Sh Satpal Sharma, Jammu V. The Income Tax Officer, Jammu

ITA 163/ASR/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9784 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAN DA MATHIA LD
• Keywords: Set aside
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N.K.CHOUDHRY, JUDICIAL MEMBER AND SH. O.P.MEENA, ACCOUNTANT MEMBER ITA NOS. 92 & 93/AS R/2017 ASSESSMENT YEARS: 2008-09 & 2009-10 ITA NOS. 162 & 163/AS R/2017 ASSESSMENT YEARS: 2008-09 & 2009-10 SH. SAT PAL SHARMA PROP. M/S SAT PAL AND CO. 93, FRUIT MANDI NARWAL, JAMMU. VS. INCOME TAX OFFICER, WARD 1(3), JAMMU. [PAN:ACUPS 4375C ] (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. RAMAN DA MATHIA (LD. DR) DATE OF HEARING : 18.12.2019 DATE OF PRONOUNCEMENT : 18.12.2019 ORDER PER N.K.CHOUDHRY, JM: THE ASSESSEE HAS PREFERRED THE INSTANT APPEALS AGAINST THE IMPUGNED ORDERS DATED 01.02.2016 & 08.08.2016 RESPECTI VELY PASSED U/S 250(6) & 154 OF THE INCOME TAX ACT, 1961 , BY THE LD. CIT(A), JAMMU (J&K) (HEREINAFTER CALLED AS THE ACT). 2. AT THE OUTSET, IT WAS OBSERVED THAT THERE IS A DELAY OF 89 DAYS FOR FILING OF ITA NOS.92 AND 93/ASR/2017 AND 69 D AYS IN FILING OF ITA NOS.162 AND 163/ASR/2017. 3. AS THE ISSUE AND FACTS OF ALL THE APPEALS UNDER CONSIDERATION ARE SIMILAR AND IDENTICAL, THEREFORE, FOR THE SAKE OF ITA NOS.91, 92, 162 & 163/ASR/ 2019 SAT PAL SHARMA VS. ITO 2 BREVITY ALL THE APPEALS HAVE BEEN TAKEN SIMULTANEOUSLY FOR ADJUDICATION BY THIS COMPOSITE ORDER AND FOR BREVITY T HE FACTS OF ITA NO.92/ASR/2017 SHALL BE TAKEN INTO CONSIDERATION AS A LEAD CASE. 4. CONDOATION OF DELAY IN THE INSTANT CASE, THE ASSESSEE HAD CHALLENGED THE ASSESSMENT ORDER PASSED BY THE ITO, WARD-1(3), JAMMU U/S 147/143(3) OF THE I.T. ACT, 1961. DURING THE PENDENCY OF THE SAID APPEAL DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016 (HEREINAFTER REFERRED TO AS THE SCHEME ) WAS INCORPORATED IN THE FINANCE ACT, 2016 WHICH PROVIDED AN OPPORTUNITY T O TAX PAYERS WHO WERE UNDER LITIGATION AND WHOSE APPEALS WER E PENDING AS ON 29 TH FEB. 2016, TO COME FORWARD AND SETTLE THE DISPUTE IN ACCORDANCE WITH THE PROVISIONS OF THE SCHEME, THEREFORE, IN ORDER TO AVAIL THE BENEFIT OF THE SCHEM E, THE ASSESSEE ON THE WRONG ADVICE OF HIS COUNSEL TO THE EFFECT THAT BEFORE PROCEEDING TO THE SCHEME, THE APPEALS ARE SUPPOSE D TO BE WITHDRAWN, AS THE DECLARATION TO BE FILED UNDER TH E DISPUTE RESOLUTION SCHEME, THE ASSESSEE HAD WITHDRAWN THE APPEALS PENDING BEFORE THE LD. CIT(A) BY MENTIONING THE FACT S : WITHDRAWAL OF APPEAL IS MANDATORY TO PROCEED THE CASE MATTER UNDER DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016 SPECIFIED UNDER CHAPTER XI OF THE FINANCE ACT, 28 OF 2016, AS THE ASSESSEE WANTS TO PURSUE HIS CASE UNDER THE SCHEME. 4.1 IN THAT EVENTUALITY, THE APPEALS OF THE ASSESSEE WERE ALLOWED TO BE WITHDRAWN BY THE LD. CIT(A) VIDE ORDE R DATED ITA NOS.91, 92, 162 & 163/ASR/ 2019 SAT PAL SHARMA VS. ITO 3 08.08.2016. SUBSEQUENTLY ON 27.12.2016 THE ASSESSEE HAD FILED AN APPLICATION U/S 203 OF THE FINANCE ACT, 2016 FOR AVA ILING THE BENEFIT OF DIRECT TAX DISPUTE RESOLUTION SCHEME BEFORE THE LD. PR. COMMISSIONER OF INCOME TAX, J&K, WHICH WAS DISMISSED BY THE LD. PR. COMMISSIONER OF INCOME TAX, JAMMU (J&K) B Y HOLDING AS UNDER: PERUSAL OF RELEVANT RECORD REVEALED THAT YOU PREFERRED AN APPEAL BEFORE THE CIT(A), JAMMU AGAINST THE ASSESSMENT ORDER DATED 24.02.2015 WHICH WAS DISPOSED OFF ON 08.08.2016 VIDE ORDER PASSED IN APPEAL NO.430/14-15. SINCE, APPEAL STAND DISPOSED OFF BEFORE FILING OF APPLICATION UNDER SCHEME, THE APPLICATION CANNOT BE ENTERTAINED . 4.2 THEREAFTER, ON THE ADVICE OF NEW COUNSEL SH. SUBHASH DUTT, ADVOCATE OF THE ASSESSEE, THE ASSESSEE PREFERRED AN APPLICATION U/S. 154 OF THE ACT FOR RECTIFICATION OF TH E ORDER ON THE GROUND THAT AS PER INSTRUCTION OF THE CBDT ISSUED VIDE LETTER F. NO.279/MISC/M-30/2016 DATED 30.03.2016 WHEREBY TH E CBDT HAD DIRECTED ALL THE COMMISSIONERS OF INCOME TAX (APPEAL S) TO KEEP THE APPEALS PENDING WHERE THE APPELLANTS EXPRESS T HEIR INTENTION TO AVAIL THE SCHEME. HOWEVER, THE LD. CIT(A) DISMISSED THE RECTIFICATION APPLICATION FILED U/S 154 BY THE ASSESSEE VIDE ITS ORDER DATED 1 ST FEB., 2016, ORDER, WHICH WAS RECEIVED BY THE ASSESSEE ON 3 RD FEB., 2017. AS THE ASSESSEE HAD FILED AN APPLICATION U/S 154 OF THE ACT, THEREFORE COULD NOT CHA LLENGE THE ORDER DATED 08.08.2016 PASSED IN FIRST APPEAL BEFORE T HE ITAT AND SUBSEQUENTLY THE INSTANT APPEAL WAS FILED ON 20.02. 2017 AND CONSEQUENTLY, THE DELAY OF 89 DAYS HAS BEEN OCCURRED IN FILING OF THE INSTANT APPEAL. ITA NOS.91, 92, 162 & 163/ASR/ 2019 SAT PAL SHARMA VS. ITO 4 5. THE REVENUE DEPARTMENT THOUGH DID NOT REFUTE THE F ACTS AS NARRATED BY THE ASSESSEE, HOWEVER, SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED TO TAKE THE WRONG ADVICE OF TH E COUNSEL AS A BASE FOR CONDONATION OF DELAY. 6. HAVING CONSIDERED THE NARRATED FACTS ABOVE AND APPL IED OUR INDEPENDENT MIND ON THE FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE WAS PREVENTED TO FILE THE STATUTORY APPEAL, WITHIN LIMIT ATION PERIOD DUE TO WRONG ADVICE OF HIS COUNSEL WHICH IS APPARENT FR OM THE DOCUMENTS AND ORDERS AVAILABLE ON RECORD. THEREFORE, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES SPECIFICALLY THAT FOR AVAILING OF THE BENEFIT OF THE SCHEME, THE ASSESSEE W AS NOT SUPPOSED TO WITHDRAW THE APPEALS PENDING BEFORE THE LD . CIT(A) AND AS PER CIRCULAR IT WAS MANDATED TO KEEP ALIVE THE APPEAL FILED IF ANY BEFORE THE LD. CIT(A), HENCE, WE FIND IT FEET CASE FOR CONDONATION OF DELAY. CONSEQUENTLY THE DELAY OF 89 DA YS IN FILING THE INSTANT APPEAL STANDS CONDONED. RESULTANTLY THE DE LAY OCCURRED IN FILLING OF ALL APPEALS UNDER CONSIDERATION ST ANDS CONDONED. 7. MERITS OF THE CASE COMING TO THE MERIT OF THE CASE, AS WE HAVE ALREADY OBSERVED ABOVE THAT FOR AVAILING THE BENEFIT OF SCHEME THERE WAS NO NECESSITY TO WITHDRAW THE APPEAL PENDING IF ANY BEF ORE THE LD. CIT(A) IN VIEW OF DIRECT TAX DISPUTE RESOLUTION S CHEME, 2016, VIDE FINANCE ACT, 2016 ISSUED VIDE CIRCULAR DATED 30.03.2016, HOWEVER, THE ASSESSEE ON WRONG ADVICE OF HIS COUNSEL WITHDRAWN HIS APPEAL AGAINST THE ASSESSMENT ORDER ITA NOS.91, 92, 162 & 163/ASR/ 2019 SAT PAL SHARMA VS. ITO 5 DATED 24.02.2015 PASSED U/S 147/143(3) OF THE I.T. ACT AND THE LD. CIT(A) DISMISSED THE APPEAL AS WITHDRAWN VIDE ITS ORDER DATED 08.08.2016. HENCE, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES, SPECIFICALLY TO THE EFFECTS THAT APPEAL WAS WITHDRAWN INADVERTENTLY AND ON MISCOMMUNICATION OR LA CK OF UNDERSTANDING THE TERMS OF THE CIRCULAR REFERRED ABOVE AND EVEN THE LD. CIT(A) DID NOT PASS THE ORDER ON MERIT , WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DECISION AFRESH, SUFFICE TO SAY WHILE AFFORDING REASONABLE OPPORT UNITIES OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY, THE APPEAL FI LED BY THE ASSESSEE IS LIABLE TO BE ALLOWED. 8. RESULTANTLY, BOTH APPEALS IN ITA NOS.92 & 93/ASR/2017 STANDS ALLOWED FOR STATISTICAL PURPOSES. 9. NOW COMING TO ITA NOS.162 & 163/ASR/2019 WHICH PERTAINS TO CHALLENGE THE ORDER PASSED U/S 154 OF THE ACT , THE SAME STANDS DISMISSED ON BECOMING INFRUCTUOUS IN VIEW OF T HE ORDER PASSED IN ITA NOS. 92 & 93/ASR/2017. 10. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE STAN DS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/1 2/2019. SD/- SD/- (O.P.MEENA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18/12/2019. /PK/ PS. ITA NOS.91, 92, 162 & 163/ASR/ 2019 SAT PAL SHARMA VS. ITO 6 COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THEN CIT(APPEALS) 5. SR DR, I.T.A.T. AMRITSAR 6. GUARD FILE TRUE COPY BY ORDER