Aadil abdulsattar Memon, Ahmedabad V. DCIT, CPC, Banglore

ITA 1651/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7505 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 10-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Period of limitation
• Section: 143(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ITA NO. 1651/AHD/2018 ( /ASSESSMENT YEAR : 2012-13) AADIL ABDULSATTAR MEMON 10 TH FLOOR, PRESIDENT HOUSE OPP. C N VIDYALAYA ELLISBRDIGE AHMEDABAD / VS. THE DCIT CPC BANGALORE ./ ./PAN/GIR NO. : AELPM 9370 E ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI BIREN SHAH, AR / RESPONDENT BY: SHRI VIDHYUT TRIVEDI, SR.DR / DATE OF HEARING 29/01/2020 / DATE OF PRONOUNCEMENT 30/01/2020 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)6, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-6 /226/17-18 DATED 01/05/2018 ARISING IN THE ORDER PASSED BY THE DCIT, CPC, BANGALORE UNDER S.143(1) OF THE INCOME TAX ACT, 1961(HEREINAFTER RE FERRED TO AS 'THE ACT') DATED 12.5.2013 RELEVANT TO ASSESSMENT YEAR (AY) 2 012-13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES O F THE APPELLANTS CASE, THE LD.CIT(A) HAS ERRED IN DISMISSING THE APPLICATI ON FOR CONDONATION OF ITA NO.1651/AHD/2018 AADIL ABDULSATTAR MEMON VS. DCIT ASST.YEAR - 2012 -13 - 2 - DELAY AND THEREBY DISMISSING THE APPEAL OF THE APPE LLANT, WITHOUT APPRECIATING FACTS AND LAW OF THE CASE PROPERLY. 2. IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE LD.CIT(A) HAS FURTHER ERRED IN NOT ADJUDICATING GROUNDS OF APPEAL RAISED BY THE APPELLANT ON MERITS, WITHOUT APPRECIA TING FACTS AND LAW OF THE CASE PROPERLY. 3. THE APPELLANT CRAVES LEAVE TO ADD, DELETE, ALTER OR AMEND ANY OF THE GROUND/S ON OR DURING THE APPELLATE PROCEEDINGS. 2. AT THE OUTSET, THE LEARNED AR BEFORE US SUBMIT TED THAT THERE WAS DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT (A) ABOUT 4 YEARS AND 2 MONTHS WHICH WAS NOT CONDONED BY HIM. THEREFORE, THE LEARN ED CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DELAY IN F ILING THE SAME AND WITHOUT ADJUDICATING ON MERIT VIDE ORDER DATED 01-05-2018. 3. THE LEARNED AR FURTHER SUBMITTED THAT THE PRIMAR Y REASON FOR NOT FILING THE APPEAL BEFORE THE LEARNED CIT (A) WAS THAT THE INTIMATION UNDER SECTION 143(1) ISSUED BY CPC BANGALORE WAS RECEIVED BY THE ASSESSEE DATED 22-01- 2018. HOWEVER, THE LD. CIT(A) ALLEGED THAT SUCH INT IMATION UNDER SECTION 143(1) WAS ISSUED BY CPC BANGALORE DATED 12-5-2013 WHICH MIGHT HAVE RECEIVED BY THE ASSESSEE WITHIN MONTHS I.E. 12-11- 2013 BUT THE APPEAL WAS FILED AFTER THE INORDINATE DELAY DATED 21-2-2018. H ENCE, THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY THE LD. CIT-A. HOWEVE R, THE LD. AR BEFORE US HAS FILED THE NOTARIZED AFFIDAVIT TO THE EFFECT THA T THE INTIMATION WAS RECEIVED BY THE ASSESSEE ON MAKING THE REQUEST ON LINE TO CP C BANGALORE DATED 19- 01-2018. THE LD. AR ALSO DECLARED THAT HE HAS NOT R ECEIVED ANY INTIMATION IN PAST. THE COPY OF THE AFFIDAVIT IS AVAILABLE ON REC ORD. 3.1 IN VIEW OF THE ABOVE, THE LEARNED AR FOR THE AS SESSEE CLAIMED THAT THE DELAY IN FILING THE APPEAL WAS UNAVOIDABLE AND BEYO ND THE CONTROL OF THE ITA NO.1651/AHD/2018 AADIL ABDULSATTAR MEMON VS. DCIT ASST.YEAR - 2012 -13 - 3 - ASSESSEE. THEREFORE, HE PRAYED BEFORE US TO DIRECT THE LEARNED CIT (A) TO CONDONE THE DELAY AND ADJUDICATE THE ISSUE RAISED B EFORE HIM ON MERIT. 4. ON THE OTHER HAND, THE LEARNED DR BEFORE US SUBM ITTED THAT THERE IS INORDINATE DELAY IN FILING THE APPEAL BEFORE THE LE ARNED CIT (A). ACCORDINGLY, HE OPPOSED TO CONDONE THE DELAY IN FILING THE APPEA L. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDI NG DISCUSSION WE FIND THAT THE CONTROVERSY ARISES FOR OUR ADJUDICATION WHETHER THERE EXIST REASONABLE AND SUFFICIENT CAUSE FOR CONDONING THE DELAY IN FIL ING THE APPEAL BEFORE THE LEARNED CIT (A) IN THE AFORESAID FACTS AND CIRCUMST ANCES. THERE IS NO HARD AND FAST RULE WHICH CAN BE LAID DOWN FOR CONDONING THE DELAY IN FILING THE APPEAL. AS SUCH THE DISCRETION FOR CONDONING THE DE LAY CAN BE EXERCISED DEPENDING UPON THE FACTS OF EACH CASE KEEPING IN MI ND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADV ANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THEREFORE, ADVANCEMENT OF SUBS TANTIAL JUSTICE IS THE PRIME FACTOR WHILE CONSIDERING THE REASONS FOR COND ONING THE DELAY. 6. WE ALSO NOTE THAT THE CASE ON MERIT APPEARS TO BE IN FAVOUR OF THE ASSESSEE. BUT THERE IS A TECHNICAL DEFECT IN THE AP PEAL SINCE THE APPEAL WAS NOT FILED WITHIN THE PERIOD OF LIMITATION FOR THE R EASON AS DESCRIBED ABOVE. THERE WAS THE AFFIDAVIT FILED BY THE ASSESSEE EXPLA INING THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE US. HOWEVER, THE REVENUE HAS NOT FILED ANY COUNTER-AFFIDAVIT TO DENY THE SUBMISSION MADE BY TH E ASSESSEE. 6.1. IT IS ALSO IMPORTANT TO NOTE THAT HONBLE S UPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND ORS. (167 ITR 471) LAID DOWN ITA NO.1651/AHD/2018 AADIL ABDULSATTAR MEMON VS. DCIT ASST.YEAR - 2012 -13 - 4 - CERTAIN PRINCIPLES FOR CONSIDERING THE CONDONATION PETITION FOR FILING THE APPEAL WHICH ARE REPRODUCED HEREUNDER: (1) ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIO US MATTER BEING THROWN AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEA TED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS T HAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. (3) 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMONS ENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO N ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON- DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DE LIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES . A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A S ERIOUS RISK. (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECA USE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6.2. FROM THE ABOVE JUDGMENT OF THE HONBLE APEX COURT, WE NOTE THAT THE SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED RATHER THAN DECIDING THE MATTER ON THE BASIS OF TECHNICAL DEFECT. 6.3. WE ALSO NOTE THAT THERE IS NO ALLEGATION FRO M THE REVENUE THAT THE APPEAL WAS NOT FILED WITHIN THE TIME BY THE ASSESSE E DELIBERATELY. THEREFORE, WE ARE INCLINED TO PREFER SUBSTANTIAL JUSTICE RATHE R THAN TECHNICALITY IN DECIDING THE ISSUE. ITA NO.1651/AHD/2018 AADIL ABDULSATTAR MEMON VS. DCIT ASST.YEAR - 2012 -13 - 5 - 6.4. HOWEVER, WE ARE NOT OBLIVION TO THE FACT TH AT THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 CASTS OBLIGATION UPON THE LD. CIT(A) TO PASS A REASONED ORDER AFTER GIVING A PROPER OPPORTU NITY OF HEARING TO THE ASSESSEE. BUT THE NEGLIGENT/DILLY-DALLY APPROACH O F THE ASSESSEE IN FILING THE APPEAL BEFORE THE LD.CIT(A) CANNOT BE NEGLECTED/IGN ORED. THEREFORE, WE ARE INCLINED TO LEVY A COST OF RS. 5,000/- UPON THE ASS ESSEE FOR ADOPTING THE NEGLIGENT APPROACH IN FILING THE APPEAL BEFORE THE LD.CIT(A). ACCORDINGLY, WE DIRECT THE ASSESSEE TO DEPOSIT A SUM OF RS. 5,000/- TO THE INCOME TAX DEPARTMENT PRIOR TO THE COMMENCEMENT OF HEARING BEF ORE THE LD. CIT(A). 6.5. IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE FACTS IN TOTALITY, WE DIRECT THE LEARNED CIT (A) TO ADMIT THE APPEAL OF T HE ASSESSEE AND ADJUDICATE THE ISSUE RAISED BY HIM ON MERIT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/01/2020 SD/- SD/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 30/01/2020 # . . , . $ . . / T.C. NAIR, SR. PS ITA NO.1651/AHD/2018 AADIL ABDULSATTAR MEMON VS. DCIT ASST.YEAR - 2012 -13 - 6 - !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. %&' ( / CONCERNED CIT 4. ( ( ) / THE CIT(A)-6, AHMEDABAD 5. )*+ $$&' , &' , % / DR, ITAT, AHMEDABAD 6. +./ / GUARD FILE. / BY ORDER, ) $ //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 30.1.2020 ( WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DRA GON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30.1.2020 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.30.1.2020 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.1.2020 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER