Shri Vinodchandra Ratilal Patel, Ahmedabad V. The Income tax Officer,Ward-6(1), Ahmedabad

ITA 1210/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0287 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH H JAIN
• Keywords: Depreciation; Principle of natural justice; Condonation of delay
• Section: 143(3); 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 1210/AHD/2013 / ASSESSMENT YEAR : 2008-09 SHRI VINODCHANDRA RATILAL PATEL, 8/B, SHANTINAGAR SOCIETY, B/H. HIGH SCHOOL, BAVLA, AHMEDABAD-382220 PAN : AJFPP 1784 L VS ITO, WARD-6(1), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ASHISH H. JAIN, AR REVENUE BY : SHRI PRASOON KABRA, SR DR / DATE OF HEARING : 07/09/2016 / DATE OF PRONOUNCEMENT: 18/10/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XI, AHMEDABAD DATED 27.11.2012 FOR ASSESSMENT YEAR 2008-09. 2. FOLLOWING GROUNDS ARE RAISED:- 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN NOT QUASHING THE ORDER PASSED U/S 143(3) OF THE ACT, AS THE SAID IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE AND FACTS OF THE CASE AND THEREFORE THE ORDER PASSED BY THE LEARNED AO SHOULD BE QUASHED AND ADDITION MADE THER EIN SHOULD BE DELETED IN FULL. 2. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE ADDITION UNDER SECTION 68 OF RS.10,04,520/-, AND THEREFORE THE LEA RNED AO SHOULD BE DIRECTED TO DELETE THE SAID DISALLOWANCE. 3. THE APPEAL IS LATE BY 87 DAYS. AN APPLICATION F OR CONDONATION OF DELAY WAS FILED, WHICH CONTAINS THAT THE APPEAL PAP ERS WERE DULY HANDED ITA NO. 1210/AHD/2013 SHRI VINODCHANDRA RATILAL PATEL VS. ITO AY : 2008-09 2 OVER TO THE PART-TIME ACCOUNTANT OF THE ASSESSEE SH RI M.M. GANDHI TO APPOINT A SUITABLE CHARTERTED ACCOUNTANT. DUE TO CE RTAIN UNAVOIDABLE REASONS, THE SAID SHRI M.M. GANDHI COULD NOT HANDOV ER THE PAPERS TO THE CHARTERED ACCOUNTANT WHICH RESULTED INTO THE DELAY OF FILING THE APPEAL. AN AFFIDAVIT OF SHRI M.M. GANDHI TO THIS EFFECT IS ALS O PLACED ON RECORD. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT AS TH E DELAY IN FILING THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, BUT THE ASSESSEE AS IN GOOD FAITH HAS HANDED OVER ALL THE RELEVANT PAPERS TO THE ACCO UNTANT TO DO THE NEEDFUL IN THIS BEHALF; THEREFORE, THE ASSESSEE WAS PREVENT ED BY SUFFICIENT CAUSE IN FILING THE APPEAL LATE. RELIANCE IS PLACED ON THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISI TION VS. MST. KATIJI & ORS., REPORTED IN 167 ITR 471 (SC) FOR THE PROPOSIT ION THAT WHEN TECHNICAL CONSIDERATIONS ARE PITTED AGAINST THE CAUSE OF SUBS TANTIAL JUSTICE, THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. 5. LD. DEPARTMENTAL REPRESENTATIVE IS HEARD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE FACTS AND CIRCUMSTANCE S GIVEN ABOVE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS REASONABLY EXPLAINED THE CAUSE OF DELAY IN FILING THE APPEAL WHICH IS CONDONED. 7. APROPOS THE GROUNDS OF APPEAL, THE LD. COUNSEL F OR THE ASSESSEE CONTENDS THAT DUE TO THE DIFFICULTIES FACED BY SHRI M.M. GANDHI, PART-TIME ACCOUNTANT OF THE ASSESSEE, HE COULD NOT ATTEND THE HEARINGS DURING THE COURSE OF FIRST APPEAL. CONSEQUENTLY, THE EX-PARTE ORDER CAME TO BE PASSED. ATTENTION IS INVITED TO THE FOLLOWING PARAGRAPH OF LD. AOS ORDER:- 2. IN RESPONSE TO THE NOTICES ISSUED 143(2) & 142 (1) SHRI DEEPAK THAKKAR, I.T.P. ATTENDED FROM TIME TO TIME AND FURNISHED THE DETAILS AS CALLED FOR. THE ASSESSEE NATURE OF BUSINESS IS WHOLESALE BUSINESS O F GRAIN AND CATTLE FEED. THE ASSESSEE SUBMITTED DETAILS OF HOUSE-HOLD EXPENS ES, ASSETS DETAILS, LIC ITA NO. 1210/AHD/2013 SHRI VINODCHANDRA RATILAL PATEL VS. ITO AY : 2008-09 3 PREMIUM RECEIPT AND HOUSE LOAN INTEREST DETAILS, BA NK STATEMENT COPY, P&L A/C, BALANCE SHEET, INTEREST A/C AND LOAN CONFIRMAT ION ETC. THE SUBMITTED DETAILS VERIFIED AND KEPT ON RECORDS. 7.1 THE LD. CIT(A), ON THE CONTRARY, OBSERVED AS UN DER:- 4.2. IT IS SUBMITTED THAT COPY OF P&L A/C., COPIES OF LE DGER CONFIRMATION ACCOUNTS OF VARIOUS DEPOSITS, DEPRECIATION LEDGER, INTEREST ACCOUNT LEDGER AND COPY OF THE BANK ACCOUNTS WERE FURNISHED DURING THE ASSESSM ENT PROCEEDINGS, BUT, THE AO HAD NOT ACKNOWLEDGED THESE THINGS IN THE ASS ESSMENT ORDER. HOWEVER, THE APPELLANT HAS NOT FURNISHED THESE EVID ENCES BEFORE ME. IT IS ALSO NOT KNOWN WHETHER THESE EVIDENCES WERE FURNISHED BE FORE THE AO. 7.2 IT IS CONTENDED THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT ALL THE RELEVANT PAPERS AND EXPLANATION WERE FILED BEFORE T HE LD. CIT(A) AND A WRONG FINDING OF FACT HAS BEEN GIVEN. LD. COUNSEL FOR THE ASSESSEE EXPRESSED APOLOGIES FOR THE ASSESSEES INABILITY TO PROSECUTE THE FIRST APPEAL PROPERLY. IT IS REQUESTED THAT A SUITABLE COST MAY BE IMPOSED AND THE APPEAL MAY BE SET ASIDE BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING H EARD. 8. LD. DEPARTMENTAL REPRESENTATIVE IS HEARD. 9. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. FROM THE FINDING OF THE LD. AO, IT APPEARS THAT THE ASSESSEE HAD SUBMITTED THE RELEVANT ACCOUNTS, BANK STATEMENTS ETC; HOWEVER, LD. CIT(A) S FINDING IS CONTRARY TO THE SAME. THEREFORE, IN THE INTEREST OF JUSTICE, W E ARE INCLINED TO SET ASIDE THE MATTER BACK TO THE FILE OF LD. CIT(A) ON FOLLOWING CONDITIONS:- A) THE ASSESSEE SHALL PAY A COST OF RS.5,000/- (RS. FI VE THOUSAND ONLY); B) THE LD. COUNSEL FOR THE ASSESSEE HAS UNDERTAKEN TO REPRESENT THE APPEAL EFFECTIVELY AND AVAIL OPPORTUNITIES WHICH SH OULD BE ADHERED TO BY THE ASSESSEE; ITA NO. 1210/AHD/2013 SHRI VINODCHANDRA RATILAL PATEL VS. ITO AY : 2008-09 4 C) THE CHALLAN FOR COST OF RS.5,000/- ALONGWITH COPY O F THIS ORDER WITH APPLICATION FOR FIXATION OF APPEAL SHOULD BE MADE T O THE LD. CIT(A). WITH THESE CONDITIONS, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 18 TH OCTOBER, 2016 AT AHMEDABAD. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 18/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD