DHIRAJ J GURNANI, MUMBAI V. ITO 23(2)(2), MUMBAI

ITA 1493/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78917 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 1493/MUM/2013 ASSESSMENT YEAR: 2006-07 SHRI DHIRAJ J GURNANI 98/5 SAI NIWAS, AGRA ROAD, MULUND COLONY, MULLUND(W), MUMBAI- 400 080 VS. ITO 23(2)(2) MUMBAI (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :-AGHPG 4219 N APPELLANT BY : SHRI BHADRESH DOSHI RESPONDENT BY : SHRI P K SINGH DATE OF HEARING : 21.05.2014 DATE OF PRONOUNCEMENT : 30.05.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A) -11, MUMBAI DATED 31.10.2012 FOR THE ASSE SSMENT YEAR 2006-07. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 31 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS FILED A PETITION OF CONDONATION OF DELAY IN THE SHAPE OF AN AFFIDAVIT. THE ASSESSEE HAS EXPLAINED THE REASONS FOR NOT FILI NG THE APPEAL WITHIN THE TIME PERIOD OF LIMITATION AS HE MISUNDERSTOOD THE ADVICE OF THE CONSULTANT WITH REGARD TO THE TIME LIMIT FOR FILING THE APPEAL BEFORE THE TRI BUNAL. THUS, THE DELAY HAS BEEN OCCURRED DUE TO THE REASON WHICH IS A BONA FIDE ONE AND NOT INTENTIONAL OR DELIBERATE. AFTER CONSIDERING THE RELEVANT RECORDS AND AVERMENT IN THE AFFIDAVIT, WE FIND THAT THE ASSESSEE HAS EXPLAINED THE SUFFICIENT REASONS FOR NOT FILING THE APPEAL WITHIN TIME. IT IS SETTLED LAW THAT WHILE CONDONING THE DELAY, THE COURT SHOULD TAKE A LENIENT VIEW. IT IS ALWAYS A QUESTION WHETHER THE E XPLANATION AND REASONS FOR DELAY IS BONA FIDE OR MERELY A DEVICE TO COVER AN ULTERIOR P URPOSE SUCH AS LACHES ON THE PART ITA NO. 1493/MUM/2013 SHRI DHIRAJ J GURNANI ASSESSMENT YEAR: 2006-07 2 OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDER HAND WAY. WHEN IT IS FOUND ON RECORD THAT THE PARTY HAS NOT ACTED IN MAL A FIDE BUT THE REASONS EXPLAINED ARE FACTUALLY CORRECT, THEN THE COURT SHOULD BE LIB ERAL IN CONSTRUING THE SUFFICIENT CAUSE AND SHOULD LEAN IN FAVOUR OF SUCH PARTY. WHEN EVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE OPPOSED TO EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED. IN VIEW OF THIS LEGAL AND FACTUAL POS ITION, WE CONDONE THE DELAY OF 31 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL AND T AKE UP THE MATTER FOR ADJUDICATION. 3. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE AC TION OF THE LD.CIT(A) IN CONFIRMING VARIOUS DISALLOWANCES/ADDITIONS MADE BY THE AO. IT IS PERTINENT TO MENTION THAT THE LD.CIT(A), IN HIS ORDER, HAS MENTI ONED THAT THE CHARTED ACCOUNT FOR THE ASSESSEE HAS ATTENDED THE HEARING AND ARGUE D THE APPEAL BEFORE THE LD.CIT(A). HOWEVER, THE LD.CIT(A) HAS FURTHER MENTI ONED THAT THE ASSESSEE HAS MADE NO REPRESENTATION. THE LD.CIT(A), AFTER OBSER VING THAT THE ASSESSEE HAS NOT FILED ANY SUBMISSION ALONG WITH EVIDENCES TO SUBSTA NTIATE THE GROUNDS OF APPEAL, DECIDED THE APPEAL WHICH HAS RESULTED IN CONFIRMING VARIOUS DISALLOWANCES/ADDITIONS MADE BY THE AO. IN THIS CONNECTION, THE LD.AR OF TH E ASSESSEE HAS REQUESTED ONE MORE OPPORTUNITY OF BEING HEARD BEFORE THE AO TO SU BSTANTIATE THE CLAIM OF THE ASSESSEE. THOUGH THE LD.AR OF THE ASSESSEE HAS NOT PROVIDED ANY CONVINCING REASON FOR THE ASSESSEES FAILURE TO PROVIDE THE SUBMISSIO N ALONG WITH EVIDENCES TO SUBSTANTIATE THE GROUNDS OF APPEAL BEFORE THE LD.CI T(A), HAVING DUE REGARD TO THE PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE OPINION THAT IT WILL BE JUST AND PROPER TO SET ASIDE THE ENTIRE APPEAL BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE PLACING ALL THE MATERIALS TO SUBSTANTIATE HIS CLAIM. CONSIDERING TH E FACT THAT THE ASSESSEE HAS NOT EXPLAINED CONVINCING REASON FOR NON SUBMISSION ALON G WITH EVIDENCES TO SUBSTANTIATE THE GROUNDS OF APPEAL, AS INDICATED BY THE BENCH DU RING THE COURSE OF THE PROCEEDINGS, WE IMPOSE A COST OF RS.1,000/- ON THE ASSESSEE TO BE PAID TO THE REVENUE. AFTER PRODUCING THE RECEIPT FOR THE PAYMEN T OF THE SAID COST, THE LD.CIT(A) SHALL RE-ADJUDICATE THE APPEAL AFRESH IN THE AFOREM ENTIONED TERMS. WE DIRECT AND ORDER ACCORDINGLY. ITA NO. 1493/MUM/2013 SHRI DHIRAJ J GURNANI ASSESSMENT YEAR: 2006-07 3 4. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF MAY, 2014. /SD/ /SD/ (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.05.2014. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR D BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.