V.Vasudevan, CHENNAI V. ACIT, Bangalore

ITA 178/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61004 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Period of limitation; Reasonable cause; Time period of passing order
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER] I.T.A.NO.178/MDS/2012 ASSESSMENT YEAR : 2009-10 SHRI V.VASUDEVAN 23, VEMBULIAMMAN KOIL STREET WEST K.K.NAGAR CHENNAI 600 078 [PAN AAGPV 0973 REVENUE] VS THE ACIT CPC BANGALORE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T. BANUSEKAR, CA RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 17-04-2012 DATE OF PRONOUNCEMENT : 20-04-2012 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSE SSEE AGAINST THE ORDER OF THE LD.CIT(A)-VIII, CHENNAI, DATED 22.12.2011. 2. IN THIS APPEAL, THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEA L OF THE ASSESSEE ON THE GROUND THAT ASSESSEE HAD NOT SHOWN REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL. I.T.A.NO. 178/2012 :- 2 -: 3. THE REGISTRY HAS ISSUED A DEFECT MEMO POINTING OUT THAT THE APPEAL FEE PAID BY THE ASSESSEE WAS ` 500/- AND THEREFORE, THE APPEAL FEE PAID BY THE ASSESSEE FOR ITS APPEAL BEFORE THE TRIBUNAL IS SHORT BY ` 8158/-. 4. AT THE TIME OF HEARING, WHEN THIS WAS POINTED OUT T O THE LD. A.R OF THE ASSESSEE, HE SUBMITTED THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE GROUND THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE ON THE GROUND OF LIMITA TION. HE SUBMITTED A COPY OF THE DECISION OF THE HON'BLE KARNATAKA HI GH COURT IN THE CASE OF RAJAKAMAL POLYMERS (P) LTD. VS CIT [2007] 291 IT R 314 (KAR) WHEREIN IT HAS BEEN HELD THAT WHEN THE APPEALS STO OD REJECTED ONLY ON THE GROUND OF DELAY THE ASSESSEE WAS LIABLE TO PAY COURT FEE @ 500/- FOR THE APPEAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT, WE HOLD THAT THE ASS ESSEE HAS PAID THE REQUIRED FEE I.E ` 500/- IN PRESENTING THE PRESENT APPEAL BEFORE THE TRIBUNAL AND ADMIT THE APPEAL FOR HEARING. 5. THE LD. A.R OF THE ASSESSEE FILED COPY OF FORM NO.3 5 WHICH IS THE MEMO OF APPEAL FILED BEFORE THE LD.CIT(A) WHIC H WAS NOT FILED BY HIM ALONGWITH THE APPEAL PAPERS. FROM THIS, THE LD . A.R OF THE ASSESSEE POINTED OUT THAT HE RECEIVED THE IMPUGNED ORDER U/S 154 I.T.A.NO. 178/2012 :- 3 -: DATED 20.12.2010 PASSED BY THE ASSESSING OFFICER ON LY ON 4.4.2011. HE ALSO PRESENTED BEFORE THE BENCH THE ORIGINAL COP Y OF THE ENVELOPE CONTAINING THE ORDER RECEIVED BY THE ASSESSEE WHER EFROM BY POINTING AT THE STAMP OF THE POSTAL DEPARTMENT, IT WAS SHOWN TO THE BENCH THAT THE DATE OF POSTAL STAMP WAS 4.4.2011 AND THUS, THE DATE OF RECEIPT OF THE ORDER BY THE ASSESSEE WAS 4.4.2011. HE POINTE D OUT FROM THE ORDER OF THE LD.CIT(A) THAT THE LD.CIT(A) HAS IN FIRST PAGE OF THE ORDER STATED THAT THE APPEAL WAS INSTITUTED ON 26.4.2011. HENCE, HE POINTED OUT THAT EFFECTIVELY, THE APPEAL WAS FILED BY THE ASSESSEE WITHIN 22 DAYS FROM THE RECEIPT OF THE IMPUGNED ORDER OF THE ASSESSING OFFICER AND THEREFORE, THE APPEAL WAS PRESENTED BEFORE THE LD.CIT(A) IN TIME. THE LD.CIT(A) HAS ERRED IN TAKING THE DATE OF IMPU GNED ORDER PASSED U/S 154 OF THE ACT BY THE ASSESSING OFFICER WHICH I S 20.12.2010 AS THE DATE OF RECEIPT OF ORDER BY THE ASSESSEE AND CALCU LATING THE LIMITATION FOR FILING THE APPEAL FROM THAT DATE AND HOLDING TH AT THE APPEAL FILED BY THE ASSESSEE BEFORE HIM WAS FILED BELATEDLY BY 96 DAYS. THUS, IT WAS HIS SUBMISSION THAT AS THE APPEAL WAS PRESENTED BY THE ASSESSEE BEFORE THE LD.CIT(A) IN TIME, THE ORDER OF THE LD .CIT(A) NEEDS TO BE REVERSED AND THE MATTER BE RESTORED BACK TO HIS FIL E FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS. I.T.A.NO. 178/2012 :- 4 -: 6. THE LD. DR DID NOT CONTROVERT THE ABOVE SUBMISSIONS OF THE LD. A.R OF THE ASSESSEE. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSIN G THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD, WE FIND THAT THE LD.CIT(A) HAS TAKEN THE DATE 20. 12.2010 AS THE DATE OF RECEIPT OF THE IMPUGNED ORDER OF THE ASSESSING O FFICER PASSED U/S 154 OF THE ACT BY THE ASSESSEE IN CALCULATING THE LIMITATION PERIOD FOR PRESENTING THE APPEAL BEFORE THE LD.CIT(A). THE ASSESSEE HAS SUCCESSFULLY DEMONSTRATED BEFORE US THAT THE IMPUGN ED ORDER OF THE ASSESSING OFFICER U/S 154 OF THE ACT WAS RECEIVED BY THE ASSESSEE ON 4.4.2011 AND THE APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD.CIT(A) ON 26.4.2011 WHICH WAS WITHIN 22 DAYS OF THE RECEIPT OF THE IMPUGNED ORDER. THUS, THE APPEAL FILED BY THE ASS ESSEE WAS WITHIN THE PERIOD OF LIMITATION. THE LD. DR HAS NOT CONTR OVERTED THIS FACTUAL POSITION. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMAND THE MA TTER BACK TO HIS FILE FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO BOT H THE PARTIES. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A.NO. 178/2012 :- 5 -: 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20- 04-2012. SD/- SD/- (VIKAS AWASTHY) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 20 TH APRIL, 2012 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR