Panduranga Reddy Bathula, Hyderabad, Hyderabad V. ITO, Ward-4(1), Hyderabad, Hyderabad

ITA 1686/HYD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2518 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO
• Keywords: Bonafide belief; Condonation of delay
• Section: 263; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A. NO. 1686/HYD/2016 ASSESSMENT YEAR: 2009-10 PANDURANGA REDDY BATHULA, HYDERABAD. PAN AFXPB 5226 K VS INCOME-TAX OFFICER, WARD 4(1), HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO FOR REVENUE : SHRI K.J. RAO DATE OF HEARING : 11-05-2017 DATE OF PRONOUNCEMENT : 12-05-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, HYDERABAD, DATED 09-09-2016 FOR THE A.Y. 2009-10 WHEREIN THE ASSESSE E HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT CONDONING THE DELAY IN FILING THE APPE AL. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE PETITION REQUESTING FOR CONDONA TION OF DELAY FILED BEFORE THE LEARNED COMMISSIONER OFIN COME- TAX (APPEALS) AND CONDONED THE DELAY. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT DECIDING THE GROUNDS OF APPEAL AGITATE D BY THE APPELLANT. I.T.A. NO. 1686/HYD/2016 PANDURANGA REDDY BATHULA, HYD. :- 2 -: 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED HIS RETURN OF INCOME FOR THE AY 2009-10 ON 14/12/20 09 DECLARING AN INCOME OF RS. 2,00,840/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER THE CASS. NOTICES WERE ISSUED U/S 143(2) AND 142(1). THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 26/12/2011 DETERMINING THE TOTAL INCOME A T RS. 15,83,310/-. 3. THE ASSESSEE PREFERRED THE APPEAL BEFORE THE CI T(A), HOWEVER, THE APPEAL FILED BEFORE THE CIT(A) WITH A DELAY OF 593 DAYS, FOR WHICH THE ASSESSEE FILED A CONDONATIO N PETITION FOR THE SAID DELAY AND ALSO FILED AN AFFID AVIT AFFIRMING THE REASONS MENTIONED IN THE PETITION. 4. THE CIT(A), HOWEVER, WAS NOT AGREEING TO THE REA SONS GIVEN BY THE ASSESSEE IN THE CONDONATION PETITION A ND DISMISSED THE APPEAL BY HOLDING THAT THE ASSESSEE H AS NOT GIVEN ANY CONVINCING REPLY TO JUSTIFY THAT THE ASSE SSEE HAS SUFFICIENT CAUSE FOR NOT FILING AN APPEAL WITHIN TH E STIPULATED TIME. 5. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE CI T(A) OUGHT TO HAVE CONSIDERED THE PETITION REQUESTING FO R CONDONATION OF DELAY FILED BEFORE HIM AND SHOULD HA VE CONDONED THE DELAY WHILE THE LD. DR SUBMITTED THAT THE CIT(A) IS RIGHT IN NOT CONDONING THE DELAY AS THERE IS A LAXITY IN THE APPROACH OF THE ASSESSEE. I.T.A. NO. 1686/HYD/2016 PANDURANGA REDDY BATHULA, HYD. :- 3 -: 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL FACTS ON RECORD. IN THE CONDONATION PE TITION FILED BEFORE THE CIT(A), THE ASSESSEE STATED AS UND ER: THE PETITIONER HEREIN IS AN INDIVIDUAL DERIVING INC OME FROM SCREEN PRINTING. FOR THE ASSESSMENT YEAR 2009- 10, HE FILED THE RETURN OF INCOME ON 14.12.2009 ADMITTI NG AN INCOME OF RS.2,00,840/-. THE ASSESSING OFFICER CONV ERTED THE CASE TO SCRUTINY AND ISSUED NOTICES U/S 143(2) AND 142(1) OF THE LT. ACT. THE ASSESSEE FURNISHED THE REQUIRED DETAILS. THE ASSESSING OFFICER COMPLETED T HE ASSESSMENT U/S 143(3) OF THE LT. ACT VIDE ORDER DAT ED 26.12.2011. THE SAID ORDER WAS SERVED ON 6.1.2012. AS THERE WAS A MISTAKE IN THE ORDER OF ASSESSMENT REGARDING THE AMOUNT OF CONTRACT RECEIPTS FROM RAJA SHREE CEMENTS, THE PETITIONER VIDE LETTER DATED 3.2.2012 REQUESTED THE ASSESSING OFFICER TO RECTIFY THE SAID MISTAKE BY PASSING AN ORDER U J S 154 AS THE SAID MISTAKE IS APPARENT FROM RECORD. IN THE SAID PETITI ON THE ASSESSEE SOUGHT RECTIFICATION OF ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER AS THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT IT IS ONLY A MISTAKE APPARENT FROM RECORD. THE SAID PETITION IS NOT DISPOSED OF SO FAR . IN THE MEAN TIME, THE ASSESSEE SHIFTED HIS RESIDENCE FROM PADMASALI COLONY, GANDHINAGAR TO BHARATNAGAR RAMANTHAPUR DURING MARCH, 2012.AND HE ALSO DISCONTINUED THE BUSINESS ACTIVITY. THEREAFTER, HE HAS NOT RECEIVED ANY COMMUNICATION FROM THE INCOME TAX DEPARTMENT. HOWEVER, DURING THE MONTH OF AUGUST, 20 13 HE CONTACTED THE INCOME-TAX DEPARTMENT WHEN A NOTIC E REQUIRING THE PETITIONER TO FILE THE RETURNS OF INC OME FOR THE SUBSEQUENT YEARS WAS RECEIVED. AT THIS STAGE HE CONTACTED AN ADVOCATE IN CONNECTION WITH THE PETITI ON FILED ON 3.2.2012 WHICH IS PENDING BEFORE THE ASSES SING OFFICER. HE ADVISED THAT AN APPEAL MAY BE FILED AGA INST THE ORDER OF ASSESSMENT THROUGH THE PETITION FOR RECTIFICATION IS PENDING BEFORE THE ASSESSING OFFIC ER. THE PETITIONER WAS UNDER THE BONAFIDE BELIEF THAT PENDI NG DISPOSAL OF THE SAID PETITION NO APPEAL NEED BE FIL ED CONTESTING THE ORDER OF ASSESSMENT. THE APPEAL BEFO RE THE HON'BLE CIT (APPEALS) IS BEING FILED ON 20.9.20 13. THERE IS A DELAY OF 593 DAYS IN FILING THE APPEAL. THE PETITIONER HUMBLY SUBMITS THAT THE DELAY IS FOR THE I.T.A. NO. 1686/HYD/2016 PANDURANGA REDDY BATHULA, HYD. :- 4 -: REASONS BEYOND THE CONTROL OF THE PETITIONER PARTIC ULARLY IN VIEW OF THE FACT THAT THE PETITIONER WAS PURSUIN G AN ALTERNATE REMEDY. 6.1 IN THIS CONNECTION, WE REFER TO THE CASE OF M/ S VIRUPA TOWNSHIP, THE COORDINATE BENCH OF ITAT, VIZAG WHEREIN THE BEN CH WAS CONDONED THE DELAY OF 603 DAYS RELYING ON THE DECISION OF HO NBLE BOMBAY HIGH COURT IN THE CASE OF REMEX CONSTRUCTIONS/REMEX ELEC TRICALS VS. FIRST INCOME-TAX OFFICER AND OTHERS, 166 ITR 18, WHEREIN THE BOMBAY HIGH COURT HAS HELD AS UNDER: THE GRIEVANCE OF SHRI PANDIT THAT THE TRIBUNAL WAS, VERY TECHNICAL IN NOT CONDONING THE DELAY OF ABOUT THREE YEARS IN FILING THE APPEALS AGAINST THE ORDERS PASSED UNDER S. 263 OF T HE ACT IS NOT WITHOUT MERIT. THE TRIBUNAL HELD THAT THE PETITIONE R OUGHT TO HAVE FILED AN APPLICATION FOR CONDONATION OF DELAY DULY SUPPORTED BY AN AFFIDAVIT AT THE TIME OF PRESENTATION OF APPEAL, BU T INSTEAD OF THAT, MERELY APPEALS WERE LODGED AND AN AFFIDAVIT OF A PA RTNER OF THE FIRM WAS TENDERED ONLY WHEN THE OBJECTION WAS RAISE D ABOUT THE DELAY IN FILING THE APPEALS. IT IS UNDOUBTEDLY TRUE THAT THE EXPLANATION GIVEN IN THE AFFIDAVIT FOR DELAY IN LOD GING THE APPEALS IS NOT VERY SUBSTANTIAL, BUT, IN MY JUDGMENT, TAKIN G INTO CONSIDERATION THE FACT THAT THE REVISIONAL AUTHORIT Y HAD ACTED WITHOUT JURISDICTION, WAS ENOUGH FOR THE TRIBUNAL T O CONDONE THE DELAY AND ENTERTAIN THE APPEALS. IT IS TRUE THAT TH E TRIBUNAL COULD NOT ENTERTAIN THE APPEALS BEYOND THE PERIOD OF LIMI TATION AS A MATTER OF COURSE, BUT EQUALLY THE TRIBUNAL WOULD NO T DEFEAT THE ENDS OF JUSTICE MERELY BECAUSE THE PARTIES FAILED T O RESORT TO PROPER PROCEDURE IN FILING THE APPEALS. IN MY JUDGM ENT, THE TRIBUNAL OUGHT TO HAVE CONDONED THE DELAY IN FILING THE APPEALS IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ONCE IT IS FOUND THAT THE APPEALS AGAINST THE ORDER OF THE REVISIONAL AUTHORITY SHOULD HAVE BEEN ENTERTAINED A ND IT IS FURTHER FOUND THAT THE ORDER OF THE REVISIONAL AUTHORITY WA S WHOLLY WITHOUT JURISDICTION, THEN THE SEQUITUR IS THAT THE APPEALS FILED AGAINST THE REVISIONAL AUTHORITY MUST BE ALLOWED. SHRI JETLY DI D NOT SERIOUSLY DISPUTE THAT IF THE APPEALS WERE MAINTAINABLE AND W ERE ENTERTAINED, THE ORDER OF THE REVISIONAL AUTHORITY COULD NOT BE SUSTAINED. IN THESE CIRCUMSTANCES, IN MY JUDGMENT, THE PETITIONER IS ENTITLED TO SUCCEED. SHRI JETLY SUBMITTED THAT T HE PETITIONER HAD AN ALTERNATE REMEDY OF SEEKING REFERENCE AGAINST TH E ORDER OF THE TRIBUNAL AND AS THE PETITIONER HAS FAILED TO ADOPT THAT REMEDY, THE RELIEF SHOULD NOT BE GRANTED. NORMALLY, I WOULD NOT HAVE PERMITTED THE PETITIONER TO APPROACH THE WRIT COURT FOR RELIE F, WHEN THERE WAS I.T.A. NO. 1686/HYD/2016 PANDURANGA REDDY BATHULA, HYD. :- 5 -: REMEDY OF SEEKING REFERENCE, BUT TAKING INTO CONSID ERATION THE FACT THAT THIS PETITION IS PENDING IN THIS COURT FOR THE LAST FOUR YEARS AND THE FACT THAT THE PETITIONER IS A SMALL CONCERN HAVING A SMALL TURNOVER AND THE FACT THAT THE ORDER PASSED BY THE REVISIONAL AUTHORITY WAS WHOLLY WITHOUT JURISDICTION, I AM NOT INCLINED TO REFUSE THE RELIEF ON THE GROUND OF AVAILABILITY OF ALTERNATE REMEDY. THEREFORE CONSIDERING THE ASSESSEES EXPLANATION GI VEN IN THE PETITION FOR CONDONATION OF DELAY BEFORE THE CIT(A), APPLYIN G THE RATIO IN THE DECISION OF THE BOMBAY HIGH COURT (SUPRA) WHEREIN I T IS CLEAR THAT ALTERNATE REMEDY CANNOT BE REFUSED AND IN THIS CASE SINCE PETITION U/S 154 HAS NOT BEEN DISPOSED OFF FOR A LONG PERIOD OF TIME, , I AM OF THE VIEW THAT THE ASSESSEE IS PREVENTED BY SUFFICIENT C AUSE IN FILING THE APPEAL BEFORE THE CIT(A) WITHIN THE STIPULATED TIME . THEREFORE, IT IS APPROPRIATE TO REMIT THE APPEAL BACK TO THE CIT(A) WITH A DIRECTION TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICA TION ON MERITS. NEEDLESS TO SAY, ASSESSEE MAY BE GIVEN PROPER OPPOR TUNITY OF BEING HEARD IN THE MATTER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2017. SD/- (ASHA V IJAYARAGHAVAIN) JU DICIAL MEMBER HYDERABAD, DATED: 12 TH MAY , 2017. KV I.T.A. NO. 1686/HYD/2016 PANDURANGA REDDY BATHULA, HYD. :- 6 -: COPY TO 1 PANDURANGA REDDY BATHULA, C/O SRI S. S. RAMA RAO9 , ADVOCATE, FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYATNAGAR, HYDERABAD 500 029. 2 ITO, WARD 4(1), IT TOWERS, AC GUARDS, HYDERAB AD. 3 CIT (A)-1, HYDERABAD. 4 PR. CIT 1, HYDERABAD. 5 THE DR, ITAT HYDERABAD 6 GUARD FILE