Sh. Hirachand R. Pagariya, Pune V. ITO, Ward 2(1), Pune

ITA 1201/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9861 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-10-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIN
• Keywords: Opportunity of being heard; Period of limitation; Reasonable cause; Condonation of delay; Ignorance of law
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1201/PN/10 (ASSTT. YEAR : 2 000-01) SHRI HIRACHAND RAICHAND PAGARIYA, APPELLANT 45, RUTURAJ SOCIETY, SATARA ROAD, PUNE 411037 PAN : ABKPP 5224 G V. INCOME TAX OFFICER, WARD 2[1] RESPONDENT PUNE APPELLANT BY : SHRI K ISHOR PHADKE RESPONDENT BY : SMT. VIN ITA MENON DATE OF HEARING : 31/10/1 2 DATE OF PRONOUNCEMENT : 31-10-12 O R D E R PER R.S. PADVEKAR, JM THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING T HE IMPUGNED ORDER OF THE LD CIT(A) -II, PUNE DATED 28.06.2010 FOR TH E A.Y. 2000-01. 2. GROUND NO. 1 READS AS UNDER : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.[A] OUGHT TO HAVE CONDONED THE DELAY IN FILIN G THE APPEAL FILED BEFORE HIM BY THE APPELLANT ASSESSEE AND OUGHT TO H AVE DECIDED THE APPEAL OF THE APPELLANT ON MERITS. THE DELAY IN F ILING THE APPEAL BEFORE THE LEARNED C.I.T.[A] MAY PLEASE BE CONDONED AND TH E APPEAL MAY PLEASE BE RESTORED TO THE FILE OF THE LEARNED C.I.T.[A] WI TH A DIRECTION TO DECIDE THE APPEAL ON MERITS. 3. WE HAVE HEARD THE PARTIES. THE LD COUNSEL SUBMI TS THAT IN ASSESSEES CASE IN OTHER YEARS, THE TRIBUNAL HAS CO NDONED THE DELAY AND SET ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO DECIDE THE APPEALS ON MERIT. THE LD. COUNSEL ALSO FILED THE COPY OF THE TRIBUNAL ORDER IN ASSESSEES OWN CASE IN ITA NOS. 1174 TO 1117/PN/201 0 DATED 31 ST MARCH 2011. THE OPERATIVE PART OF THE ORDER OF THE TRIBU NAL IS AS UNDER : 6. HAVING GONE THROUGH THE FIRST APPELLATE ORDER I N VIEW OF THE SUBMISSIONS MADE BY THE PARTIES, WE FIND THAT THE L D CIT(A) HAS REJECTED THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE FIRST APPEAL AFTER ABOUT 2 YEARS 12 DAYS DELAY. DISCUSSING SEVERAL D ECISIONS, THE LD CIT(A) HAS COME TO THE CONCLUSION THAT THERE WAS NO SUFFIC IENT CAUSE FOR NOT PRESENTING THE APPEALS WITHIN THE PRESCRIBED PERIO D U/S. 249(2). HE HAS OBSERVED THAT THE LANGUAGE USED IN SECTION 249(3) I S SUFFICIENT CAUSE 2 ITA NO. 1201/PN/10 SHRI HIRACHAND RAICHAND PAGARIYA A.Y.2000-01 AND NOT REASONABLE CAUSE. SUFFICIENT CAUSE IS MUCH MORE STRINGENT THAN THE TERM REASONABLE CAUSE AND EVEN IF A CAUS E IS REASONABLE, IT HAS TO BE ASCERTAINED WHETHER IT WAS SUFFICIENT CA USE OR NOT. AS PER HIM, THE ONLY REASON EXPLAINED BY THE ASSESSEE FOR THE D ELAY REMAINED WAS IGNORANCE OF LAW. HE HAS NOT AGREED WITH THIS EXPL ANATION OF THE ASSESSEE ABOUT HIS IGNORANCE OF LAW WITH THIS OBSERVATION T HAT AGAINST PENALTY ORDER PASSED U/S. 271(1)(C ) BASED ON THE SAME ASSE SSMENT ORDER, THE ASSESSEE HAS PROMPTLY FILED APPEALS FOR ALL THESE YEARS ON 28.7.2008 I.E. WITHIN THE PRESCRIBED PERIOD OF TIME. THE APPEALS AGAINST THE ASSESSMENT ORDERS FOR THE YEARS UNDER CONSIDERATION HAVE BEEN FILED ONLY ON 16.12.2010. THE LD CIT(A) HAS OBSERVED FURTHER THA T, HAD THE APPELLANT CHOSEN TO FILE APPEALS AGAINST THE ASSESSMENT ORDER S ALONG WITH PENALTY ORDER, BUT STILL, THERE WOULD HAVE BEEN A DELAY OF SIX MONTHS. THESE UNDISPUTED FACTS, IN OUR VIEW, ITSELF SUGGEST THAT THERE WAS IGNORANCE OF LAW ON THE PART OF THE ASSESSEE AND HE ACTED ON TH E ADVICE OF HIS AUTHORISED REPRESENTATIVE TO PREFER APPEALS AGAINS T THE ORDER OF PENALTY PASSED U/S. 271(1)(C ) OF THE ACT, BUT NOT AGAINST THE ASSESSMENT ORDERS. WE AGREE WITH THE OBSERVATIONS OF THE LD CIT(A) TH AT HAD THE APPELLANT CHOSEN TO FILE APPEALS AGAINST THE ASSESSMENT ORDER S ALONG WITH PENALTY, STILL THE DELAY OF ABOUT SIX MONTHS WAS REQUIRED T O BE EXPLAINED BY THE ASSESSEE. AT THE SAME TIME, WE DO NOT FIND REASON T O DOUBT THE EXPLANATION OF THE ASSESSEE ABOUT IGNORANCE OF LAW SINCE, OTHERWISE, THERE WAS NO REASON WITH THE ASSESSEE IN NOT PREFERRING FIRST APPEALS AGAINST THE ASSESSMENT ORDERS, IF THE ASSESSEE WOULD HAVE B EEN PROPERLY ADVISED. IT IS AN ESTABLISHED PROPOSITION OF LAW THAT FOR T HE FAULT ON THE PART OF THE LD. COUNSEL OF THE ASSESSEE, THE ASSESSEE CANNOT BE ALLOWED TO SUFFER. NOWHERE IN THE FIRST APPEALLATE ORDER, IT IS MENTIO NED AS TO WHEN ASSESSEE WAS SERVED WITH THE ASSESSMENT ORDER, TO C OMPUTE THE DELAY AS WORKED OUT BY THE LD CIT(A), THUS THERE IS NO REASO N TO DOUBT THE EXPLANATION OF THE ASSESSEE THAT THE ASSESSEE CAME TO KNOW ABOUT PASSING OF THE ASSESSMENT ORDER U/S. 144 READ WITH SECTION 153C OF THE ACT ONLY ON RECEIPT OF PENALTY ORDER. THUS, THE AS SESSEE HAS TO EXPLAIN THE DELAY IN FILING HIS APPEALS UNDER CONSIDERATION AGAINST THE ASSESSMENT ORDERS ON RECEIPT OF THE PENALTY ORDER. AS DISCUSS ED ABOVE, THE CIRCUMSTANCES OF THE PRESENT CASE SUGGEST THAT THER E WAS IGNORANCE OF PROVISIONS OF THE ACT ON THE PART OF THE ASSESSEE I N NOT PREFERRING THE FIRST APPEALS IN TIME AGAINST THE ASSESSMENT ORDERS. SUF FICIENT CAUSE IS NOT A QUESTION OF PRINCIPLE, BUT A QUESTION OF FACT. HEN CE, WHETHER TO CONDONE THE DELAY OR NOT DEPENDS UPON THE FACTS AND CIRCUMS TANCES OF EACH CASE AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY DEPE NDS ONLY ON THE FACT PLACED BY THE APPLICANT. STILL, THE WORDS SUFFICI ENT CAUSE OUGHT TO RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SU BSTANTIVE JUSTICE WHEN NO IGNORANCE OR INACTION OR FOR WANT OF BONAFIDE IMPUTABLE TO THE APPELLANT. WORD USED IN SECTION 249(3) IS MAY A ND NOT SHALL AND THE FIRST APPELLATE AUTHORITY IS GIVEN A DISCRETION TO ADMIT AN APPEAL EVEN AFTER THE EXPIRATION OF PERIOD OF LIMITATION PRESCR IBED U/S. 249(2). THE DISCRETION IS OBVIOUSLY TO BE EXERCISED WHERE SUFFI CIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE TIME IS MADE OUT B Y THE APPELLANT. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE PRES ENT CASE AS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE WITH THE ASSESSEE IN NOT PREFERRING THE FIRST APPEALS IN TIM E. WE, THUS, CONDONE THE DELAY IN PREFERRING THE FIRST APPEALS AND SET A SIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO DECIDE THE APPEALS ON MERI TS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE PARTIE S. WE, THEREFORE, CONDONE THE DELAY IN THIS APPEAL ALS O AND SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE APPEAL ON MERIT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NO. 1201/PN/10 SHRI HIRACHAND RAICHAND PAGARIYA A.Y.2000-01 THE ORDER IS PRONOUNCED IN THE OPEN COURT AFTER CO NCLUSION OF THE HEARING ON 31 ST OCTOBER 2012. SD/- SD/- (R.K. PANDA) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 31ST OCTOBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-II, PUNE 4. THE CIT(A)-II, PUNE 5. THE D.R. B BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE