Smt. Rinaben Sunit Choksi, Ahmedabad V. The Income Tax Officer, Ward-11(2), Ahmedabad

ITA 1305/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4114 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Section: 147; 271(1)(c); 143(3)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NOS. 1305 & 1306/AHD/2016 ( ASSESSMENT YEAR : 2010-11) SMT. RINABEN SUNIT CHOKSI 62, SOONA ROOPA APARTMENT, OPP: LAL BUNGLOW, C. G. ROAD, AHMEDABAD 380 015 / VS. I.T.O. WARD 11(2), AHMEDABAD ./ ./ PAN/GIR NO. : AGYPC5596K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P. M. MEHTA, A.R. / RESPONDENT BY : SHRI APOORVA BHARDWAJ, SR.D.R. DATE OF HEARING 12/02/2019 !'# / DATE OF PRONOUNCEMENT 15/02/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE RESPECTIVE QUANTUM AND PENALTY ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, AHMEDABAD ( CIT(A) IN SHORT), DATED 21.03.2016 & 23.03.2016 ARISING IN TH E ASSESSMENT ORDER DATED 27.12.2013 AND PENALTY ORDER DATED 27.05.2014 PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) R.W.S. 147 AND UNDER S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT) CON CERNING AY 2010-11. ITA NOS. 1305 & 1306/AHD/16 [SMT. RINABEN SUNIT CHOKSI VS. ITO] A.Y. 2010-11 - 2 - 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE SUBMITTED WITH REFERENCE TO ITA NO. 1305/A HD/2016 THAT CIT(A) HAS REFUSED TO ADJUDICATE THE APPEAL ON MERI TS ON THE GROUND THAT APPEAL HAS BEEN FILED BELATEDLY BY FIVE MONTHS . IN THE CONTEXT, THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS FILE D AFFIDAVIT NARRATING THE REASONS FOR SMALL DELAY AND FURTHER SUBMITTED T HAT THE CIT(A) OUGHT TO HAVE ADMITTED THE APPEAL BY EXERCISING THE STATUTORY DISCRETION VESTED IN IT FOR CONDONATION OF DELAY. 3. WE HAVE PERUSED THE AFFIDAVIT DATED 16.11.2018 FILED BY THE ASSESSEE IN THIS REGARD. AS PER THE SWORN AFFIDAVI T STATEMENT, THE ASSESSEE IS A HOUSEWIFE AND DID NOT HAVE ANY TAXABL E INCOME FOR THE AY 2010-11. IT WAS AFFIRMED THAT THE RESPONSIBLE P ERSON HANDLING THE INCOME TAX MATTERS HAS NOT FORWARDED THE ORDER PASS ED BY THE AO UNDER S.143(3) R.W.S. 147 OF THE ACT DATED 27.12.20 13 TO THE ASSESSEE DUE TO OLD AGE AND PECULIAR HEALTH PROBLEM. THIS H AS RESULTED IN DELAY OF FIVE MONTHS. WE FIND THAT THE ASSESSEE HAS GIVE N REASONABLE EXPLANATION HAVING REGARD TO THE BACKGROUND OF THE ASSESSEE. THE HONBLE HIGH COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS. MST. KATIJI & ORS. 167 ITR 471 (SC) HAS LAID DOWN T HE GUIDING PRINCIPLES FOR ADOPTING A LIBERAL APPROACH IN THE M ATTER OF CONDONATION OF DELAY. THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT ARE REPRODUCED HEREUNDER: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T 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 JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS COND ONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS AFTER HEARING THE PARTIES. 1. ' ANY APPEAL OR ANY APPLICATION, OTHER THAN AN A PPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE COD E OF CIVIL PROCEDURE, 1908, MAY BE ADMITTED AFTER THE PRESCRIB ED PERIOD IF THE APPELLANT OR THE APPLICANT SATISFIES THE COU RT THAT HE HAD ITA NOS. 1305 & 1306/AHD/16 [SMT. RINABEN SUNIT CHOKSI VS. ITO] A.Y. 2010-11 - 3 - SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR M AKING THE APPLICATION WITHIN SUCH PERIOD.' 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED DOES NOT M EAN THAT PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE A PPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE O F A NON- DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECT ED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 4. THE PRINCIPLES ENUNCIATED BY THE HONBLE COURTS SAY IT ALL. 5. IN THE LIGHT OF FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENTLY DISCHARGED ITS BURDEN FOR SMALL DELAY. CONSEQUENTLY, WE DIRECT THE CIT(A) TO CONDONE THE D ELAY OCCURRED IN FILING THE APPEAL BEFORE IT AND ADMIT THE APPEAL FO R ADJUDICATION ON MERITS IN ACCORDANCE WITH LAW. ACCORDINGLY, APPEAL IN ITA NO. 1305/AHD/2016 IS RESTORED TO THE FILE OF THE CIT(A) FOR DE NOVO ADJUDICATION ON MERITS IN ACCORDANCE WITH LAW AFTER GIVING FAIR OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, QUANTUM APPEAL OF THE ASSESSEE IN ITA NO. 1305/AHD/2016 IS ALLOWED FOR STATISTICAL PURPOSES. 7. THE APPEAL IN ITA NO. 1306/AHD/2016 IS WITH REFE RENCE TO PENALTY UNDER S.271(1)(C) OF THE ACT ARISING FROM T HE QUANTUM APPEAL DISMISSED IN LIMINE AS APPEALED IN ITA NO. 1305/AHD /2016. IN THE LIGHT OF THE RESTORATION OF THE QUANTUM APPEAL, THE PENALTY ORDER ITA NOS. 1305 & 1306/AHD/16 [SMT. RINABEN SUNIT CHOKSI VS. ITO] A.Y. 2010-11 - 4 - PASSED BY THE CIT(A) IS ALSO SET ASIDE AND RESTORED BACK FOR FRESH ADJUDICATION HAVING REGARD TO THE FINDINGS OBTAINED IN THE QUANTUM PROCEEDINGS AND IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 8. IN THE RESULT, PENALTY APPEAL OF THE ASSESSEE IN ITA NO. 1306/AHD/2016 IS ALSO ALLOWED FOR STATISTICAL PURPO SES. 9. IN THE COMBINED RESULT, BOTH THE APPEALS FILED B Y THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 15/02/2019 S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 15/02/2 019