Shri Atulkumar Sanmukhram Vyas, Surat V. The Income tax Officer,Ward-7(1), Surat

ITA 1611/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6664 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-04-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 14-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DHARMENDRA RETIWALA
• Keywords: Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND D.K. TYAGI, JUDICIAL MEMBER) ITA NO.1611/AHD/2010 [ASSTT. YEAR : 2007-2008] ATULKUMAR SANMUKHRAM VYAS 5, GURU KRUPA SOCIETY L.B. SHASTRI ROAD BARDOLI, DIST: SURAT. VS. ITO, WARD-7(1) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHARMENDRA RETIWALA REVENUE BY : SHRI RAJESH OJHA O R D E R PER BENCH: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-V, SURAT OUT OF THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 143(3) THE I NCOME TAX ACT, 1961. 2. THE FIRST GROUND OF APPEAL OF THE ASSESSEE READS AS UNDER: 1. THE CIT(A) HAS FAILED IN APPRECIATING THE FACTS THAT THERE WAS REASONABLE CAUSE FOR THE DELAY OCCURRED IN FILI NG OF APPEAL BEFORE THE CIT(A) AGAINST THE ORDER OF ASSESSMENT U /S.143(3) OF THE ACT. HENCE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND ALSO IN LAW, THE CIT(A) HAS ERRED IN CONDONING THE DELAY OCCURRED IN FILING OF APPEAL. THE APPELLANT PRAYS THAT THE DELAY OCCURRED IN FILING OF APPEAL MAY PLEASE BE CONDONED. OTHER GROUNDS ARE ONLY ARGUMENTS IN SUPPORT OF THE GROUND NO.1. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD RECEIVED A SSESSMENT ORDER ON 30- 4-2009 AGAINST WHICH APPEAL BEFORE THE CIT(A) WAS F ILED ON 3-9-2009. THUS BEFORE THE CIT(A), APPEAL WAS DELAYED BY APPRO XIMATELY FIVE ITA NO.1611/AHD/2010 -2- MONTHS. THAT THE CIT(A) DID NOT CONDONE THE DELAY AND DID NOT ADMIT THE APPEAL. HE HAS STATED THAT AT THE RELEVANT TIME TH E ASSESSEES REAL-BROTHER WAS SUFFERING FROM CANCER AND WAS UNDER MEDICAL TRE ATMENT FOR ABOUT ONE YEAR. THAT AFTER THE DEATH OF THE BROTHER, THE ASS ESSEE WAS UNDER DEPRESSION FOR SOME TIME AND THEREAFTER AS SOON AS HE BECAME NORMAL HE FILED APPEAL BEFORE THE CIT(A). THE LEARNED CIT(A) HAS REJECTED THE ASSESSEES EXPLANATION ON THE GROUND THAT THE ASSES SEE TOOK NEARLY THREE MONTHS AFTER EXPIRY OF HIS BROTHER IN AUGUST, 2009. IT IS EXPLAINED BY THE LEARNED COUNSEL THAT DUE TO EXPIRY OF HIS BROTHER, THE ASSESSEE WAS ALMOST UNDER DEPRESSION THEREFORE HE COULD NOT LOOK AFTER THE WORK OF FILING OF THE APPEAL. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE CIT(A) AND HE HAS STATED THAT THERE WAS DELAY OF MO RE THAN FIVE MONTHS WHICH THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN , THEREFORE, THE CIT(A) RIGHTLY REJECTED THE ASSESSEES REQUEST FOR CONDONA TION OF DELAY. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL PLACED BEFORE US. THE HONBLE APEX COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI AND OTHERS, 167 IT R 471 (SC) HAS LAID DOWN THAT COURT SHOULD TAKE LIBERAL APPROACH WHILE CONSI DERING THE ISSUE OF CONDONATION OF DELAY. IN THIS REGARD THEIR LORDSHI PS OBSERVED AS UNDER: THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATT ERS ON MERITS. THE EXPRESSION ' SUFFICIENT CAUSE ' IN SECTION 5 IS ADE QUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE-THAT BEING THE LIFE-P URPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. ITA NO.1611/AHD/2010 -3- IN THE CASE OF THE ASSESSEE, THE DELAY IN FILING OF THE APPEAL BEFORE CIT(A) WAS APPROXIMATELY FIVE MONTHS. AT THE RELEVANT TIM E, THE ASSESSEES BROTHER WAS SUFFERING FROM CANCER AND ULTIMATELY EX PIRED IN AUGUST, 2009. IN OUR OPINION, CONSIDERING THE FACTS OF THE CASE, IT WOULD BE APPROPRIATE TO HOLD THAT THERE WAS SUFFICIENT CAUSE FOR ASSESSEES FAILURE TO CONDONE THE DELAY IN FILING OF THE APPEAL. WE THER EFORE HOLD THAT THE CIT(A) OUGHT TO HAVE CONDONED THE DELAY. WE THEREF ORE DIRECT HIM TO CONDONE THE DELAY AND ADMIT THE ASSESSEES APPEAL. 6. ORDINARILY, IN SUCH CIRCUMSTANCES, THE MATTER IS REQUIRED TO BE SENT TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERIT. HOWEVER, WE FIND THAT IN THIS CASE, THE CIT(A) THOUGH DID NOT ADMIT THE APPE AL BUT HAS ALSO ADJUDICATED THE APPEAL ON MERIT AND THE ONLY ISSUE RAISED IN THIS APPEAL IS WITH REGARD TO THE DENIAL OF EXEMPTION UNDER SECTIO N 10(10C) OF THE IT ACT OF RS.5 LAKHS IN RESPECT OF VRS TAKEN BY THE AS SESSEE. SINCE THE CIT(A) HAS ALREADY ADJUDICATED THE APPEAL ON MERIT ALSO AND THE MATTER IS ALSO COVERED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CSE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN, 175 TAXMAN 113, WE DEEM IT PROPER TO ADJUDICATE THE APPEAL ON MERIT AL SO. 7. THE ASSESSEE WAS AN EMPLOYEE OF STATE BANK OF IN DIA. HE RETIRED FROM HIS SERVICE UNDER VRS AND RECEIVED EX- GRATIA PAYMENT ON ACCOUNT OF VRS AMOUNTING TO RS.8,48,649/-, OUT OF WHICH THE ASSESSEE CLAIMED EXEMPTION UNDER SECTION 10(10C) AMOUNTING TO RS.5,0 0,000/- WHICH IS PARTLY ALLOWED BY THE AO AND HIS ORDER IS UPHELD BY THE CIT(A). WE FIND THAT THE HONBLE BOMBAY HIGH COURT HAS CONSIDERED T HE IDENTICAL ISSUE IN THE CASE OF KOODATHIL KALLYATAN AMBUJAKSHAN (SUPRA) AND HELD AS UNDER: FURTHER, IN VIEW OF THE JUDGMENT OF THE BOMBAY HIG H COURT IN THE CASE OF CIT VS. NAGESH DEVIDAS KULKARNI, 291 ITR 407, ITA NO.1611/AHD/2010 -4- THE ASSESSEE WOULD BE ENTITLED TO THE BENEFITS UNDE R SECTION 89 IN ADDITION TO THE BENEFITS AVAILABLE UNDER SECTION 10(10C) FOR THE IN EXCESS OF RS.5 LAKHS RECEIVED UNDER THE OERS . THE FACTS OF THE CASE UNDER APPEAL BEFORE US ARE ID ENTICAL THEREFORE THE ABOVE DECISION OF THE HONBLE BOMBAY HIGH COURT WOU LD BE SQUARELY APPLICABLE. NO CONTRARY DECISION IS BROUGHT TO OUR KNOWLEDGE. WE THEREFORE RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HONBLE BOMBAY HIGH COURT HOLD THAT THE ASSESSEE IS ENTITLE D FOR EXEMPTION UNDER SECTION 10(10C) AMOUNTING TO RS.5,00,000/-. 8. IN RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 TH MAY, 2011 SD/- SD/- (D.K. TYAGI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 19-05-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD