SHRI OM PRAKASH SONWAL, JAIPUR V. INCOME TAX OFFICER , WARD-1(3), JAIPUR

ITA 1264/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5948 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 06-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHELA JCIT DHK
• Keywords: Period of limitation; Condonation of delay; Set aside
• Section: 271(1)(c); 147; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 335 & 1264/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. SHRI OM PRAKASH SONWAL, 108, KUNDANPURA, RAIGARO KA MOHALLA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 1(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BCZPS 3238 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHELA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24.09.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26/09/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST TWO SEPARATE ORDERS OF LD. CIT (APPEALS)-1, JAIPUR ARISING FROM ASSESSM ENT ORDER PASSED UNDER SECTION 144 READ WITH SECTION 147 OF THE IT ACT AND PENALTY ORDER PASSED UNDER SECTION 271(1)(C) RESPECTIVELY FOR THE ASSESSMENT YEAR 2007 -08. THERE IS A DELAY OF 395 DAYS IN THE APPEAL FILED ARISING FROM THE ASSESSMEN T ORDER. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHICH IS SU PPORTED BY THE AFFIDAVITS OF THE ASSESSEE AS WELL AS THE LANDLORD OF THE ASSESSEE. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE ASSESSEE HAS SHIFTED FROM JAIPUR TO BIKANER FOR EMPLOYMENT PURPOSE AND, THEREFORE, COULD NOT PURSUE THE APPEAL BEFORE THE LD. CIT (A) AS WELL AS COULD NOT TAKE THE STEPS FOR FILING THE APPEAL WITH IN THE PERIOD OF LIMITATION. THUS 2 ITA NOS. 335 & 1264/JP/2018 SHRI OM PRAKASH SONWAL, JAIPUR. THE LD. A/R HAS SUBMITTED THAT DUE TO UNAVOIDABLE C IRCUMSTANCES, THE ASSESSEE COULD NOT FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION AND, THEREFORE, THE DELAY IN FILING THE APPEAL MAY BE CONDONED. 2. ON THE OTHER HAND, THE LD. D/R HAS OPPOSED CONDO NATION OF DELAY AND SUBMITTED THAT THIS IS AN INORDINATE DELAY IN FILIN G THE APPEAL OF 395 DAYS. THE CONDUCT OF THE ASSESSEE IS VERY CASUAL AND VERY NEG LIGENT AS HE HAS NOT APPEARED BEFORE THE AO AS WELL AS BEFORE THE LD. CIT (A) AND BOTH THE AUTHORITIES HAVE PASSED EX PARTE ORDER. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS EXPLAINED THE DELAY OF 39 5 DAYS IN FILING THE APPEAL DUE TO THE REASON THAT AT THE RELEVANT POINT OF TIME THE A SSESSEE SHIFTED FROM JAIPUR TO BIKANER FOR EMPLOYMENT PURPOSE AND, THEREFORE, HE C OULD NOT COMMUNICATE WITH HIS COUNSEL WHICH HAS RESULTED IN NON-PROSECUTION OF TH E APPEAL BEFORE THE LD. CIT (A). THE ASSESSEE HAS THUS CONTENDED THAT THE ASSESSEE D ID NOT RECEIVE THE NOTICES AS WELL AS THE ORDER PASSED BY THE LD. CIT (A) IN TIME DUE TO HIS BEING OUT OF STATION AND, THEREFORE, THE DELAY IN FILING THE APPEAL IS N EITHER INTENTIONAL NOR WILLFUL BUT INADVERTENT AND UNINTENTIONAL BEYOND THE CONTROL OF THE ASSESSEE. THE ASSESSEE HAS FILED THE AFFIDAVIT IN SUPPORT OF THE APPLICATION A ND ALSO FILED THE AFFIDAVIT OF HIS LANDLORD IN JAIPUR WHERE THE ASSESSEE WAS EARLIER S TAYING. AFTER GOING THROUGH THE CONTENTS OF THE AFFIDAVITS AND APPLICATION FOR COND ONATION OF DELAY, I FIND THAT THE ASSESSEE HAS EXPLAINED THE CAUSE AS HE WAS OUT OF S TATION ON ACCOUNT OF HIS EMPLOYMENT. THOUGH THE REASON EXPLAINED BY THE ASS ESSEE IS FACTUALLY CORRECT, HOWEVER, DESPITE BEING OUT OF STATION, THE ASSESSEE SHOULD HAVE TAKEN THE APPROPRIATE STEPS THROUGH HIS COUNSEL/REPRESENTATIV E. FURTHER THE ASSESSEE NEITHER 3 ITA NOS. 335 & 1264/JP/2018 SHRI OM PRAKASH SONWAL, JAIPUR. APPEARED BEFORE THE AO NOR BEFORE THE LD. CIT (A) A ND BOTH THE AUTHORITIES HAVE PASSED EX PARTE ORDERS, THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DELAY OF 395 DAYS IN FILING THE APPEAL IS CONDONED SUBJECT TO COST OF RS. 2,000/-. 4. SINCE THE APPEAL OF THE ASSESSEE WAS DISMISSED B Y THE LD. CIT (A) EX PARTE AND THE ASSESSEE HAS EXPLAINED THE CAUSE OF NON-APP EARANCE IN THE AFFIDAVITS FILED IN SUPPORT OF THE CONDONATION OF DELAY, THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCES WHEN THE ASSESSEE ALSO DID NOT APPEAR BEFORE THE AO AND ORDER WAS PASSED EX PARTE AS WELL AS INTEREST OF JUSTICE, THE MATTER IS SET ASIDE TO THE RECORD OF THE AO FOR FRESH ADJUDICATION AFTER GIVING AN OPPOR TUNITY OF HEARING TO THE ASSESSEE. 5. THE APPEAL IN ITA NO. 1264/JP/2018 IS ARISING FR OM THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C). SINCE APPEAL IN QUANTUM M ATTER IS SET ASIDE TO THE RECORD OF THE AO, THEREFORE, THE PENALTY ORDER PASSED UNDE R SECTION 271(1)(C) WOULD NOT SURVIVE AND THE SAME IS SET ASIDE. THE AO IS AT LI BERTY TO INITIATE FRESH PROCEEDINGS, IF NECESSARY, AFTER THE OUT-COME OF THE QUANTUM SET ASIDE PROCEEDINGS. 6. IN THE RESULT, APPEAL IN ITA NO. 335/JP/2018 IS ALLOWED FOR STATISTICAL PURPOSE AND APPEAL IN ITA NO. 1264/JP/2018 IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26/09/20 19. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 26/09/2019. DAS/ 4 ITA NOS. 335 & 1264/JP/2018 SHRI OM PRAKASH SONWAL, JAIPUR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI OM PRAKASH SONWAL, JAIPUR. 2. THE RESPONDENT THE ITO WARD 1(3), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 335 & 1264/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR