Sejal Gopalbhai Shah, Ahmedabad V. ACIT, Circle-7, Ahmedabad

ITA 1487/AHD/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9677 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 05-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Period of limitation; Corroborative evidences; Time period of passing order

Judgement Text

ITA NOS. 1487 TO 1490/AHD/2018 SEJAL GOPALBHAI SHAH VS. ACIT ASSESSMENT YEAR: 2005-06 TO 2008-09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] ITA NOS. 1487 TO 1490/AHD/2018 ASSESSMENT YEAR: 2005-06 TO 2008-09 SEJAL GOPALBHAI SHAH ..................APPE LLANT 11, CHARANKRUPA SOCIETY, NEAR SHIVRANJANI CROSS ROADS, SATELLITE, AHMEDABAD - 380015 [PAN : AGDPS 3217 Q] VS. ASSTT. COMMISSIONER OF INCOME-TAX ...........................RESPONDENT CIRCLE-7, AHMEDABAD APPEARANCES BY: SAKAR SHARMA, FOR THE APPELLANT SK DEV, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 27.03.2019 DATE OF PRONOUNCING THE ORDER : 24.06.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. THESE FOUR APPEALS PERTAIN TO THE SAME ASSESSEE, INVOLVE A COMMON ISSUE AND WERE HEARD TOGETHER. AS A MATTER OF CONVENIENCE , THEREFORE, ALL THESE APPEALS ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED O RDER. 2. GROUND NOS. 1 TO 4, WHICH ARE COMMON IN ALL THES E APPEALS, ARE AS FOLLOWS:- 1. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN NO T CONDONING THE DELAY IN FILING OF APPEAL AND IN APPRECIATING THAT FOR THE S AME REASONS AND FACTS OTHER CIT (A) FOR EARLIER ASSESSMENT YEARS CONDONED THE D ELAY AND ADJUDICATED THE APPEALS. 2. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN NOT SERVING THE APPELLATE ORDER IN WITHIN A REASONABLE TIME AFTER ADJUDICATING THE APPEAL ON 28/07/2015. 3. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN NO T APPRECIATING THE FACT THAT THE PENALTY ORDER PASSED BY APPELLANT WAS BARRED BY LIMITATION. ITA NOS. 1487 TO 1490/AHD/2018 SEJAL GOPALBHAI SHAH VS. ACIT ASSESSMENT YEAR: 2005-06 TO 2008-09 PAGE 2 OF 3 4. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN NO T ADJUDICATING THE APPEAL ON MERIT INSPITE OF CALLING EXHAUSTIVE SUBMISSIONS ON MERITS OF THE CASE IN THE COURSE OF APPELLATE PROCEEDINGS. 3. TO ADJUDICATE ON THESE GRIEVANCES, ONLY A FEW MA TERIAL FACTS NEED TO BE TAKEN NOTE OF. LEARNED CIT(A) VIDE HIS ORDER DATED 28 TH JULY 2015, WHICH IS IMPUGNED IN APPEAL BEFORE US, HAS DISMISSED THESE FOUR APPEALS, ALONGWITH ONE MORE APPEAL FOR ASSESSMENT YEAR 2004-05, AS TIME BARRED BY OBSERVIN G AS FOLLOWS:- 5. AS IT CAN BE SEEN THAT THE ASSESSEES APPEAL IS LATE BY 109 DAYS FOR WHICH OTHER THAN A LETTER DATED 04.09.2014, NO SUPPORTING EVIDENCE HAS BEEN ADDUCED. IT HAS BEEN HELD BY NUMBER OF COURTS THAT SOME PLAUSIBLE EVIDENCE IS NECESSARY FOR APPEAL TO GET ADMITTED. SOME COUR TS HAVE EVEN GONE TO THE EXTENT INDICATING THAT DAY TO DAY ACCOUNT OF DELAY MUST BE FURNISHED BY THE ASSESSEE. IN OTHER WORDS THE ASSESSEE HAS TO SHOW REASON FOR DELAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EA CH DAY. IT MAY FURTHER BE POINTED OUT THAT CONDONATION IS NOT A MATTER OF RIG HT. A. RANKAK & ORS VS. REWA COALFIELD LIMITED, AIR 19 62 361 (SC), B. MADHU DADA VS. ACIT (CHENNAI) 317 ITR 458. CONSIDERING THE ABOVE, I AM OF THE VIEW THAT THE AP PEALS FILED BY THE ASSESSEE DESERVED TO BE REJECTED AB INITIO. 4. THE ASSESSEE IS AGGRIEVED AND IS IN FURTHER APPE AL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 6. WE FIND THAT, AS NOTED EARLIER, THE CIT(A) HAD D ISMISSED FIVE APPEALS TOGETHER AS TIME BARRED. ONE OF THESE APPEALS, I.E. FOR ASSE SSMENT YEAR 2004-05, WAS CHALLENGED BEFORE THIS TRIBUNAL AND IT CAME UP FOR ADJUDICATION BEFORE A CO-ORDINATE BENCH. THE CO-ORDINATE BENCH, WHILE DISPOSING OF T HE SAID APPEAL, INTER ALIA, OBSERVED AS FOLLOWS:- 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. A PERUSAL OF THE ORDER OF THE CIT(A) SHOWS THAT THE FIRST APPELLATE AUTHOR ITY HAS REFUSED THE CONDONE THE DELAY ON THE GROUND NO SUPPORTING EVIDENCE HAS BEEN ADDUCED. WHILE WE AGREE THAT CONDONATION IS NOT A MATTER OF RIGHT, WE ALSO BEAR IN MIND THAT NO SERIOUS PREJUDICE HAS BEEN CAUSED TO THE REVENUE BY SUCH SMALL DELAY. WE FIND THAT THE ASSESSEE HAS DEMONSTRATED BONAFIDE RE ASONS FOR DELAY ON ACCOUNT OF MEDICAL EXIGENCIES WHICH GROUND HAS BEEN ACCEPTED BY THE CIT(A) IN EARLIER ASSESSMENT YEAR. THEREFORE, WE DO NOT SE E ANY CAUSE FOR TAKING A DIFFERENT AND INCONSISTENT STAND IN THE MATTER. IN OUR VIEW, THE CIT(A) OUGHT HAVE EXERCISED ITS JUDICIAL DISCRETION IN FAVOUR OF THE ASSESSEE IN THE CONTEXT OF THE FACTS NARRATED ABOVE. THEREFORE, WE SET ASID E THE ACTION OF THE CIT(A) AND DIRECT THE CIT(A) TO ADMIT THE APPEAL FOR EFFEC TIVE HEARING ON MERITS BY CONDONING THE DELAY. NEEDLESS TO SAY, ALL THE ISSUE S RAISED BEFORE THE TRIBUNAL ON MERITS ARE KEPT OPEN FOR ADJUDICATION B Y CIT(A). THE CIT(A) SHALL ITA NOS. 1487 TO 1490/AHD/2018 SEJAL GOPALBHAI SHAH VS. ACIT ASSESSMENT YEAR: 2005-06 TO 2008-09 PAGE 3 OF 3 DISPOSE OF THE APPEAL IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. WE HAVE ALSO NOTED THAT THE ORDER AND THE STAND OF THE CIT(A), WHICH WAS IMPUGNED BEFORE THE CO-ORDINATE BENCH, IS EXACTLY T HE SAME AS BEFORE US. WE, THEREFORE, SEE NO REASONS TO TAKE A VIEW OTHER THAN THE VIEW SO TAKEN BY THE CO- ORDINATE BENCH. LEARNED REPRESENTATIVES ALSO FAIRL Y AGREE THAT WHATEVER HAS BEEN DECIDED IN THIS APPEAL BY THE CO-ORDINATE BENCH ESS ENTIALLY APPLIES ON THE APPEALS BEFORE US AS WELL. IN VIEW OF THESE DISCUSSIONS AN D BEARING IN MIND ENTIRETY OF THE CASE, AS ALSO RESPECTFULLY FOLLOWING THE VIEWS SO T AKEN BY THE CO-ORDINATE BENCH (SUPRA), WE REMIT THE MATTER TO THE FILE OF THE LEA RNED CIT(A) FOR ADJUDICATION DE NOVO IN THE LIGHT OF OBSERVATIONS OF THE CO-ORDINATE BEN CH WHICH WILL APPLY MUTATIS MUTANDIS IN THESE CASES AS WELL. WITH THESE OBSERVATIONS, ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE . 8. IN THE RESULT, ALL FOUR APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 24 TH JUNE, 2019 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 24 TH DAY OF JUNE, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PSREPARED AS PER 2 PAGES DICTATION (PAGE ATTACHED) OF HONBLE VP .. ATTACHED.....24.05.2019..... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .... 24.05.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .... 24.05.2019...... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 24.05.2019... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ............ 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......