Jai Gurudev Developers, Pune V. Income-tax Officer, Ward - 11(4), Pune

ITA 1628/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6786 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Condonation of delay; Set aside
• Section: 271(1)(c); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE VIRTUAL COURT BEFORE SH RI P.M. JAGTAP , VICE PRESIDENT (K/Z) AND SH RI PARTHA SARATHI CHAUDHURY , J UDICIAL MEMBER ITA NO S . 1628 TO 1631 /PUN/20 1 7 / ASSESSMENT YEAR S : 20 06 - 07 & 2007 - 08 JAI GURUDEV DEVELOPERS C/O RAJENDRA RAMDAS KANCHAR (PANDE) BALAJI HOUSING SOCIETY, S.NO.75, BLDG NO.B/14, BANER GAON, PUNE 411045 PAN: AAFFJ4157Q VS. ITO, WARD - 11(4), PUNE APPELLANT RESPONDENT / ORDER PER BENCH : OUT OF THE CAPTIONED APPEALS, ITA NOS.1628 & 1629/PUN/2017 PERTAINS TO ASSESSMENT YEAR 2006 - 07 AND ITA NOS.1630 & 1631/PUN/2017 PERTAINS TO ASSESSMENT YEAR 2007 - 08 . 2. IN ALL THESE APPEALS FILED BY THE ASSESSEE BEFORE US ARISE S FROM THE RESPECTIVE ORDERS OF CIT(A) AS ON RECORD CONFIRMING THE ORDERS PASSED BY ASSESSING OFFICER FOR BOTH THE ASSESSMENT YEARS U/S 144 R.W.S. 147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) AND ALSO CONFIRMING THE ORDER OF PENAL TY U/S 271(1)(C) OF THE ACT IMPOSED BY THE ASSESSING OFFICER AS PER ORDERS DATED 26.09.2014 & 28.08.2013 . THAT A T THE VERY OUTSET, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT IN ALL THESE CASES, THE LD. CIT(A) HAS NOT DECIDED THE ISSUES ON MERITS AND HAVE DISMISSED THE APPEALS OF ASSESSEE ON THE GROUND A SSESSEE BY S HRI SHARAD SHAH RE VENUE BY S HRI S.P. WA LIMBE DATE OF HEARING 10 - 0 9 - 2020 DATE OF PRONOUNCEMENT 14 - 0 9 - 2020 ITA NO S . 1628 TO 1631 /PUN/ 20 1 7 JAI GURUDEV DEVELOPERS 2 OF NON CONDONATION OF DELAY IN FILING THE APPEALS . IN THIS REGARD, THE LD. AR FOR THE ASSESSEE BEFORE US HAS PRAYED FOR CONDONATION OF DELAY AND FILED SEPARATE GROUNDS ON WHICH THE DELAY MAY BE CONDONED . TH E CONTENTS OF THE SAID PRAYER AND AFFIDAVIT FILED BY THE LD. AR FOR THE ASSESSEE ARE REPRODUCED HEREUNDER: WITH RESPECT TO REJECTION OF CONDONATION OF DELAY BY CIT(A) WE SUBMIT AS UNDER AND PRAY THAT THE DELAY BE CONDONED & MATTER BE REMITTED BACK TO TH E FILE OF CIT(A) FOR ADJUDICATING THE ISSUE ON MERIT. I ) THE ASSESSEE'S FIRM NAME IS M/S JAI GURUDEV DEVELOPERS HAVING 2 PARTNERS NAMELY - I) LATE MR. SUNIL D KASTURE & II) RAJENDRA KACHAR II ) ONE OF THE PARTNER LATE MR. SUNIL KASTURE WAS LOOKING AFTER THE ACC OUN TS & INCOME TAX MATTERS OF FIRM. III ) HOWEVER, LATE MR. SUNIL KASTURE WAS NOT KEEPING A GOOD HEALTH SINCE MANY DAYS. HE DIED ON 28 - 07 - 2012. IV ) THEREFORE, THE AFFAIRS OF THE FIRM WERE NOT GETTING ATTENDED & GOT DISTURBED. V ) OUR ONLY SURVIVING PARTNER MR . RAJENDRA KACHAR WAS NOT FULLY AWARE ABOUT THE INCOME TAX PROCEED I NGS & ALSO THE FACT TH AT ANY ORDER WAS PASSED IN THE NAME OF FIRM. VI ) THIS FACT IS ALSO VISIBLE FROM THE FACT THAT THE NO NOTICE HAS EVER GOT DELIVERED TO ANY PERSON & IT IS MERELY BY WAY OF PASTING ON THE OFFICE . VII ) THEREAFTER, WE MADE AN APPLICATION BEFORE AO FOR PROVIDING COPIES OF THE ORDER . IN RESPONSE THEREOF WE RECEIVED VARIOUS ORDERS ON 15 - 04 - 2015 THE DE TAILS WERE OF HAVE BEEN GIVEN IN THE TABLE HEREUNDER & WE HAVE ALSO GI VEN THE DETAILS OF TECHNIC AL DELAY UPON RECEIVING THE COPIES OF SAID ORDERS . PARTICULAR DATE OF THE ORDER APPEAL DELAY BY DAYS ASSESSMENT ORDER FOR AY 06 - 07 DT.18 - 03 - 2014 392 PENALTY ORDER FOR AY 06 - 07 DT. 26 - 09 - 2014 202 ASSESSMENT ORDER FOR AY 07 - 08 DT. 26 - 02 - 2013 777 PENALTY ORDER FOR AY 06 - 07 DT. 28 - 08 - 2013 594 VIII ) WE HAD BONAFIDE REASON FOR DELAY IN FILING THE APPEALS, NAMELY NON RECEIPT / NON INFORMATION OF PASSING OF SUCH ORDERS. IX ) WE ARE ATTACHING AN AFFIDAVIT IN THIS REGARD. - ANNEXURE 1 WE FURTHER PRAY YOUR HONOR TO CO NSIDER THE BELOW WHILE ADJUDICATING THE ISSUE OF CONDONING THE DELAY I ) WE HAD NO MALAFIDE IN TENTIONS TO FILE THE A PP EAL BELATEDLY. RATHER IN ONE YEAR (AY 06 - 07) THE AGREEMENT RELIED UPON THE LD. AO FOR MAKING ADDITION DOES NOT BELONG TO US & WE ARE JUST PO WER OF ATTORNEY HOLDERS FOR THE SAID AGREEMENT. IN THE ASSESSMENT ORDER FOR AY 06 - 07, AT PAGE 2, IN THE TABLE, THE LD. AO HIMSELF MENTIONED ABOUT THE SAME. II ) THE NOTICE S WER E NOT RECEIVED BY THE FIRM RATHER EVEN THE ASSESSMENT ORDERS WERE ALSO AFFIXED AT O UR ADDRESS. THE FACT IS MENTIONED IN THE ASSESSMENT ORDER. ITA NO S . 1628 TO 1631 /PUN/ 20 1 7 JAI GURUDEV DEVELOPERS 3 CONSIDERING ALL THE ABOVE, WE PRAY YOUR HONOR TO CONDONE THE DELAY IN FILING THE APPEAL. FOR JAI GURUDEV DEVELOPERS SD/ - PARTNER ENCL: A.A. AFFIDAVIT I, MR. RAJENDRA KACHAR, RESIDING AT BALA JI HOUSING SOCIETY, S. NO 75, B L DG B/14, BANER GAOJI, PUNE, 411 045, SOLEMNLY DECLARE ON OATH THE FOLLOWING - I ) I AM ONLY SURVIVING PARTNER IN THE FIRM M/S JAI GURUDEV DEVELOPERS HAVING PAN - AAFFJ4157Q . A NOTHER PARTNER IN THE FIRM WAS LATE MR. SUNIL KASTU RE. II ) LATE MR. SUNIL K A STURE WAS LOOKING AFTER THE ACCOUNTS & INCOME TAX MATTERS OF FIRM. III ) HOWEVER, LATE MR. SUNIL KASTURE WAS NOT KEEPING A GOOD HEALTH SINCE MANY DAYS. HE DIED ON 28 - 07 - 2012. IV ) THEREFORE, THE AFFAIRS OF THE FIRM WERE NOT GETTING ATTENDED & GO T DISTURBED. V ) I AM THE ONLY SURVIVING PARTNER OF THE FIRM & WAS NOT FULLY AWARE ABOUT THE INCOME TAX PROCEEDINGS & ALSO THE FACT THAT ANY ORDER WAS PASSED IN THE NAME OF FIRM . VI ) THIS FACT I S ALSO VISIBLE FROM THE FACT THAT THE NO NOTICE HAS EVER GOT DELIVERED TO ANY PERSON & IT IS MERELY BY WAY OF PASTING ON THE OFFICE ADDRESS. VII ) THEREAFTER, I MADE AN APPLICATION BEFORE AO FOR PROVIDING COPIES OF THE ORDER. IN RESPONSE THEREOF I RECEIVED VARIOUS ORDERS ON 15 - 04 - 2015. THE DETAILS WERE OF HAVE BEEN GIVEN IN THE TA BLE HEREUNDER & I HAVE ALSO GIVEN THE DETAILS OF TECHNICAL DELAY UPON RECEIVING THE COPIES OF SAID ORDERS. PARTICULAR DATE OF THE ORDER APPEAL DELAY BY DAYS ASSESSMENT ORDER FOR AY 06 - 07 DT.18 - 03 - 2014 392 PENALTY ORDER FOR AY 06 - 07 DT. 26 - 09 - 2014 202 A SSESSMENT ORDER FOR AY 07 - 08 DT. 26 - 02 - 2013 777 PENALTY ORDER FOR AY 06 - 07 DT. 28 - 08 - 2013 594 VIII ) THE FIRM HAS BO N AFIDE REASON FOR DELAY IN FILING THE APPEALS, NAMELY NON RECEIPT/NON INFORMATION OF PASSING OF SUCH ORDERS. WHATEVER STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. THIS AFFIDAVIT IS MADE ON THIS 9 TH DAY OF SEPTEMBER 2020 AT PUNE. SD/ - MR. RAJENDRA KACHAR (AFFIANT) ITA NO S . 1628 TO 1631 /PUN/ 20 1 7 JAI GURUDEV DEVELOPERS 4 3. BEFORE US, THE LD. AR FOR THE ASSESSEE PRAYED THAT ONE LAST OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE AND PR INCIPALLY AGREED THAT THERE WAS NEGLIGENCE ON THE PART OF THE ASSESSEE BUT CLAIMED BONAFIDENESS AND SUBMITTED THAT IF A LAST OPPORTUNITY IS PROVIDED AND THE MATTER IS RESTORED BACK TO THE FILE OF LD. CIT(A) FOR BOTH THE ASSESSMENT YEARS IN RESPECT OF ALL T HE APPEALS, THEN THE ASSESSEE WOULD WITHOUT FAIL APPEAR BEFORE THE LD. CIT(A) WITH RELEVANT DETAILS, EVIDENCES AS CALLED FOR BY THE FIRST APPELLATE AUTHORITY AND WILL REPRESENT THE CASE ON MERITS. 4. PER CONTRA, THE LD. DR VEHEMENTLY OPPOSED THE PRAYER OF ASSESSEE RELYING ON THE OBSERVATIONS OF LD. CIT(A) THAT THE ASSESSEE IS IN CONSTANT HABIT OF EVADING THE PROCESS OF LAW ENFORCED BY THE DEPARTMENT AND I NSPITE OF SEVERAL OPPORTUNITIES GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER, THE ASSESSMENT COULD ONLY BE COMPLETED U/S 144 R.W.S. 147/148 OF THE ACT. HOWEVER, THE LD. DR SUBMITTED THAT WITH THE UNDERTAKING OF THE LD. AR THAT HE WILL ATTEND DILIGENTLY FOR THE HEARING BEFORE THE LD. CIT(A) AND SUBMIT DETAILS, EVIDENCES AS CALLED FOR, THEREFORE, THE MAT TER MAY BE RESTORED TO THE FILE OF LD. CIT(A) FOR RE - ADJUDICATION ON MERITS. 5. ON HEARING THE PARTIES HEREIN, WE ARE OF THE CONSIDERED OPINION THAT THE RIGHTS AND LIABILITIES OF THE PARTIES ARE YET TO BE DECIDED ON MERITS BY THE FIRST APPELLATE AUTHORITY . EVEN GOING BY THE APPEAL MEMO IN THE GROUNDS OF APPEAL FILED BY THE ASSESSEE, IT IS STATED THAT THE LD. CIT(A) SHOULD HAVE ADJUDICATED THE ISSUES ON MERITS. THEREFORE, TAKING THE FACTS AND CIRCUMSTANCES IN TOTALITY AND IN THE INTEREST OF JUSTICE, FOR A S A MATTER OF FACT THAT THE INCOME TAX ACT IS WELFARE LEGISLATION, WE ARE OF THE VIEW THAT ONE FINAL OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE AND THEREFORE, WE SET ASIDE THE RESPECTIVE ORDERS OF LD. CIT(A) WITH A DIRECTION TO CONDONE THE DELAY IN FILING THE APPEALS BEFORE HIM AND RESTORE THE MATTER BACK TO HIS FILE FOR RE - ADJUDICATION ON MERITS COMPLYING WITH ITA NO S . 1628 TO 1631 /PUN/ 20 1 7 JAI GURUDEV DEVELOPERS 5 THE PRINCIPLES OF NATURAL JUSTICE AND ALSO WE DIRECT THE ASSESSEE TO IMMEDIATELY APPEAR BEFORE THE LD. CIT(A) ON RECEIPT OF THIS ORDER AND COOPERAT E WITH THE PROCEEDINGS OF LAW WITH FILING DETAILS, RELEVANT DOCUMENTS, EVIDENCES AS AND WHEN CALLED FOR BY THE LD. CIT(A), SO THAT THE CASES CAN BE DECIDED ON MERITS. THUS, ALL THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ANY SERVICE OF NOTICE IS DISPENSED WITH. 6 . IN THE RESULT, ALL THE APPEALS OF ASSESSEE IN ITA NOS.1628/PUN/2017 TO 1 631/PUN/2017 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN COURT ON 14 TH SEPTEMBER , 2020 SD/ - SD/ - ( P.M. JAGTAP ) PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER PUNE ; DATED : 14 TH SEPTEMBER , 2020 GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT (A), PUNE - 5, PUNE 4 . 5. THE PR. CIT , PUNE - 4, PUNE DR A BENCH , ITAT, PUNE 6 . / GUARD FILE / BY ORDER, / / TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE