CHANDRAKANT KANTILAL SHAH, MUMBAI V. ITO 4(1)-1, MUMBAI

ITA 1522/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8925 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1993-1994
• Appeal Filed On: 25-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 1522/MUM/2010 (ASSESSMENT YEAR: 1993-94) SHRI CHANDRAKANT KANTILAL SHAH INCOME TAX OFFICER - 4(1)-1 FLAT NO. 1, GROUND FLOOR MUMBAI REKHA CO-OP. HOUSING SOCIETY VS. 46, RIDGE ROAD, WALKESHWAR MUMBAI 400006 PAN - AAEFD 5115 D APPELLANT RESPONDENT APPELLANT BY: SHRI RAJEEV KUMAR RESPONDENT BY: SHRI S.K. SINGH O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- XIII, MUMBAI DATED 08.12.2009 DISMISSING THE APPEAL WHICH WAS FILED WITH LITTLE MORE THAN TWO MONTHS DELAY. THE CIT(A) WAS OF THE O PINION THAT THERE IS NO SPECIFIC OR BONAFIDE REASON FOR CONDONING THE DELAY . 2. ASSESSEE HAS RAISED FIVE GROUNDS, GROUND NO. 1 BEIN G ON CONDONATION OF DELAY AND GROUND NOS. 2 TO 5 PERTAIN TO THE MERI TS OF THE PENALTY LEVIED UNDER SECTION 271(1)(C). 3. THE LEARNED COUNSEL AT THE OUTSET SUBMITTED THAT TH E CIT(A) WAS NOT CORRECT IN REJECTING THE CONDONATION APPLICATION AN D REFERRED TO THE AFFIDAVIT FILED IN THIS REGARD BEFORE THE CIT(A) TO EXPLAIN T HAT THE ASSESSEE HAS GONE TO GUJARAT IN THE MONTH OF DECEMBER 2006 AND COULD NOT COME BACK TILL 28 TH JANUARY 2007 DUE TO ILLNESS AND SUBSEQUENTLY IN THE QUANTUM APPEAL WAS PENDING WITH THE ITAT AND AN MA WAS FILED ON THE QU ANTUM APPEAL. ASSESSEE COULD NOT FILE APPEAL ON THE PENALTY HOPIN G THAT THE REQUEST FOR DELETION OF ADDITION WOULD BE CONSIDERED FAVOURABLY . IT WAS SUBMITTED THAT THE APPEAL BEFORE THE CIT(A) COULD HAVE BEEN FILED ON 18.01.2007 AND SINCE THE ASSESSEE WAS SICK AND CAME BACK AFTER THE DUE D ATE HE COULD NOT ITA NO. 1522/MUM/2010 SHRI CHANDRAKANT KANTILAL SHAH 2 IMMEDIATELY ATTEND AND THERE WAS DELAY OF ABOUT TWO MONTHS, WHICH SHOULD HAVE BEEN CONDONED. HE RELIED ON THE ORDERS OF HON' BLE SUPREME COURT IN THE CASE OF IMPROVEMENT TRUST VS. UJAGAR SINGH TO S UBMIT THAT THE APPEAL SHOULD BE CONSIDERED ON MERITS AND SHOULD NOT BE DI SMISSED ON TECHNICALITIES. WITH REFERENCE TO THE MERITS TO THE PENALTY UNDER SECTION 271(1)(C) HE RELIED ON THE HON'BLE SUPREME COURT OR DER IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS LTD 322 ITR 158 THAT ALL TH E CLAIMS MADE ARE GENUINE AND DOES NOT WARRANT ANY PENALTY. HIS MAIN PRAYER IS THAT THE MATTER IS TO BE RESTORED TO THE FILE OF THE CIT(A) TO CONSIDER THE APPEAL ON MERITS. 4. THE LEARNED D.R. OBJECTED TO THE CONDONATION AND RE LIED ON THE ORDERS OF THE CIT(A). 5. WE HAVE CONSIDERED THE ISSUE. THE HON'BLE SUPREME C OURT IN THE CASE OF IMPROVEMENT TRUST VS. UJAGAR SINGH (SC) CA NO 23 95/2008 DT. 09-06-10 WHILE CONDONING THE DELAY IN FILING THE SLP HELD US UNDER: - (I) WHILE CONSIDERING AN APPLICATION FOR CONDONATI ON OF DELAY NO STRAIT-JACKET FORMULA IS PRESCRIBED TO COME TO THE CONCLUSION IF SUFFICIENT AND GOOD GROUNDS HAVE BEEN MADE OUT OR NOT. EACH CA SE HAS TO BE WEIGHED FROM ITS FACTS AND THE CIRCUMSTANCES IN WHI CH THE PARTY ACTS AND BEHAVES.; (II) JUSTICE CAN BE DONE ONLY WHEN THE MATTER IS FO UGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPOSE IT OF ON SUCH TECHNICALITIES AND THAT TOO AT THE THRESHOLD; (III) UNLESS MALAFIDES ARE WRIT LARGE ON THE CONDUCT OF T HE PARTY, GENERALLY AS A NORMAL RULE, DELAY SHOULD BE CONDONE D. IN THE LEGAL ARENA, AN ATTEMPT SHOULD ALWAYS BE MADE TO ALLOW TH E MATTER TO BE CONTESTED ON MERITS RATHER THAN TO THROW IT ON S UCH TECHNICALITIES. APART FROM THE ABOVE, THE APPELLANT WOULD NOT HAVE GAINED IN ANY MANNER WHATSOEVER, BY NOT FILLING THE APPEAL WITHIN THE PERIOD OF LIMITATION. IT IS ALSO WORTH NOTICING THAT DELAY WAS ALSO NOT THAT HUGE, WHICH COULD NOT HAVE BEEN CONDO NED, WITHOUT PUTTING THE RESPONDENTS TO HARM OR PREJUDICE. IT IS THE DUTY OF THE COURT TO SEE TO IT THAT JUSTICE SHOULD BE DONE BETW EEN THE PARTIES; 6. IN THE PRESENT CASE, AS SEEN FROM THE ORDER OF THE CIT(A), THERE IS NO DOUBT THAT THE ASSESSEE WAS NOT AVAILABLE IN MUMBAI ON THE DATE THE LIMITATION OF 30 DAYS EXPIRED. THE LIMITATION EXPIR ED ON 18.01.2007 AND AS PER THE AFFIDAVIT IN THE ORDER OF THE CIT(A) THE AS SESSEE CAME TO MUMBAI ON 20 TH JANUARY 2007. THEREFORE THE ASSESSEE COULD NOT FIL E THE APPEAL IN TIME. ITA NO. 1522/MUM/2010 SHRI CHANDRAKANT KANTILAL SHAH 3 WHETHER THERE WAS A DELAY OF 3 DAYS OR 30 DAYS ASSE SSEES BONA FIDE EXPLANATION WAS THAT HE WAS UNDER THE IMPRESSION TH AT THE ADDITION IN THE QUANTUM CAN BE NULLIFIED IF ASSESSEES MA WAS ENTER TAINED. THE MA WAS ADJOURNED TO 15.01.2010 ON APPLICATION FILED ON 05. 12.2007, SUBSEQUENTLY IT TRANSPIRED THAT THE MA WAS ALSO NOT ENTERTAINED AND THE ASSESSEE FILED AN APPEAL BEFORE THE HON'BLE BOMBAY HIGH COURT BY WAY OF WRIT PETITION. BE THAT AS IT MAY, WE ARE OF THE OPINION THAT UNDER TH E CIRCUMSTANCES THE DELAY OF LITTLE MORE THAN TWO MONTHS COULD BE CONDONED AS THE DELAY IN FILING THE APPEAL WAS NOT INTENTIONAL AND THAT THE DELAY SHOUL D HAVE BEEN CONDONED BY THE CIT(A) AS THE CONDUCT, BEHAVIOUR AND ATTITUD E OF THE ASSESSEE CANNOT BE STATED TO BE CALLOUS OR NEGLIGENT IN PURSING THE MATTER. ACCORDINGLY WE DIRECT THE CIT(A) TO CONDONE THE DELAY AND TO CONSI DER THE APPEAL ON MERIT. ACCORDINGLY, WE RESTORE THE APPEAL BACK TO THE FILE OF THE CIT(A) TO CONSIDER IT AFRESH ON MERITS AFTER DULY CONDONING THE DELAY. G ROUND NO. 1 ON THE ISSUE OF CONDONATION OF DELAY IS ALLOWED AND ON OTHER GRO UNDS THE APPEAL IS RESTORED TO THE FILE OF THE CIT(A). 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY 2011. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 14 TH JANUARY 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VIII, MUMBAI 4. THE CIT IV, MUMBAI CITY 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.