Deva International, Kolkata V. A.C.I.T Cir - 29,kolkata, Kolkata

ITA 1464/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5055 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT SUBHRA BISWAS
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

1 ITA NO.1464/KOL/2013-DEVA INTERNATIONAL-A.Y.2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] ITA NO.1464/KOL/2013 ASSESSMENT YEAR : 2009-10 DEVA INTERNATIONAL , -VERSUS- A.C.I.T.-CIRCLE-29, KOLKATA KOLKATA (PAN:AACFD7497A) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: NONE FOR THE RESPONDENT: SHRI RAJAT SUBHRA BISWAS, CIT(D R) DATE OF HEARING : 07.03.2016. DATE OF PRONOUNCEMENT : 06.04.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23 4 2013 OF CIT(A) XVI, KOLKATA, RELATING TO AY 2009-10. 2. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN TH E BUSINESS OF EXPORT OF LEATHER. FOR AY 2009-10, THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 22,21,020/-. AN ORDER OF ASSESSMENT DATED 30 TH DECEMBER, 2011 WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143 (3) OF THE INCO ME TAX ACT, 1961, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 36, 25, 646. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE P REFERRED AN APPEAL BEFORE THE C. I. T. (A). THERE WAS A DELAY OF ABOUT 32 DAYS IN FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE ASSESSEE EXPLAINED THE DEL AY IN FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AS DUE TO THE FACT THAT T HE PERSON WHO WAS LOOKING AFTER THE ACCOUNTS AND TAXATION MATTERS OF THE ASSESSEE SUDDE NLY LEFT THE SERVICES WITHOUT ANY INTIMATION. THE CIT(A) WAS OF THE VIEW THAT THE ASS ESSEE DID NOT MENTION THEN THE 2 ITA NO.1464/KOL/2013-DEVA INTERNATIONAL-A.Y.2009-10 PERSON LEFT AND WHY THE ASSESSEE DID NOT MAKE ANY A LTERNATIVE ARRANGEMENT FOR FILING THE APPEAL. THE CIT(A) THUS REFUSED TO CONDONE THE DELAY IN FILING THE APPEAL. 4. AGGRIEVED BY ORDER OF THE CIT(A) THE ASSESSEE HA S PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. NOTICE OF HEARING WAS SENT TO THE PARTY. THE SAM E HAS NOT BEEN SERVED ON THE ASSESSEE. NONE APPEARED ON BEHALF OF THE ASSESSEE. 6. WE HAVE CONSIDERED THE ORDER OF THE CIT(A) AND ARE OF THE VIEW THAT THE SAME IS UNSUSTAINABLE. THE LAW IS WELL SETTLED THAT IN M ATTERS OF CONDONATION OF DELAY A LIBERAL VIEW HAS TO BE TAKEN. MORE SO IN TAXATION MATTERS WHERE THE ASSESSEE GAINS NOTHING BY DELAYING FILING OF AN APPEAL. IN THE DE CISION OF THE HONBLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI & ORS. ( 1987) 167 ITR 471 THE HONBLE SUPREME COURT HAS EXPLAINED THE PRINCIPLES THAT NEED TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR CONDONATION OF DELAY. THE HONBLE APEX COURT HAS EMPHASIZED THAT SUBSTANTIAL JUSTICE SHOULD PREV AIL OVER TECHNICAL CONSIDERATIONS. THE COURT HAS ALSO EXPLAINED THAT A LITIGANT DOES N OT STAND TO BENEFIT BY LODGING THE APPEAL LATE. THE COURT HAS ALSO EXPLAINED THAT EVE RY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE TA KEN. THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. S IMILAR IS THE RATIO LAID DOWN IN THE FOLLOWING DECISIONS CONCORD OF INDIA INSURANCE CO. LTD. V. SMT. NIRMALA DEVI AND ORS. 118 ITR 507(SC) RADHA KRISHNA RAI V. ALLAHABAD BANK & ORS. (2009) 9 SCC 733 AND COMMISSIONER OF INCOME-TAX V. WEST BENGAL INFRASTRU CTURE DEVELOPMENT FINANCE CORPORATION LTD. (2011) 334 ITR 269 (SC) . KEEPING IN MIND THE DECISIONS REFERRED TO ABOVE, WE ARE OF THE VIEW THAT THE DELA Y IN FILING THE APPEAL BEFORE THE CIT(A) OUGHT TO HAVE BEEN CONDONED BY THE CIT(A). WE CONDONE THE DELAY IN FILING APPEAL BEFORE CIT(A). SINCE THE CIT(A) HAS NOT DEC IDED THE APPEAL OF THE ASSESSEE ON MERITS, WE DIRECT THE CIT(A) TO DECIDE THE APPEA L OF THE ASSESSEE ON MERITS AFTER 3 ITA NO.1464/KOL/2013-DEVA INTERNATIONAL-A.Y.2009-10 AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD. APPE AL OF THE ASSESSEE IS TREATED IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. O RDER PRONOUNCED IN THE COURT ON 06.04.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6.4.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.DEVA INTERNATIONAL, C/O ARSK & ASSOCIATES, C.A., 22, R.N.MUKHERJEE ROAD, 3 RD FLOOR,KOLKATA-700001. 2. A.C.I.T., CIRCLE-29, KOLKATA. 3. CIT(A)-XVI, KOLKATA 4. CIT-X, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES