Mohd. Arif Shafeeq Ahmed Patel, Raigad V. Assistant Commissioner of Income-tax,

ITA 1357/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1007 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 27-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Condonation of delay
• Section: 133A; 148; 139

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE ! ' , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM ITA NO.1357/PN/2014 ASSESSMENT YEAR : 2008-09 MR. MOHD. ARIF SHAFEEQ AHMED PATEL, 92, PATEL MOHALLA, PANVEL, RAIGAD 410 206. PAN: ABYPP0492L .. APPELLANT VS. THE ASSTT. COMMISSIONER OF INCOME TAX, PANVEL CIRCLE, PANVEL. ... RESPONDENT / APPELLANT BY : SHRI PRAKASH PANDIT / DEPARTMENT BY : SHRI P. L. KUREEL / DATE OF HEARING : 31.08.2016 / DATE OF PRONOUNCEMENT: 31.08.2016 % / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, THANE DATED 17.02.2014 FOR THE ASSESSMENT YEAR 2008-09. 2. THE APPEAL HAS BEEN FILED WITH THE DELAY OF 17 D AYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY SUPPORTED B Y AN AFFIDAVIT. AFTER PERUSAL OF THE SAME, WE ARE SATISFIED THAT THE DELAY IN FILING OF THE APPEAL IS NOT WILLFUL OR DELIBERATE. IT IS A TRITE LAW THAT EXPLANATION FUR NISHED FOR CONDONATION OF DELAY SHOULD NOT BE REJECTED BY TAKING HYPER-TECHNICAL AN D PEDANTIC VIEW. ACCEPTANCE OF 2 ITA NO.1357/PN/2014 EXPLANATION FURNISHED SHOULD BE THE RULE AND REFUSA L AN EXCEPTION. ACCORDINGLY, THE DELAY OF 17 DAYS IN FILING OF THE APPEAL IS CONDONE D AND THE APPEAL OF THE ASSESSEE IS ADMITTED FOR HEARING. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RE CORDS ARE: A SURVEY ACTION UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT AT THE BUSINESS PREMISES OF T HE ASSESSEE ON 03.03.2008. DURING THE COURSE OF SURVEY, CERTAIN INCRIMINATING PAPERS WERE FOUND. THE STATEMENT OF THE ASSESSEE WAS RECORDED. THE ASSESS EE DECLARED ADDITIONAL INCOME OF RS.39,75,000/- FOR THE ASSESSMENT YEAR 20 08-09 IN ADDITION TO HIS REGULAR BUSINESS INCOME. ALTHOUGH, THE ASSESSEE HAD A TAXA BLE INCOME DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2008-09, BUT THE ASSESS EE DID NOT FILE RETURN OF INCOME UNDER THE PROVISIONS OF SECTION 139 OF THE ACT. TH E ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 TO THE ASSESSEE ON 23.07.2010. I N RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 31.03.2011 DECLA RING TOTAL INCOME OF RS.73,53,920/-. DURING THE ASSESSMENT PROCEEDING, THE ASSESSING OFFICER MADE CERTAIN ADDITION/ DISALLOWANCES IN THE INCOME RETUR NED BY THE ASSESSEE AND ASSESSED THE TOTAL INCOME AT RS.1,09,72,919/-. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE CIT(A). 4. THE APPEAL FILED BY THE ASSESSEE BEFORE THE FIRS T APPELLATE AUTHORITY WAS BARRED BY LIMITATION. THE ASSESSEE FILED APPLICATI ON FOR CONDONATION OF DELAY. HOWEVER, THE CIT(A) WITHOUT GOING INTO THE MERITS O F THE CASE AND WITHOUT CONSIDERING THE REASONS FOR DELAY IN FILING OF THE APPEAL, DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR NOT FURNISHING THE CHALLAN EVIDENCING THE PAYM ENT OF RS.10 LAKHS IN DISCHARGE OF TAX LIABILITY AND FOR NOT DEP OSITING OUTSTANDING TAX DEMAND OF RS.11,23,724/-. 3 ITA NO.1357/PN/2014 AGAINST THE ORDER OF CIT(A), THE ASSESSEE HAS PREFE RRED SECOND APPEAL BEFORE THE TRIBUNAL. 5. SHRI PRAKASH PANDIT APPEARING ON BEHALF OF THE A SSESSEE SUBMITTED THAT THE ASSESSEE HAD PAID THE ENTIRE OUTSTANDING TAX DEMAND . THE AMOUNT OF RS.10 LAKHS WAS PAID MUCH BEFORE THE FILING OF APPEAL BEFORE TH E CIT(A). HOWEVER, THE ASSESSEE COULD NOT FURNISH THE ACKNOWLEDGEMENT OF T HE AMOUNT DEPOSITED AS THE SAME WAS NOT TRACEABLE AT THAT TIME. THE LD. AR RE FERRED TO PAGES 18 TO 22 OF THE PAPER BOOK TO SHOW THAT THE ENTIRE TAX LIABILITY HA S BEEN PAID. THE LD. AR REFERRED TO PAGE 22 TO SHOW THAT RS.10 LAKHS WAS PAID ON 23. 01.2008 AS SELF ASSESSMENT TAX MUCH PRIOR TO THE FILING OF THE APPEAL BEFORE T HE CIT(A) ON 03.05.2012. 6. ON THE OTHER HAND, SHRI P. L. KUREEL REPRESENTIN G THE DEPARTMENT CONTENDED THAT THE ASSESSEE HAD FAILED TO PRODUCE DOCUMENTARY EVIDENCE IN SUPPORT OF THE PAYMENT OF OUTSTANDING TAX LIABILITY, THE CIT(A) HA S RIGHTLY REJECTED THE APPEAL OF THE ASSESSEE. THE ASSESSEE WAS DUTY BOUND TO DISCHARGE ENTIRE TAX LIABILITY BEFORE ADMISSION OF APPEAL BY THE CIT(A). 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRES ENTATIVES OF THE RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DOCUMENTS ON WHICH THE LD. AR FOR TH E ASSESSEE HAS PLACED RELIANCE. A PERUSAL OF THE IMPUGNED ORDER SHOWS TH AT THE FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GRO UND THAT THE ASSESSEE HAS NOT DISCHARGED TAX LIABILITY BEFORE FILING OF APPEAL. A PERUSAL OF INCOME-TAX COMPUTATION SHEET AT PAGE 28 OF THE PAPER BOOK SHOWS THAT THE T OTAL AMOUNT OUTSTANDING AFTER THE ASSESSMENT WAS RS.39,48,358/-. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ENTIRE TAX LIABILITY HAS BEEN PAID. THE LD. AR HAS DRAWN OUR ATTENTION TO THE CHALLANS AT PAGES 18 TO 22 OF THE PAPER BOOK. IN V IEW OF THE STATEMENT MADE BY 4 ITA NO.1357/PN/2014 THE LD. AR AND THE CHALLANS FILED IN THE PAPER BOOK , WITHOUT COMMENTING ON THE MERITS OF CASE, WE DEEM IT APPROPRIATE TO REMIT THE APPEAL BACK TO THE FILE OF CIT(A) FOR DECIDING THE SAME ON MERITS. THE IMPUGNED ORDE R IS SET-ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER THE HEARIN G ON WEDNESDAY, THE 31 ST DAY OF AUGUST, 2016. SD/- SD/- ( R.K. PANDA ) ( VIKAS AWASTHY ) / ACCOUNTANT MEMBER # / JUDICIAL MEMBER PUNE ; DATED : 31 ST AUGUST, 2016. %&'#()!*!+( / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, THANE; 4) THE CIT-II, THANE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %, / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE