING HIS MARRIAGE. THE DELAY HAS OCCURR ED ON ITA-1199/CHD/2018 A.Y.2012-13 PAGE 2 OF 4 ACCOUNT OF HIS INADVERTENT PRE-OCCUPATION ON FACTS AS CA NVASSED. THE RELEVANT EXTRACT OF THE APPLICATION IS EXTRACTED HEREUN DER FOR READY REFERENCE : 1. THAT THE ABOVE INCOME TAX APPEAL AGAINST THE ORDER DATED 16.02.2018 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON WAS FILED ON 07.09.2018 WHICH WAS LATE BY 112 DAYS. 2. THAT THE APPELLATE ORDER WAS RECEIVED ON 19.03.2018 AND AS SUCH THE APPEAL WAS TO BE FILED BY 18.05.2018. 3. THAT I HANDED OVER THE DOCUMENTS TO SH. DEEPAK UNIY AL SON OF SH. B. D. UNIYAL RESIDENT OF HOUSE NO. 280, HALLOMAJRA, CHANDIGARH WHO IS EMP LOYED IN OUR COMPANY AS OFFICER SUPERVISOR TO BE FURTHER HANDED OVER TO SH. TEJMOHA N SINGH ADVOCATE FOR FILING OF AN APPEAL. 4. THAT SH. DEEPAK UNIYAL GOT BUSY IN HIS ENGAGEMENT C EREMONY WHICH WAS HELD ON 6TH OF MAY, 2018 AND SUBSEQUENTLY MARRIAGE WAS SOLEMNIZED ON THE 12TH OF DECEMBER, 2018. 5. THAT I WAS CALLED BY THE ASSESSING OFFICER FOR DEPO SIT OF OUTSTANDING DEMAND IN THE MONTH OF SEPTEMBER 2018 AND AT THAT JUNCTURE, I ENQ UIRED ABOUT THE FILING OF APPEAL FROM SH. DEEPAK UNIYAL. HE INFORMED THAT HE HAD FORGOTTE N TO GIVE THE REQUISITE DOCUMENTS TO SH. TEJMOHAN SINGH ADVOCATE. 6. THAT IMMEDIATELY CORRECTIVE MEASURES WERE INITIATED AND THE APPEAL WAS FILED THOUGH BELATEDLY ON 07.09.2018. 4. WE FIND THAT THESE FACTS ARE AFFIRMED BY THE AFFIDAVIT FILED BY THE DIRECTOR AND ALSO THE SAID EMPLOYEE. ACCORDINGLY, IN THE BA CKGROUND OF THESE FACTS AND SUBMISSIONS, IT WAS HIS PRAYER THAT THE D ELAY MAY BE CONDONED. 5. THE LD. SR. DR MS. CHANDRAKANTA OBJECTING TO THE CON DONATION OF DELAY APPLICATION SUBMITTED THAT THE ASSESSEE IS EXPECTED TO BE SERIOUS AND ATTENTIVE TO ITS RESPONSIBILITIES. HOWEVER, THE CONTENTS OF T HE AFFIDAVITS PLACED ON RECORD WERE NOT REBUTTED BY HER. 6. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. AGREEING WITH THE OBJECTIONS POSED BY THE LD . SR.DR FOR THE DEPARTMENT, WE ARE OF THE VIEW THAT IT GOES WITHOUT SAYING THAT THE ASSESSEE IS EXPECTED TO STAY ALIVE AND ALERT ABOUT HIS RIGHTS AND RESPONSIBILITIES AND CANNOT TREAT THE FILING OF THE APPEAL DOCUMENTS ETC., AS A CASUAL EXERCISE. HOWEVER, IN THE FACTS OF THE PRESENT CASE WE FIND THAT TH E ASSESSEE AS PER THE AFFIDAVITS ON RECORD AND APPLICATION AVAILABLE ON RECORD HAS APPARENTLY MADE THE NECESSARY MOTIONS FOR THE FILING OF THE APPEAL AS AFTER ENSURING THAT THE RELEVANT DOCUMENTS AVAILABLE TO THE COUNSEL CA N BE SAID TO BE JUSTIFIED TO ENTERTAIN THE BELIEF THAT ALL NECESSARY FORMALITIES HAVE BEEN DULY COMPLIED WITH. IN THE FACTS OF THE PRESENT CASE AS PER TH E AFFIDAVITS ON RECORD THE ASSESSEES EMPLOYEE SH.DEEPAK UNIYAL APPARE NTLY IN THE EXCITEMENT OF HIS ENGAGEMENT AND MARRIAGE CELEBRATIONS, LOS T TRACK OF HIS ITA-1199/CHD/2018 A.Y.2012-13 PAGE 3 OF 4 RESPONSIBILITIES AND FAILED TO OFFER THESE TO THE COUNSEL OF TH E ASSESSEE AS PER THE AFFIDAVIT ON RECORD. THE LAPSE AS PER THE CLAIM PUT FORTH WAS N OTICED BY THE DIRECTOR ONLY WHEN HE WAS CALLED UPON BY THE AS SESSING OFFICER FOR DEPOSITING THE OUTSTANDING DEMAND AS IS EVIDENT FROM PARA 6 OF THE A FFIDAVIT OF THE DIRECTOR AVAILABLE ON RECORD WHICH REMARKS REMAIN UN-REBUTTED ON RECORD. THE SAME IS EXTRACTED FOR READY REFERENCE : 6. THAT I WAS CALLED BY THE ASSESSING OFFICER FOR DEPOSIT OF OUTSTANDING DEMAND IN THE MONTH OF SEPTEMBER 2018 AND AT THAT JUNCTURE , I ENQUIRED ABOUT THE FILING OF APPEAL FROM SH. DEEPAK UNIYAL. HE INFORMED THAT HE HAD FORGOTTEN TO GIVE THE REQUISITE DOCUMENTS TO SH. TEJMOHAN SINGH ADVOC ATE. 7. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PAR TIES BEFORE THE BENCH AND THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THE DELAY IN THE FACTS OF THE CASE WAS CAUSED BY REASONS B EYOND THE CONTROL OF THE ASSESSEE. IT IS FURTHER NOTED THAT NO ADVANTAGE HA S BEEN DERIVED BY THE ASSESSEE BY FILING THE APPEAL LATE AND NO VESTED RIGHT OF T HE REVENUE HAS BEEN DISTURBED IN CASE THE DELAY IS CONDONED AND THE AP PEAL OF THE ASSESSEE IS DECIDED ON MERITS. ACCEPTING THE EXPLANATION OF THE ASSESSEE AS SUFFICIENT AND BONAFIDE, THE DELAY OF 112 DAYS IS CONDONED. T HE SAID ORDER WAS PRONOUNCED AT TIME OF HEARING ITSELF AND THE PARTIES WERE DIRECTED TO ARGUE THE APPEAL ON MERITS. 8. ADDRESSING THE ISSUES ON MERITS, THE LD. AR REFERRING TO THE IMPUGNED ORDER SUBMITTED THAT THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT BY THE ASSESSING OFFICER HAS BEEN INCORRECTLY UPHELD BY THE CIT (APPEALS). IT WAS HIS SUBMISSION THAT THE FACTS OF THE PRESENT CASE, TH E BASIS OF THE PENALTY IS THE ADDITION MADE UNDER SECTION 14A AND MEREL Y ON THE BASIS OF ADDITION ON THIS GROUND PENALTY IS LEVIED. HOWEVER, NOTICIN G THE FACT THAT THE IMPUGNED ORDER IS AN EX-PARTE ORDER, THE LD. AR WAS REQUIRED TO ADDRESS AS TO WHY THE ISSUE SHOULD NOT BE REMANDED TO THE CIT (A). HE WAS REQUIRED TO ADDRESS AS TO WHY THE ASSESSEE FAILED TO APPEAR BEFO RE THE SAID AUTHORITY. THE LD. AR SUBMITTED THAT THE ASSESSEE DUE TO CERTAIN PROBLEMS IN THE FAMILY, REMAINED SO ENGROSSED THAT EVEN THE ADDITION MADE IN THE ASSESSMENT ORDER ITSELF REMAINED UNCHALLENGED AND ON ACCO UNT OF THESE FACTS, THE ASSESSEE COULD NOT MAKE ANY REPRESENTATION B EFORE THE AO OR THE CIT(A). THE LD. SR.DR HAD NO OBJECTION IF THE ISSUE IS REMA NDED TO THE CIT(A) FOR TAKING A DECISION ON MERITS AFTER HEARING THE ASSESSEE. 9. ACCORDINGLY, ACCEPTING THE EXPLANATION OF THE ASSESSEE FOR REMAINING UNREPRESENTED BEFORE THE CIT(A), THE IMPUGNED ORDER IS SET ASIDE BACK TO ITA-1199/CHD/2018 A.Y.2012-13 PAGE 4 OF 4 THE FILE OF THE SAID AUTHORITY WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS ADVISED TO ENSURE FULL AND PROPER PARTICIPATION BEFORE THE SAID AUTHORITY AS FAILING WHIC H IT IS MADE CLEAR, THE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02.2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA S INGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ /RAVI KUMAR, PS, HYDERABAD. (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE 7. (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR