ASHOK KUMAR GUPTA, Jaipur V. ITO, BEHROR

ITA 156/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5292 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 28-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R PARIKH JCIT DHK
• Assessee Lawyers: MANISH AGARWALCA
• Keywords: Gift; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 156/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 SHRI ASHOK KUMAR GUPTA SANTOSH NURSING HOME KOTPUTLI, DISTT. JAIPUR CUKE VS. THE ITO WARD- BEHROR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABOPG 3740 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL,CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI G.R. PARIKH, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/05/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26 /05/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 17-04-2013 FOR THE ASSESSMENT YEAR 2005 -06 CHALLENGING IMPOSITION OF PENALTY OF RS. 54,862/- U/S 271(1)(C ) OF THE I.T. ACT, 1961. 2.1 THE APPEAL IS DELAYED BY 300 DAYS AND A CONDONA TION PETITION ALONG WITH AN AFFIDAVIT DEPOSING THAT IMPUGNED ORDE R OF THE LD. CIT(A) WAS HANDED OVER BY THE ASSESSEE TO THE OFFICE STAF F TO TAKE APPROPRIATE STEPS TO FILE AN APPEAL IN CONSULTATION WITH THE CO UNSEL. THE ORDER WAS ITA NO.156/JP/2013 SHRI ASHOK KUMAR GUPTA, VS. ITO, WARD- BEHROR . 2 MISPLACED WAS MISPLACED BY THE OFFICE STAFF AND THE APPEAL COULD NOT BE FILED IN TIME. LATER ON THE ORDER WAS DISCOVERED AN D THE APPEAL WAS IMMEDIATELY FILED. IT IS CONTENDED THAT THE AMOUNT INVOLVED IS SMALL AND NO GAINFUL PURPOSE WOULD HAVE BEEN SERVED BY THE AS SESSEE IN DELIBERATELY DELAYING THE APPEAL. IT IS PLEADED THAT THE DELAY IN FILING OF THE APPEAL IS CAUSED BY THE REASONS BEYOND THE CONTROL OF THE ASS ESSEE AND THE SAME SHOULD BE CONDONED. RELIANCE IS PLACED IN THE CASE OF VEDABAI ALIAS VAIJAYANATABI BABU RAO PATIL VS. SHANTA RAM BABU RA O PATIL AND OTHERS REPORTED IN 253 ITR 798 (SC) WHEREIN THE HON'BLE SUPREME COURT HELD AS UNDER:- LIMITATION CONDONATION OF DELAY SUFFICIENT CAUSE FOR NOT PREFERRING APPEAL OR MAKING APPLICATION WIT H PRESCRIBED PERIOD WHERE DELAY IS ONLY OF A FEW DAYS SUFF ICIENT CAUSE TO RECEIVE LIBERAL CONSTRUCTION APPROACH OF COURTS T O BE PRAGMATIC ADVANCING OF SUBSTANTIAL JUSTICE OF PRIME IMPORTANC E LIMITATION ACT. 1963, S 5. 2.2 THE LD. DR IS HEARD. 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I AM OF THE CONSIDERED VIEW TH AT IN THE GIVEN FACTS AND CIRCUMSTANCES, ASSESSEE WAS PREVENTED BY SUFFIC IENT CAUSE WHICH WAS BEYOND HIS CONTROL. THEREFORE, THE DELAY IS CONDONE D. 2.4 THE PENALTY IN QUESTION HAS BEEN IMPOSED BY THE AO QUA THE ADDITIONS MADE BY DISBELIEVING THAT GIFT GIVEN BY T HE FATHER OF THE ITA NO.156/JP/2013 SHRI ASHOK KUMAR GUPTA, VS. ITO, WARD- BEHROR . 3 ASSESSEE AND THE REPAYMENT OF LOAN TAKEN EARLIER BY FATHER. ACCORDING TO THE AO, THE ASSESSEE HAS FAILED TO DISCHARGE THE ON US CAST ON HIM TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF T HE CREDITOR. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ALLEGATI ONS MADE BY THE AO ARE BASED ON PRESUMPTIONS INASMUCH AS THE CREDITOR BEIN G FATHER OF THE ASSESSEE, THE PRESUMPTION OF NOT PROVING IDENTITY I S ARBITRARY. THE FACTS ABOUT IMPUGNED GIFT AND REPAYMENT OF LOAN HAVE BEEN CONFIRMED BY THE FATHER IN WRITING, CONSEQUENTLY GENUINENESS ALSO CA NNOT BE ADVERSELY ASSUMED. TO DISBELIEVE THE DOCUMENTARY EVIDENCE, LD . AO HAS DRAWN A PRESUMPTION BASED ON STATEMENT OF THE FATHER DATED 12-05-2004 GIVEN ON SOME EARLIER OCCASIONS IN DIFFERENT CONTEXT AFTER T HE LOAN WAS REPAID, IT WAS HELD THAT THE DOCUMENTARY CONFIRMATION OF TRANS ACTIONS BY THE FATHER WAS NOT BELIEVE ABLE. THE DATE ON WHICH THE STATEME NT WAS GIVEN BY THE FATHER THAT NOTHING IS PAYABLE IS SUBSEQUENT TO REP AYMENT OF LOAN. THE STATEMENT IS CORRECT THAT AS ON THE DATE OF STATEME NT THE FATHER HAD NOTHING TO GIVE TO ANYBODY. LD. COUNSEL CONTENDS THAT ENTIR E EDIFICE OF IMPOSITION OF PENALTY IS WITHOUT ANY BASIS AND BASED ON SURMIS ES AND CONJECTURES. 2.5 THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A ) . 2.6 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT EMERGES FROM THE RECORD THA T THE ALLEGATIONS OF LD. ITA NO.156/JP/2013 SHRI ASHOK KUMAR GUPTA, VS. ITO, WARD- BEHROR . 4 AO THAT IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE FATHER HAS NOT BEEN PROVED, IS BASED ON SURMISES WHICH ARE NOT BOR NE OUT FROM THE RECORD. THE ONLY QUESTION IS ABOUT ALLEGED MISS-MAT CH BETWEEN FATHERS CONFIRMATION AND HIS EARLIER STATEMENT DATED 12-05- 2004. IT HAS BEEN PROPERLY CLARIFIED BY ASSESSEE THAT THERE IS NO MIS MATCH AS THE STATEMENT WAS GIVEN AFTER THE LOAN WAS REPAID. IN THESE FACTS AND CIRCUMSTANCES, IN MY CONSIDERED VIEW, IT IS NOT A FIT CASE FOR IMPOSI TION OF PENALTY WHICH IS DELETED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED . 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED PRONOUNCED IN THE OPEN COURT ON 26-05-2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26 /05/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ASHOK KUMAR GUPTA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- BEHROR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 156/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR