RAJNIKANT V. PATEL, MUMBAI V. DCIT 24(2), MUMBAI

ITA 1365/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71344 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 26-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 18-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANURAG SRIVASTAVA
• Assessee Lawyers: ASHWIN S CHHAG
• Keywords: Recovery proceedings; Bonafide belief; Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 1365/M/13 ASSESSMENT YEAR: 2008 - 09 SHRI RAJNIKANT V. PATEL 501, ABHIJIT INDRA VADAN COMPLEX, DA TT MANDIR ROAD, MALAD (E) MUMBAI - 51 PAN: AA C PP5823E VS. DCIT - 24(2), ROOM NO.602, C - 13 BLDG, PRAT Y A KS H A K AR BHAVAN, BKC, BANDRA (E), MUMBAI - 51 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWI N S. CHHAG REVENUE BY : SHRI ANURAG SRIVASTAVA DATE OF HEARING : 30.09.13 DATE OF PRONOUNCEMENT : 30.09.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 10.0 9.12 RELEVANT TO ASSESSMENT YEAR 2008 - 09. 2. THERE IS A DELAY OF 84 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS MOVED A SEPARATE APPLICATION FOR CONDONATION OF DELAY WHEREIN IT HAS BEEN PLEADED THAT THE ASSESSEE WAS PURSUING AN ALTERNATE REMEDY UNDER SECTION 154 OF THE INCOME TAX ACT BEFORE THE LD. CIT(A). THE ASSESSEE HAS ALSO FILED THE COPY OF THE PETITION FILED BEFORE THE LD. CIT(A) UNDER SECTION 154 . THE LD. A.R. BEFORE US HAS SUBMITTED THAT THE LD. CIT(A) FAILED TO ADJUDICATE UPON THE APP LICATION OF THE ASSESSEE MOVED UNDER SECTION 154 OF THE ACT FOR A SUFFICIENT ITA NO .1365/M/13 SHRI RAJNIKANT V. PATEL 2 LONG TIME AND IN THE MEANTIME THE REVENUE AUTHORITIES INITIATED PROCEEDINGS FOR THE RECOVERY OF THE PENALTY AMOUNT IN DISPUTE, HENCE THE ASS ESSEE WAS LEFT WITH NO ALTERNATIVE OTHE R TH A N TO FILE THE PRESENT APPEAL BEFORE THIS TRIBUNAL. THE LD. A.R. HAS ALSO BROUGHT OUR ATTENTION TO THE FACT THAT THE GROUNDS OF APPEAL RAISED IN THE PRESENT APPEAL ARE ALMOST SIMILAR TO THE ISSUES WHICH HAVE BEEN RAISED BY THE ASSESSEE IN HIS APPLICAT ION MOVED BEFORE THE LD. CIT(A ) UNDER SECTION 154 OF THE ACT. FROM THE FACTS ON THE FILE , IT IS EVIDENT THAT THE ASSESSEE H AS BEEN PURSUING HIS REMEDY UNDER SECTION 154 OF THE ACT BEFORE THE LD. CIT(A) UNDER BONAFIDE BELIEF THAT HIS GRIEVANCE AGAINST T HE IMPUGNED ORDER WA S LIABLE TO BE READDRESSED BY THE CIT(A) IN HIS SAID APPLICATION. HENCE , IN OUR VIEW , THE ASSESSEE HAS GOT SUFFICIENT REASON FOR THE DELAY ON HIS PART IN FILING THE PRESENT APPEAL. WE ARE SATISFIED WITH THE EXPLANATION GIVEN BY THE AS SESSEE WHICH , IN OUR VIEW , FALLS IN THE DEFINITION OF SUFFICIENT CAUSE FROM WHICH THE ASSESSEE WAS PREVENTED FROM FILING THE PRESENT APPEAL IN TIME. HENCE THE DELAY , IF ANY , IN FILING THE PRESENT APPEAL IS HEREBY CONDONED. 3 . NOW COMING TO THE MERITS O F THE CASE, THE MAIN GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPEAL IS REGARDING NON ADJUDICATION OF ALL THE GROUNDS RAISED BY HIM BEFORE THE CIT(A) . IT IS EVIDENT THAT THE SIMILAR ISSUES HAVE BEEN RAISED BY THE ASSESSEE IN HIS APPLICATION UNDER SECTION 154 OF THE ACT BEFORE THE LD. CIT(A) . T HE SAID APPLICATION HAS NOT YET BEEN DECIDED BY THE LD. CIT(A). AS PER LAW , THE ASSESSEE AT THE SAME TIME CANNOT AVAIL BOTH THE REMEDIES OF CHALLENGING THE IMPUGNED ORDER RAISING THE SAME ISSUES BEFORE DIFFERENT AUT HORITIES. THE ASSESSEE CAN CHOOSE ONE OF THE REMEDIES AVAILABLE TO HIM WHICH HE MAY DEEM FIT TO BE APPROPRIATE . ITA NO .1365/M/13 SHRI RAJNIKANT V. PATEL 3 AT THIS STAGE, THE LD. A.R. HAS POINTED OUT THAT THE FAILURE OF THE LD. CIT(A) TO ADJUDICATE ON THE APPLICATION MOVED UNDER SECTION 154 OF TH E ACT WITHIN THE STIPULATED PERIOD OF SIX MONTHS , AS PROVIDED UNDER SECTION 154 OF THE ACT , GIVES HIM ANOTHER CAUSE OF ACTION TO FILE AN APPEAL BEFORE THIS TRIBUNAL. HE HAS ALSO FILED AN ADDITIONAL GROUND OF APPEAL TO THIS EFFECT TODAY , VIDE WHICH HE HAS AGITATED THE FAILURE OF THE LD. CIT(A) TO ADJUDICATE ON THE APPLICATION UNDER SECTION 154 OF THE ACT WITH THE STIPULATED TIME OF SIX MONTHS. 4 . SINCE THE ASSESSEE HAS RAISED A LEGAL GROUND REGARDING THE NON ADJUDICATION OF HIS APPLICATION BY THE LD. CIT (A) , DESPITE REPEATED REQUESTS BY THE ASSESSEE, WITHIN THE STATUTORY PERIOD OF SIX MONTHS AND FURTHER THAT THE ASSESSEE IS FACING HARDSHIP DUE TO INITIATION OF RECOVERY PROCEEDINGS AGAINST HIM , S O WE ALLOW THE ADDITIONAL GROUND RAISED BY THE ASSESSEE TO BE TAKEN ON RECORD. 5 . AS OBSERVED ABOVE, SINCE THE SIMILAR ISSUES ARE ALREADY PENDING ADJUDICATION BEFORE THE LD. CIT(A) RAISED IN THE PETITION UNDER SECTION 154 OF THE ACT, HENCE IT WILL NOT BE PROPER FOR US TO GIVE ANY FINDING ON THE MERITS OF THESE IS SUES AT THIS STAGE . HOWEVER, ADDITIONAL GROUND RAISED BY THE ASSESSEE IN THE APPEAL IS HEREBY ALLOWED AND THIS APPEAL IS DISPOSED OF F WITH A DIRECTION TO THE LD. CIT(A) TO ADJUDICAT E THE APPLICATION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT , W ITH IN 6 0 DAYS OF THE RECEIPT OF COPY OF THIS ORDER. NEEDLESS TO SAY THAT THE LD. CIT(A) WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE AND THEREAFTER HE WILL DECIDE THE APPLICATION OF THE ASSESSEE BY WAY OF A SPEAKING ORDER AND WITH SEPARAT E FINDINGS ON EACH OF THE ISSUES RAISED BY THE ASSESSEE IN HIS APPLICATION MOVED UNDER SECTION 154 OF THE ACT. ITA NO .1365/M/13 SHRI RAJNIKANT V. PATEL 4 6 . T HE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AS PER OUR OBSERVATIONS MADE ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09. 2013. SD/ - SD/ - ( D. KARUNAKARA RAO ) ( SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.09. 2013. * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.