P. Vijaya Kumar, Bangalore V. ITO, Bangalore

ITA 1466/BANG/2010

• Counselvise Citation: 146621114 RSA 2010
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 20-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT
• Assessee Lawyers: V CHANDRASHEKAR
• Keywords: Unexplained expenditure; Opportunity of being heard; Reasonable cause; Condonation of delay; Revised return
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NOS. 1466 & 1468/BANG/2010 ASSESSMENT YEARS : 2004-05 & 2005-06 MR. P. VIJAYA KUMAR, # 77B, 6 TH MAIN, BETWEEN 17 TH & 18 TH CROSS, MALLESWARAM, BANGALORE 560 003. PAN : ACJPV 1514B VS. THE INCOME TAX OFFICER, WARD 9(4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI V. CHANDRASHEKAR, ADVOCATE RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JT.CIT(DR) DATE OF HEARING : 31.10.2011 DATE OF PRONOUNCEMENT : 31.10.2011 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE SEPARATE ORDERS EACH DATED 28.10.2010 OF THE CIT(AP PEALS)-V, BANGALORE. 2. BOTH THESE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.1466 & 1468/BANG/2010 PAGE 2 OF 6 3. FIRST, WE WILL DEAL WITH ITA NO.1466/B/2010. IN THIS APPEAL, THE FOLLOWING GROUNDS HAVE BEEN RAISED: 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS TH EY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, W EIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) IS NOT JUSTIFIED IN NOT CONDONIN G THE DELAY IN FILING THE APPEAL BY THE APPELLANT UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AUTHORI TIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.33,50,00 0/- AS THE UNEXPLAINED MONEY U/S. 69A OF THE I.T. ACT, 1961 IN THE HANDS OF THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMS TANCES OF THE APPELLANTS CASE. 4. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSIN G A SUM OF RS.4,07,500/- AS THE UNEXPLAINED EXPENDITURE U/S. 6 9C OF THE I.T. ACT, 1961, IN THE HANDS OF THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 5. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN DISALLOW ING DONATION OF RS.10,000/- CLAIMED BY THE APPELLANT, WHICH QUAL IFY FOR EXEMPTION UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HONBLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S. 234-B AND 234-C OF THE ACT, WHICH UND ER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS C ASE DESERVES TO BE CANCELLED. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRA YS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF T HE COSTS. 4. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L IS AGAINST THE ACTION OF THE LD. CIT(APPEALS) IN DISMISSING THE AP PEAL BY REJECTING THE CONDONATION PETITION. ITA NO.1466 & 1468/BANG/2010 PAGE 3 OF 6 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 29.10.2004 DECLARING AN INCOME OF RS.5,18 ,250. THEREAFTER, THE ASSESSEE FILED A REVISED RETURN ON 22.11.2004 ENHAN CING THE INCOME TO RS.5,94,700. THE SAID RETURN WAS PROCESSED U/S. 14 3(1) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT] ON 19.8.2005. 6. IN THIS CASE, A SURVEY WAS CONDUCTED U/S. 133A O F THE ACT ON 7.2.2005 ON THE BUSINESS PREMISES OF THE ASSESSEE A ND CONSEQUENT TO THE SURVEY, THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.43,62,200. 7. THE ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT( APPEALS), WHICH WAS DELAYED BY 1086 DAYS. THE ASSESSEE ALSO FILED A PETITION FOR CONDONATION OF DELAY STATING THAT THE DELAY WAS DUE TO MISPLACEMENT OF PAPERS BY HIS AUDITORS. THE LD. CIT(A) DISMISSED T HE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: 2. THE ASSESSEE FILED A PETITION FOR THE CONDONA TION FOR DELAY ON 15.01.2010 STATING THAT THE DELAY WAS DUE TO MIS PLACEMENT OF PAPERS BY HIS AUDITORS. EXCEPT THIS THE ASSESSEE D ID NOT GIVE ANY OTHER REASON FOR THIS INORDINATE DELAY. AS THE ASSE SSEE IS NOT PREVENTED BY ANY REASONABLE CAUSE TO FILE THE APPEA L ON TIME, THE CONDONATION PETITION IS REJECTED AND THE APPEAL IS DISMISSED. 8. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FURNISHED WRITTEN SUBMI SSION TO THE LD. CIT(A) STATING THEREIN THE REASONS FOR THE DELAY AND MADE A PRAYER TO CONDONE THE DELAY. IT WAS SUBMITTED THAT AFTER THE RECEIPT OF ASSESSMENT ORDER, THE SAME WAS PLACED IN THE HANDS OF AUTHORIZED REPRESEN TATIVES, WHO WERE AUTHORIZED TO PRESENT THE ASSESSEES INCOME-TAX PRO CEEDINGS IN RESPECT OF ITA NO.1466 & 1468/BANG/2010 PAGE 4 OF 6 SURVEY ASSESSMENT WITH INSTRUCTIONS TO SEEK ADVICE FROM THE AUDITOR ON THE COURSE OF ACTION TO BE TAKEN IN THIS REGARD AND FIL E NECESSARY APPEALS. IT WAS FURTHER STATED THAT THE ASSESSEE HAD SIGNED NEC ESSARY REQUISITE APPEAL PAPERS AND HANDED OVER BACK THE SAME TO HIS AUDITOR S TO FILE THE SAME BEFORE THE APPROPRIATE FORUM, AS SUCH THE ASSESSEE WAS UNDER THE AVOWED IMPRESSION AND BELIEF THAT THE APPEAL PAPERS HAVING BEEN SIGNED AND HANDED OVER TO AUDITORS AND WAS UNDER A BONAFIDE BE LIEF THAT THOSE APPEALS HAD BEEN LODGED BEFORE THE APPROPRIATE APPELLATE AU THORITIES BY HIS AUDITORS. IT WAS CONTENDED THAT THE ASSESSEE FURNI SHED THE AFORESAID EXPLANATION BEFORE THE LD. CIT(A), WHO DID NOT CONS IDER THOSE EXPLANATION AND DISMISSED THE APPEAL OF THE ASSESSEE. HE REQUE STED TO RESTORE THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE IN ACCORDANCE WITH THE LAW. 9. IN HIS RIVAL SUBMISSIONS, THE LD. DR, AT THE VER Y OUTSET, STATED THAT THERE WAS INORDINATE DELAY OF 1086 DAYS AND THE ASS ESSEE HAD NOT FURNISHED ANY EVIDENCE TO SUBSTANTIATE THAT THE DEL AY WAS NOT ON HIS PART. SHE THEREFORE SUBMITTED THAT THE LD. CIT(A) WAS FUL LY JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WHICH WAS BARRED BY LIMI TATION. 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THERE WAS DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) AN D THE APPEAL WAS DISMISSED BEING BARRED BY LIMITATION. IN THE PRESE NT CASE, IT IS NOTICED THAT THE LD. CIT(A) WITHOUT CONSIDERING THE SUBMISSIONS AND EXPLANATION OF THE ASSESSEE CAME TO THE CONCLUSION THAT THE ASSESSEE W AS NOT PREVENTED BY ANY REASONABLE CAUSE TO FILE THE APPEAL ON TIME. I N OUR OPINION, THE LD. ITA NO.1466 & 1468/BANG/2010 PAGE 5 OF 6 CIT(A) SHOULD HAVE DISCUSSED THE CONTENTION OF THE ASSESSEE AND THEREAFTER MADE OBSERVATION BY GIVING REASONS IN SU PPORT OF HIS VIEW, BUT IN THE PRESENT CASE THE LD. CIT(A) PASSED THE IMPUGNED ORDER IN A SLIPSHOD MANNER. HE HAD NOT DISCUSSED THE CIRCUMSTANCES WHI CH WERE EXPLAINED BY THE ASSESSEE FOR DELAY IN FILING THE APPEAL. THE L D. CIT(A) ALSO DID NOT REBUT THE MAIN CONTENTION OF THE ASSESSEE THAT THE DELAY WAS ON THE PART OF THE AUTHORISED REPRESENTATIVE OR THE AUDITOR BECAUSE TH E APPEAL PAPERS WERE HANDED OVER BY THE ASSESSEE IN TIME TO THEM. IN OU R OPINION, THE PRESENT CASE REQUIRES A FRESH ADJUDICATION AT THE LEVEL OF THE LD. CIT(A), BECAUSE HE HAD NOT CONSIDERED THE SUBMISSIONS AND EXPLANATION OF THE ASSESSEE IN THE RIGHT PERSPECTIVE. WE, THEREFORE, DEEM IT APPROPRI ATE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REMAND THE CASE BACK TO HIS FILE FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE LAW, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. NEEDLESS TO MENTION THAT THE LD. CIT(A) SHOULD PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 11. IN ITA NO.1468/BANG/2010, SIMILAR GROUNDS HAVE BEEN RAISED AS WERE IN ITA NO.1466/BANG/2010 AND THE FACTS ARE SIM ILAR, THE ONLY DIFFERENCE IS THAT THE DELAY IN FILING THE APPEAL B EFORE THE LD. CIT(A) WAS OF 862 DAYS IN A.Y. 2005-06, WHILE FOR THE A.Y. 2004-0 5 THE DELAY WAS OF 1086 DAYS. CONSIDERING THE SIMILARITY IN FACTS, WE DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) F OR A.Y. 2005-06 ALSO AND REMAND THE CASE BACK TO THE FILE OF LD. CIT(A) TO BE DECIDED AFRESH, AS HAS BEEN DIRECTED FOR THE A.Y. 2004-05 WHILE ADJUDI CATING THE APPEAL IN ITA NO.1466/BANG/2010. ITA NO.1466 & 1468/BANG/2010 PAGE 6 OF 6 12. IN THE RESULT, BOTH THE APPEALS BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2011. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 31 ST OCTOBER, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.