Suchit Arvindbhai Patel, Gandhinagar V. ITO, Ward-4, Gandhinagar

ITA 1271/AHD/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7950 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Recovery proceedings; Period of limitation
• Section: 147; 148; 144; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NOS. 1271 & 1272/AHD/2018 / ASSESSMENT YEAR: 2007-08 SUCHIT ARVINDBHAI PATEL, B-14, M ADHAV VIHAR BUNGALOWS, TAPOVAN CIRCLE, SP RING ROAD, GANDHINAGAR-382424 PAN : ATHPP 6723 H VS. INCOME TAX OFFICER, WARD-4, GANDHINAGAR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PARIN SHAH, AR REVENUE BY : SHRI V.K. SINGH, SR DR ' / DATE OF HEARING : 02/07/2018 / DATE OF PRONOUNCEMENT: 02/07/2018 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANC E OF THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LEARNED CIT(A), GAND HINAGAR, AHMEDABAD DATED 20.03.2018 PASSED IN ASSESSMENT YEAR 2007-08. THE LEARNED ASSESSING OFFICER HAS IMPOSED PENALTIES UPON THE ASSESSEE UND ER SECTION 271F OF THE ACT VIDE ORDER DATED 29.06.2015 AND UNDER SECTION 2 71(1)(B) OF THE ACT VIDE ORDER DATED 26.06.2015. THE APPEALS BEFORE THE LE ARNED CIT(A) AGAINST BOTH THESE ORDERS WERE FILED ON 07.02.2018 AND THESE APP EALS WERE TIME BARRED BY 906 DAYS. THE LEARNED CIT(A) DID NOT CONDONE THE D ELAY IN BOTH THE APPEALS AND DISMISSED THE APPEALS BEING TIME BARRED. 2. THE BRIEF FACTS ARE THAT, ACCORDING TO AIR INFOR MATION, ASSESSEE HAD DEPOSITED CASH OF RS.16,97,000/- IN SAVINGS BANK AC COUNT. HE DID NOT FILE ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 2 RETURN OF INCOME FOR ASSESSMENT YEAR 2007-08. NOTI CE UNDER SECTION 148 OF THE INCOME-TAX ACT WAS ISSUED ON 25.03.2014 REQUIRI NG THE ASSESSEE TO FURNISH THE RETURN WITHIN 30 DAYS OF RECEIPT OF THE NOTICE. IT WAS NOT SUBMITTED. THE LEARNED ASSESSING OFFICER HAS FINAL IZED THE ASSESSMENT ORDER UNDER SECTION 144 R.W.S. 148 OF THE INCOME-TA X ACT ON 29.12.2014 DETERMINING THE TOTAL INCOME AT RS.23,67,710/-. SI NCE THE ASSESSEE DID NOT FILE THE RETURN UNDER SECTION 139(1) IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT ISSUED ON 25.03.2014 BY THE ASSESSIN G OFFICER, THE LEARNED ASSESSING OFFICER IMPOSED THE PENALTY UNDER SECTION 271F OF THE INCOME-TAX ACT AT RS.5,000/- VIDE ORDER DATED 29.06.2015. 3. THE ASSESSING OFFICER HAS ISSUED THREE NOTICES U NDER SECTION 143(2)/142(1) OF THE ACT. THESE NOTICES WERE REMAI NED UNCOMPLIED WITH AND, THEREFORE, HE IMPOSED PENALTY OF RS.30,000/- U NDER SECTION 271(1)(B) OF THE INCOME-TAX ACT VIDE ORDER DATED 26.06.2015. 4. AS OBSERVED EARLIER, THE APPEALS AGAINST THESE O RDERS WERE FILED AFTER EXPIRY OF 906 DAYS. THE LEARNED FIRST APPELLATE AU THORITY, THEREFORE, DISMISSED BOTH THE APPEALS BEING TIME BARRED. 5. LEARNED COUNSEL FOR THE ASSESSEE, AT THE VERY OU TSET, CONTENDED THAT AGAINST THE ASSESSMENT ORDER DETERMINING THE TAXABL E INCOME OF THE ASSESSEE AT RS.23,67,713/-, THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A). THIS APPEAL WAS TIME BARRED BY 1099 DAYS. SIMILARLY, AS SESSING OFFICER HAS IMPOSED PENALTY FOR CONCEALMENT OF INCOME UNDER SEC TION 271(1)(C) OF THE ACT VIDE ORDER DATED 26.06.2015. THIS APPEAL WAS T IME BARRED BY 906 DAYS BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) DISM ISSED THESE APPEALS. THE ORDERS OF THE CIT(A) WERE CHALLENGED BY THE ASS ESSEE IN ITA NOS. 1040 & 1041/AHD/2018. THE TRIBUNAL HAS CONDONED THE DEL AY OF 1099 DAYS AND 906 DAYS AND REMITTED BOTH THE ISSUES TO THE FILE O F THE LEARNED CIT(A) FOR ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 3 ADJUDICATION ON MERITS. HE PLACED ON RECORD THE COP Y OF THE TRIBUNALS ORDER DATED 11.05.2018. THE LEARNED DEPARTMENTAL REPRESE NTATIVE, ON THE OTHER HAND, WAS UNABLE TO CONTROVERT THIS SUBMISSION OF T HE LEARNED COUNSEL FOR THE ASSESSEE. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE DISCUSSION MADE BY THE TRIBU NAL, AFTER TAKING NOTE OF THE ASSESSEES EXPLANATION, WHILE CONDONING THE DEL AY, READS AS UNDER:- 5. AS ALLEGED ABOVE, THERE IS NO DISPUTE THAT THE APPEALS FILED BEFORE THE CIT(A) WERE TIME BARRED BY 1099 DAYS AND 906 DAYS. IN ORDER TO EXPLAIN THE DELAY THE ASSESSEE HAS FILED HIS AFFIDAVIT. THE AFF IDAVIT FILED BY THE ASSESSEE READS AS UNDER: 'I, SUCHIT ARVINDBHAI PATEL -AGED 35 YEARS RESIDING AT B-14, MADHAVVIHARBUNGLOWS, TAPOVAN CIRCLE, S.P. RING ROAD, CHANDKHEDA, AHMEDABAD DO HEREBY SOLEMNLY AFFI RM AND STATE AS UNDER:. THAT ASSESSMENT ORDER U/S 144 R.W.S. 147 WAS PASS ED ON 29/L2/2014 AND SERVED TO MY FATHER SHRI ARVINDBHAI S PATEL ON 31STMARCH, 2015 (TENTATIVE DATE AS FATHER LOST HIS MEMORY FROM 2011 DUE TO BRAIN STROKE). MY FATHER SHRIARVINDBHAI S PATEL WAS SUFFERED FRO M BRAIN STROKE AND WAS HOSPITALIZED ON 23/02/2011 IN APOLLO HOSPIT ALS INTERNATIONAL LTD. HE UNDERWENT CRANIOTOMY AND CLIP PING OF ANEURYSM ON 16/03/2011 AND KEPT UNDER OBSERVATION A ND DISCHARGED FROM HOSPITAL ON 28/03/2011 I.E. AFTER A LMOST 33 DAYS (48 HOURS WITH VENTILATED SUPPORT). SUBSEQUENTLY, H E WAS OBSERVED BY DOCTORS FROM TIME TO TIME. MY FATHER ALSO LOST H IS MEMORY AS HE WAS OPERATED SAH WITH ACOM ANEURYSM. NECESSARY PAPE RS TO PROVE THE BONAFIDE OF THE APPELLANT IS ATTACHED HER EWITH AS PER ANNEXURE 1. AGAIN IN 21/08/2013, ANGIOGRAPHY WAS DONE AT APOL LO HOSPITAL FOR HEART RELATED PROBLEMS. NECESSARY PAPERS TO PROVE T HE BONAFIDE OF THE APPELLANT IS ATTACHED HEREWITH AS PER ANNEXURE- 2. THEN AGAIN ON 03/04/2015 TO 07/04/2015, MY FATHER WAS ADMITTED IN STERLING HOSPITAL FOR BRAIN STROKE AND COMPLETE LEFT SIDE PARALYSIS. DUE TO REPETITIVE BRAIN STROKE AND PARAL YSIS HE LOST, HIS MEMORY AND TOOK VERY LONG TIME TO RECOVER FROM UNST ABLE MENTAL ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 4 CONDITION, NECESSARY PAPERS TO PROVE THE BONAFIDE I S ATTACHED HEREWITH AS PER ANNEXURE 3. DUE TO DETERIORATING HEALTH CONDITION, MY FATHER LOOSE HIS MEMORY AND ALSO NOT ABLE TO INFORM ME ABOUT RECEIPT OF ASS ESSMENT ORDER ON MY BEHALF. AT PRESENT ALSO MY FATHER SUFFERS FROM M EMORY LOSS. IN MONTH OF JUNE 2015, INCOME TAX DEPARTMENT CONT ACTING ME THROUGH PHONE CALL REGARDING OUTSTANDING DEMAND IN MY CASE BUT I INFORMED HIM THAT COPY OF ASSESSMENT ORDER WAS NOT SERVED TO ME. THERE WAS NO RECOVERY ACTION FROM INCOME TAX DEPA RTMENT IN YEAR 2016 AND TILL LAST MONTH ON DECEMBER, 2017 AND SUDD ENLY INCOME TAX DEPARTMENT ATTACHED MY PROPERTY I.E. CAR AND RE SIDENTIAL HOUSE BELONGING, TO ME AND ALSO ATTACHED RESIDENTIAL HOUS E OF MY MOTHER. DUE TO DEPARTMENTAL ACTION OF ATTACHMENT OF PROPERT IES AND RECOVERY ACTION I CAME TO KNOW ABOUT ASSESSMENT ORD ER AND PENALTY ORDERS WERE PASSED IN MY CASE. AGAINST THE ACTION OF ATTACHMENT AND SUBSEQUENT A CTION OF AUCTION BY WAY OF NOTICE IN NEWSPAPER, I ALONG WITH MY MOTH ER FILED SPECIAL CIVIL APPLICATION BEFORE HON'BLE GUJARAT HIGH COURT . HON'BLE HIGH COURT LIFTED THE ATTACHMENT OF PROPERTIES AND BANK ACCOUNTS AND ORDERED TO CONSIDERED THE DELAY IN FILING AN AP PEAL BEFORE YOUR HONOUR. COPIES OF JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IS ATTACHED HEREWITH AS PER ANNEXURE 4. DUE TO ABOVE FACTS, THERE IS A DELAY OF 1047 DAYS (APPROX.AS CORRECT DATE OF RECEIPT OF ORDER IS NOT KNOWN TO ASSESSEE) IN FILING .APPEAL FOR WHICH I PRAY YOUR HONOUR TO CONDONE THE SAME AND DE CIDE THE APPEALS ON MERITS. I DO HEREBY SOLEMNLY CONFIRM THAT WHATEVER IS STATE D ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. 6. THE LD.CIT(A) WAS NOT SATISFIED WITH THE EXPLANA TION OF THE ASSESSEE. ACCORDING TO THE LD.CIT(A), ASSESSEE HAD APPEARED B EFORE THE AO ALONG WITH HIS TAX CONSULTANT AND TOOK ADJOURNMENTS. HOWEVER, THEREAFTER HE FAILED TO APPEAR. WITH REGARD TO THE CONTENTION OF THE ASSESS EE THAT THE ASSESSMENT ORDER AS WELL AS PENALTY WAS SERVED ON HIS FATHER, THE LD.CIT(A) OBSERVED THAT THIS ASSERTION IS PATENTLY FALSE. THESE ORDERS WERE SERVED UPON THE ASSESSEE AND NOT ON HIS FATHER. ON ACCOUNT OF THESE TWO REAS ONS, THE LD.CIT(A) RECORDED A FINDING THAT THE ASSESSEE FAILED TO GIVE PLAUSIBLE EXPLANATION FOR FILING THE APPEAL BEYOND PERIOD OF LIMITATION. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. SUB-SECTION 5 OF SECTION 253 CONTEMPLATE S THAT THE TRIBUNAL MAY ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 5 ADMIT AN APPEAL OR PERMIT FILING OF MEMORANDUM OF C ROSS- OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSI ON 'SUFFICIENT CAUSE' EMPLOYED IN THE SECTION HAS ALSO BEEN USED IDENTICA LLY IN SUB-SECTION 3 OF SECTION 249 OF INCOME TAX ACT, WHICH PROVIDES POWERS TO THE LD. COMMISSIONER TO CONDONE THE DELAY IN FILING THE APP EAL BEFORE THE COMMISSIONER. SIMILARLY, IT HAS BEEN USED IN SECTIO N 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONSIDERATION BEFORE HON'BLE HIGH COURT AS WELL AS BEFORE THE HON'BLE SUPREME COURT, THEN, HON'BLE COURT WERE UNA NIMOUS IN THEIR CONCLUSION THAT THIS EXPRESSION IS TO BE USED LIBER ALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HON'BLE SUPREM E COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353: '1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARI NG THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A R ATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' 8. SIMILARLY, WE WOULD LIKE TO MAKE REFERENCE TO AU THORITATIVE PRONOUNCEMENT OF HON'BLE SUPREME COURT IN THE CASE OF N. BALAKRIS HNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 6 'RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILA TORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LE GAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUCH LEGAL REMEDY FOR THE RED RESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. DURING EFFLUX OF TIME NEWER CAUSES WOULD S PROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COURTS. SO A LIFE SPAN MUST BE FIXED FOR EACH REMED Y. UNENDING PERIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCER TAINTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FO UNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPU BLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF T IME. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE . THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTIO N 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTIO N SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI LAIN VS. K UNTAL KUMARI [AIR 1969 SC 575] AND STATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY [AIR 1972 SC 749]. IT MUST BE R EMEMBERED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TUR N DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATIO N DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILA TORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT W HEN THERE IS REASONABLE GROUND TO THINK THAT THE DELAY WAS OCCAS IONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEA N AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHE N COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICAN T THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS LOSS.' WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITUL ATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HON'BLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WHENEV ER THE REASONS ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 7 ASSIGNED BY AN APPLICANT FOR EXPLAINING THE CONDONA TION OF DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORIENTED APPROACH. 9. IN THE LIGHT OF THE ABOVE, LET US EXAMINE THE FA CTS. THE FIRST REASON ASSIGNED BY THE LD.CIT(A) FOR NOT ENTERTAINING EXPLANATION O F THE ASSESSEE IS THAT ACCORDING TO THE FINDING RECORDED BY THE AO HE HAD APPEARED BEFORE THE AO ON 14.11.2014, AND THEREAFTER DID NOT APPEAR. THERE FORE, IT SUGGESTS THAT THE ASSESSEE HAS KNOWLEDGE OF ASSESSMENT PROCEEDINGS AN D HE DELIBERATELY DID NOT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS. IN THE S ECOND REASON, THE LD.CIT(A) HAS OBSERVED THAT DEMAND NOTICE AND ASSES SMENT ORDER WERE SERVED UPON THE ASSESSEE ON 5.1.2015 AND NOT ON HIS FATHER ON 31.3.2015. SHE FURTHER OBSERVED THAT SHRI A.M. SHAH HAS MADE A REQ UEST TO THE AO FOR STAY OF RECOVERY PROCEEDINGS AND THIS LETTER WAS WRITTEN ON 13.9.2016. THUS, THERE IS NO PLAUSIBLE REASON FOR NOT FILING THE APPEAL UP TO 7.2.2018. A PERUSAL OF THE ABOVE CIRCUMSTANCES WOULD SUGGEST THAT NO DOUBT THE RE IS SOME NEGLIGENCE AT THE END OF THE ASSESSEE FOR CONDUCTING HIS INCOME T AX PROCEEDINGS. THERE IS NO MATERIAL BEFORE US TO ASCERTAIN WHETHER THE ASSESSE E HAS APPEARED BEFORE THE AO ON 14.11.2014. SIMILARLY, THERE IS NOTHING TO DO UBT THAT THE ASSESSMENT ORDER MIGHT HAVE NOT BEEN SERVED UPON FATHER OF THE ASSESSEE. ORIGINAL ACKNOWLEDGE RECEIPT HAS NOT BEEN PLACED ON THE RECO RD. HOWEVER, CONSIDERING THE CASE OF AN INDIVIDUAL UPON WHOM TAX LIABILITY O F RS.22,72,460/- HAS BEEN FASTENED BY VIRTUE OF AN EX PARTE ORDER WHICH HAS B EEN FURTHER COMPOUNDED BY IMPOSITION OF PENALTY OF RS.7,40,871/- WE ARE OF THE VIEW THAT PUNISHMENT IN THE SHAPE OF TAX LIABILITY IS FAR DISPROPORTIONA TE WITH THE ALLEGED NEGLIGENCE. THE POSSIBILITY OF ILLNESS OF HIS FATHE R COULD NOT BE RULED OUT. HIS HOUSE WAS ATTACHED AND HE HAS TO APPROACH HON'BLE H IGH COURT BY WAY OF WRIT PETITION BEARING SCA NO.1403 OF 2018. COPY OF WHICH IS AVAILABLE AT PAGE NO.67 OF THE PAPER BOOK. IT IS PERTINENT TO OB SERVE THAT BY MAKING APPEALS TIME BARRED THE ASSESSEE WOULD NOT ACHIEVE ANYTHING. THE TAX LIABILITY WOULD BE CONFIRMED AND IT COULD BE RECOVERED. THERE FORE, IT CANNOT BE ALLEGED THAT THE ASSESSEE HAS ADOPTED THIS MODUS OPERANDI A S A STRATEGY. IT MIGHT BE A BONA FIDE NEGLIGENCE. 10. IN VIEW OF THE ABOVE DISCUSSION, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE LD.CIT(A) AND REMIT THE ISSUES TO THE FI LE OF THE LD.CIT(A) FOR FRESH ADJUDICATION. CONSIDERING THE ALLEGED NEGLIGENCE IN CONDUCTING THE PROCEEDINGS BEFORE THE LD. REVENUE AUTHORITIES BELO W, WE IMPOSE A COST OF RS.2,500/- UPON THE ASSESSEE ON EACH APPEAL. THE AS SESSEE SHALL DEPOSIT THE COST WITHIN ONE MONTH FROM THE RECEIPT OF ORDER. TH E LD. CIT(A) SHALL DECIDE BOTH THE APPEALS ON MERIT AFTER PROVIDING REASONABL E OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE SHALL COOPERATE WITH THE PRO CEEDINGS BEFORE LD. CIT(A) AND SHALL NOT SEEK UNNECESSARY ADJOURNMENT UNLESS S ITUATION SO WARRANTS. ITA NOS. 1271 & 1272/AHD/2018 SUCHIT ARVINDBHAI PATEL VS. ITO FOR AY: 2007-08 8 7. THERE IS NO DISPARITY ON FACTS. SAME EXPLANATIO N HAS BEEN GIVEN IN THESE APPEALS. THEREFORE, RESPECTFULLY FOLLOWING OU R ORDER, WE CONDONE THE DELAY IN FILING BOTH THE APPEALS BEFORE THE LEARNED CIT(A). WE HAVE IMPOSED A COST OF RS.2,500/- UPON THE ASSESSEE ON E ACH APPEAL. WE IMPOSE THAT VERY COST IN THESE APPEALS ALSO. BOTH THESE A PPEALS ARE THUS ALLOWED FOR STATISTICAL PURPOSES AND THE ISSUES ARE ACCORDINGLY REMITTED BACK TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATION ON MERITS. 8. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 2 ND JULY, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 02/07/2018 BIJU T., SR.PS ' '() *) / 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 1. DATE OF DICTATION- 3 PAGES DICTATION PAD ATTACHED ..02.07.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02.07.2018 OTHER MEMBER 02.07.2018. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. - 02.07.2018. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 02.07.2018.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK03.0 7.2018 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 8. DATE OF DESPATCH OF THE ORDER