AMRUT INDUSTRIES, MUMBAI V. ITO 25(3)(3), MUMBAI

ITA 1694/MUM/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 4946 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 13-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: A D ANWARI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A, MUMBAI BEFORE SHRI S V MEHROTRA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 1694/MUM/2009 (ASSESSMENT YEAR: 2003-04) AMRUT INDUSTRIES BLDG. NO.43, 6 RUGM PALACE, SAROJANI NAAIDU ROAD, KANDIVLI (W), MUMBAI-400067 PAN:AAAFA6899H ..APPELLANT VS INCOME TAX OFFICER WARD 25(3)(3), MUMBAI. . RESPONDENT ASSESSEE BY : SHRI A D ANWARI REVENUE BY : SHRI O P SHARMA O R D E R PER VIJAY PAL RAO,JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 30.12.2008 OF CIT(A)-XXV, MUMBAI FOR T HE ASSESSMENT YEAR 2003-04. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL. HOWEVER, ONLY ISSUE ARISES FOR OUR CONSIDERATION AN D ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN NOT CONDONING THE DELAY OF 22 MONTHS IN FILING THE APPEAL. ITA NO. 1694/MUM/2009 (ASSESSMENT YEAR: 2003-04) 2 3. THE ASSESSMENT ORDER WAS PASSED ON 27.2.2006 AGA INST WHICH THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) O N 31.12.2007. THUS, THERE WAS A DELAY OF 22 MONTHS IN FILING THE APPEAL BEFORE THE CIT(A). THE ASSESSEE FILED AN AFFIDAVIT FOR CONDONATION OF DELAY. THE CIT(A) DID NOT CONDO NE THE DELAY IN FAILING THE APPEAL AND DISMISSED THE APPEA L IN-LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE. 4. BEFORE US, THE LEARNED AR OF THE ASSESSEE HAS SU BMITTED THAT THE ASSESSEE WAS SUFFERING FROM INTESTINAL COL ITIS, A DISEASE, FROM FEBRUARY 2003 TO NOVEMBER 2007. DUE TO THIS AILMENT, THE ASSESSEE WAS RENDERED WEAK PHYSICALLY RESULTING FALL IN THE BATHROOM AND GOT INJURY IN THE HIP BON E. THE ASSESSEE COULD NOT ATTEND THE BUSINESS MATTER DUE TO THE AILMENT. THEREFORE, TAX MATTER WAS ALSO NOT ATTENDE D. HE HAS FURTHER CONTENDED THAT THE OTHER PARTNER SHRI BIPIN MEHTA WAS ALSO OF ADVANCED AGE OF MORE THAN 65 YEARS AND HIS WIFE EXPIRED DURING THE ABOVE PERIOD. THUS, DUE TO THE MULTIPLE DIFFICULTIES, THE APPEAL COULD NOT BE FILED IN TIME . HE HAS REFERRED THE MEDICAL RECORD OF SHRI SURENDRA AMRAT LAL DOSHI, THE PARTNER OF THE ASSESSEE FIRM. A COPY OF THE RE CORD HAS BEEN FILED ON RECORD. THE LEARNED AR HAS SUBMITTED THAT THE ASSESSEE WAS UNDERGOING THE TREATMENT DURING THIS P ERIOD WHICH IS EVIDENT FROM THE MEDICAL REPORT. THEREFOR E, THE DELAY IN FILING THE APPEAL IS NOT INTENTIONAL AND MOTIVAT ED BUT DUE TO ITA NO. 1694/MUM/2009 (ASSESSMENT YEAR: 2003-04) 3 UNAVOIDABLE CIRCUMSTANCES. HE HAS PLEADED THAT TH E MATTER SHOULD NOT BE DECIDED ON TECHNICAL GROUND BUT ON M ERITS. 5. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY OPP OSED THE APPEAL OF THE ASSESSEE AND SUBMITTED THAT THER E IS AN INORDINATE DELAY IN FILING THE APPEAL AND THE ASSES SEE HAD ALSO NOT APPEARED BEFORE THE AO. THEREFORE, THE CONDU CT OF THE ASSESSEE DOES NOT DESERVE ANY LENIENT VIEW. HE HA S RELIED UPON THE ORDER OF THE CIT(A). 6 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RELE VANT RECORD. IT IS SETTLED LAW THAT WHILE CONDONING THE DELAY, THE COURT SHOULD TAKE A LENIENT VIEW. IT IS ALWAYS A Q UESTION WHETHER THE EXPLANATION AND REASONS FOR DELAY WAS B ONAFIDE OR WAS MERELY DEVISE TO COVER AN ULTERIOR PURPOSE SU CH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDERHAND WAY. WHEN IT IS BROUGHT ON RECORD THAT THE PARTIES HAS NOT ACTED IN MALAFIED BUT A RE ASONS EXPLAINED ARE FACTUALLY CORRECT THEN COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND SHOULD LEAN I N FAVOUR OF SUCH PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHN ICAL CONSIDERATION ARE OPPOSED TO EACH OTHER, CAUSE OF S UBSTANTIAL JUSTICE HAS TO BE PREFERRED. JUSTICE ORIENTED APPRO ACH HAS TO BE TAKEN BY A COURT WHILE DECIDING THE MATER FOR CO NDONATION ITA NO. 1694/MUM/2009 (ASSESSMENT YEAR: 2003-04) 4 OF DELAY. HOWEVER, THIS DOES NOT MEAN THAT A LIT IGANT GETS FREE LICENCE TO APPROACH THE COURT AT ITS WILL. 7. IN THE CASE IN HAND, THE ASSESSEE EXPLAINED THE AILMENT AND SUBSEQUENT INJURIES IN HEAP BONE AND SUPPORTED THE SAME BY A MEDICAL RECORD WHICH IS NOT DISPUTED BY T HE REVENUE OR THE CIT(A). THE CIT(A) DECLINED TO CONDONE THE DELAY ON THE GROUND THAT THE CAUSE EXPLAINED BY THE ASSESS EE IS NOT SUFFICIENT. THE EXPLANATION OF THE ASSESSEE THAT T HE OTHER PARTNER WAS ALSO IN ADVANCE AGE AND DUE TO DEATH O F HIS WIFE WAS IN DEPRESSION AND COULD NOT TAKE THE STEPS WAS ALSO NOT DISPUTED. HOWEVER, THE CIT(A) WAS NOT SATISFIED WI TH THESE GROUNDS AS SUFFICIENT REASONS. KEEPING IN VIEW THE PRINCIPLE THAT TECHNICALITY SHOULD NOT COME IN THE WAY IN DEC IDING THE MATTER ON MERITS AND SUBSTANTIAL JUSTICE AS WELL AS IN THE INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT THE ASSESSEE EXPLAINED A GOOD AND REASONABLE CAUSE FOR NOT FILI NG THE APPEAL WITHIN THE TIME LIMIT PRESCRIBED UNDER LAW. ACCORDINGLY, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY OF 22 MONTHS IN FILLING THE APPEA L BEFORE THE CIT(A). SINCE THE CIT(A) HAS NOT DECIDED THE MATTER ON MERITS, WE REMIT THE MATTER TO THE RECORD OF THE CIT(A) FO R DECIDING THE SAME ON MERIT. ITA NO. 1694/MUM/2009 (ASSESSMENT YEAR: 2003-04) 5 8 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.08.2010 SD SD (S V MEHROTRA ) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 31ST AUG 2010 SRL:30810 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI