Viney Miglani, Ludhiana V. ITO, W-3(3), Ludhiana

ITA 1283/CHANDI/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8284 (ITAT-CHANDIGARH)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 31-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1283/CHD/2 017 ASSESSMENT YEAR: 2011-12 SHRI VINEY MIGLANI, VS. THE ITO, 539/15/C-3, NEW VISHNU PURI, WARD 3(3), ST. NO. 1, NEW SHIVPURI ROAD, LUDHIANA. LUDHIANA. PAN NO. : AGZPM0216D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEY MIGLANI (ASSESSEE IN PERSON) RESPONDENT BY : SHRI MANJIT SINGH,SR.DR DATE OF HEARING : 02.01.2018 DATE OF PRONOUNCEMENT : 22.02.2018 ORDER PER DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 10.08.2017 OF LD. CIT(APPEA LS)-1 LUDHIANA PERTAINING TO 2011-12 ASSESSMENT YEAR ON VARIOUS GROUN DS ON MERIT INCLUDING GROUND NO. 2 WHEREIN THE CHALLENGE IS POSED TO T HE DISMISSAL OF ASSESSEE'S APPEAL ON THE GROUNDS OF LIMITATION. 2. AT THE TIME OF HEARING, ASSESSEE WAS PRESENT IN PERS ON. THE PARTIES WERE HEARD ONLY ON GROUND NOS. 1 AND 2 RAISED IN THE P RESENT APPEAL. THE SAME READ AS UNDER : 1. THAT THE LEARNED CIT (A) ERRED IN EYES OF LAW AN D FACTS OF THE CASE BY NOT CONDONING DELAY IN FILING OF APPEAL BEFORE HIM. 2. THE ID CIT (A) WRONGLY REJECTED THE CONDONATION APPLICATION EVEN AFTER ACKNOWLEDGING THE FACT THAT ASSESSEE WAS UNDER INTENSE DISTRESS, MENTALLY, PHYSICALLY AND FINANCIALLY DUE TO WHICH APPEAL COULD NOT BE FILED IN TIME. 3. THE ASSESSEE RELYING UPON THE WRITTEN SUBMISSIONS FILED BEFORE THE BENCH SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE, T HE ASSESSEE HAD FILED AN APPEAL BEFORE THE CIT(A) ASSAILING THE ADDITIONS MADE BY THE AO. THE ASSESSEE, IT WAS SUBMITTED, ASSAILED THE ORDER PASSED U/S 144 WITHOUT PROVIDING THE ASSESSEE A REASONABLE OPPORTUNITY. THESE ARGUMENTS, IT WAS SUBMITTED, HAD NOT BEEN CONSIDERED ON MERIT BY THE ITA 1283/CHD/2017 A.Y. 2011-12 PAGE 2 OF 3 CIT(A) AS HE REFUSED TO CONDONE THE DELAY IN THE FILING OF T HE PRESENT APPEAL. THE RECORD SHOWS THAT AS PER THE SUBMISSIONS RE CORDED IN PARA 2 OF THE IMPUGNED ORDER THE ASSESSEE PLEADED THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT PARTICIPATE AND THER EAFTER ALSO WAS HANDICAPPED AS HE HAD UNDERGONE SEVERE BUSINESS AND PERSONAL IRREPARABLE DAMAGES. FOR READY REFERENCE, RELEVANT EXTRA CT FROM THE SAID PARA IS REPRODUCED HEREUNDER : THE APPELLANT'S LIFE AND BUSINESS HAD UNDERGONE SE VERE AND IRREPARABLE DAMAGES, WHICH FACTS WERE SHARED WITH THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS FOR A.YS. 2012-13 & 2013-14. DURING THE SUBSEQUENT ASSESSMENT PROCEEDINGS, IT WAS VERIFIED THAT THE AP PELLANT'S BUSINESS PREMISES HAD BEEN ENTIRELY GUTTED IN A MAJOR FIRE I N JULY 2013. IT WAS FURTHER STATED THAT THE APPELLANT HAD AVAILED LOANS FROM BANKS AND FINANCIAL INSTITUTIONS TO THE TUNE OF RS.4 CROR ES AND SINCE THE BUSINESS HAD RUN INTO LOSSES, THE LOANS COULD NOT BE SERVICED. LEGAL PROCEEDINGS WERE INITIATED AND THE APPELLANT'S PROPERTIES WERE STATED TO HAVE BEEN AUCTIONED. WITH THESE INCIDENTS, THE APPE LLANT IS SAID TO HAVE BEEN AFFECTED PHYSICALLY AND LOST HIS HEARING ABILITY TO A LARGE EXTENT. IT WAS, THUS STATED THAT THE APPELLANT COULD NOT FI LE THE APPEAL AGAINST THE ORDER OF ASSESSMENT AS HE WAS UNDER INTENSE DIS TRESS, MENTALLY, PHYSICALLY AND FINANCIALLY AND HAD NO IDEA OF WHAT TO DO UNDER THE CIRCUMSTANCES. ON THE AFORESAID GROUNDS, THE APPELLANT PLEADED FOR CONDON ATION OF DELAY IN FILING THE INSTANT APPEAL. (EMPHASIS SUPPLIED) 3.1 ACCORDINGLY, IT WAS HIS PRAYER THAT THE DELAY MAY BE CONDONED . 4. THE LD. SR.DR RELIED UPON THE IMPUGNED ORDER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. CONSIDERING THE SUBMISSIONS FILED AND THE ARGUMENT S ADVANCED BEFORE THE CIT(A), IT IS NOTED THAT NO EVIDENCE OF ANY HEAR ING DISABILITY OCCURRING DURING THE PERIOD HAS BEEN ATTACHED BY THE A SSESSEE. IT IS SEEN THAT THE TAX PAYER TOOK THE PLEA OF A FIRE AT A SPECIFIC POINT OF TIME I.E. J ULY, 2013 IN THE BUSINESS PREMISES OF THE ASSESSEE, HOWEVER WHETHER IT WAS AN ACCEPTED FACT AND FURTHER WHETHER THE EXTENT OF THE DA MAGE AS PER ASSESSEE'S CLAIM WAS SUCH THAT THE PREMISES OF THE ASSE SSEE, AS STATED, HAD BEEN ENTIRELY GUTTED IS NOT COMING OUT FROM THE REC ORD. NO EVIDENCE ON THESE CLAIMS IS ALSO AVAILABLE ON RECORD NOR ANY FINDING HAS BEEN GIVEN BY THE CIT(A) ON THESE ARGUMENTS, ALTHOUGH IT IS SEEN THA T THE ARGUMENTS HAVE BEEN ADVANCED. SIMILARLY QUA THE HEARING LOSS, IT IS S EEN THAT IN THE ABSENCE OF ANY MEDICAL EVIDENCES IN SUPPORT OF THE CLAIM , THE OCCASION FOR THE CIT(A) TO CONSIDER THE CLAIM ADMITTEDLY DID NOT ARISE. T HE ARGUMENTS ADVANCED IN THE PRESENT PROCEEDINGS BY THE LD. AR AGAIN DE-HORS FACTS AND EVIDENCES DOES NOT ADDRESS THESE ISSUES. ACCORDINGLY, W E NOTE THAT THE OCCASION TO CONSIDER FOR THE CIT(A) ON FACTS WHETHER THES E TWO FACTORS WERE ITA 1283/CHD/2017 A.Y. 2011-12 PAGE 3 OF 3 SUFFICIENT TO CAUSE DISTRESS MENTALLY, PHYSICALLY AND FINANCIAL AND THEN BE CONSIDERED TO BE CONTRIBUTORY FACTORS FOR THE DELAY IN FILING OF THE APPEAL DID NOT ARISE AS FIRST AND FOREMOST FOR RECORDING ANY POSIT IVE FINDING OF THE TWO EVENTS CLAIMED SUPPORTING FACTS NECESSARILY BY WAY O F EVIDENCES HAVE TO BE PLACED ON RECORD BY THE ASSESSEE. ACCORDINGLY, FOR WANT OF NECESSARY FACTS AND EVIDENCES ON RECORD IN THE INTERESTS OF SUBSTA NTIAL JUSTICE, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) W ITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE AS SESSEE A SPECIFIC OPPORTUNITY TO FIRST ADDRESS THE DELAY. THE ASSESSE E IS PERMITTED TO FILE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM. . NO DOUBT IN THE FACTS OF EACH AND EVERY CASE, THE SPECIFIC CAUSE FOR A DELAY IN FILING OF THE APPEAL WILL VARY FROM CASE TO CASE, HOWEVER, FIRST THE FACTS HAVE TO BE PLEADED ON THE BASIS OF EVIDENCES AS MERE ARGUMENTS DEHORS EVIDENCES W ILL HAVE NO RELEVANCE. ACCORDINGLY, WITH THE SAID OBSERVATIONS, THE IMP UGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A). THE ASSESSEE IN ITS OWN INTERESTS IS DIRECTED TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT (A) FAIRLY AND FULLY AND EXPLAIN THE DELAY OF THREE YEARS AS POINTED OUT BY T HE CIT(A). THE CIT(A) AFTER ADDRESSING THE DELAY, IF NEED BE, SHALL THEN PROC EED TO DECIDE THE APPEAL ON MERITS. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 4. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.02. 2018. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.