Sri V Raghavendra Deekshith, Bengaluru V. Income Tax Officer, Ward-2(2)(4), Bengalore

ITA 1801/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7712 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VENKATESH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 18 01 / BANG/201 8 ASSESSMENT YEAR : 20 1 2 - 1 3 SRI V. RAGHAVENDRA DEEKSHITH, PROP: ADITHYA AGENCIES, NO. 52/C, VINOD COMPLEX, 3 RD CROSS, INDUSTRIAL SUBURB, YESHWANTHPUR, BANGALORE 560 022. PAN: ADDPD9322N VS. THE INCOME TAX OFFICER, WARD 2 (2) (4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, A DVOCATE RESPONDENT BY : SHRI S. VENKATESH, JCIT (DR) DATE OF HEARING : 0 3 .0 7 .2018 DATE OF PRONOUNCEMENT : 13 .0 7 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT (A)-6, BANGALORE DATED 28.02.2018FOR ASSESS MENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEEARE AS UNDER. 1. THE ORDER OF THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY AND WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUM STANCES OF THE CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED TO A TOTAL INCOME OF RS.17,66,170/- AS AGAINST THE TOTAL INCOME RETUR NED BY THE APPELLANT OF RS. 10,70,890/- FOR THE IMPUGNED ASSESSMENT YEAR 2012-13 ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL ON ACCOUNT OF DE LAY ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW IN NOT ADJUDICATING THE GROUNDS RAISED BY THE APPELLAN T ON THE MERITS OF ITA NO.1801/BANG/2018 PAGE 2 OF 5 THE MATTER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION OF RS.6,95,275/- IN RESPECT OF CREDIT NOTES OF THE FIN ANCIAL YEAR 2010-11 RECEIVED DURING THE FINANCIAL YEAR 2011-12 AS INCOM E ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CREDIT NOTES RECEIVED DURING THE CURRENT ASSESSMENT YEAR WERE AC COUNTED AND OFFERED TO TAX DURING THE PREVIOUS YEAR, WAS IN THE NATURE OF TRADE DEBTORS AND MAKING AN ADDITION AGAIN IN THE CURRENT YEAR AMOUNTS TO DOUBLE TAXATION ON THE FACTS AND CIRCUMSTANCES OF T HE CASE. 7. THE APPELLANT DENIES THE LIABILITY TO PAY INTERE ST UNDER SECTION 234B AND 234C OF THE ACT IN VIEW OF THE FACT THAT THERE IS NO LIABILITY TO ADDITIONAL TAX AS DETERMINED BY THE LEARNED ASSESSI NG OFFICER. WITHOUT PREJUDICE THE RATE, PERIOD AND ON WHAT QUANTUM THE INTEREST HAS BEEN LEVIED ARE NOT DISCERNABLE FROM THE ORDER AND HENCE DESERVES TO BE CANCELLED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 9. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED AND APPROPRIATE RELIEF BE GRANTED IN THE INTEREST OF JUSTICE AND EQUITY. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THER E WAS A DELAY OF 88 DAYS IN FILING THE APPEAL BEFORE THE CIT (A) AND THE ASSESS EE HAS MOVED AN APPLICATION BEFORE CIT (A) FOR CONDONATION OF DELAY, COPY OF WH ICH IS AVAILABLE ON PAGES 27 TO 29 OF APPEAL MEMO. HE SUBMITTED THAT THIS WAS T HE SUBMISSION OF ASSESSEE BEFORE CIT (A) THAT INITIALLY THE ASSESSEE WAS UNDE R THE IMPRESSION THAT THE ASSESSEE HAS NO REMEDY BY WAY OF FILING THE APPEAL BEFORE CIT (A) BECAUSE AS PER THE ASSESSMENT ORDER, THE ADDITION IS MADE WITH THE CONSENT OF THE LD. AR OF ASSESSEE BUT LATER ON, THE ASSESSEE WAS ADVISED TO FILE APPEAL BEFORE CIT (A) AND BECAUSE OF THIS LACK OF PROPER LEGAL ADVICE, TH ERE WAS DELAY IN FILING THE APPEAL BEFORE CIT (A). BUT THE CIT (A) HAS NOT CON DONED THE DELAY AND DISMISSED THE APPEAL AS UNADMITTED. HE SUBMITTED T HAT IN THE INTEREST OF JUSTICE, THE DELAY IN FILING THE APPEAL SHOULD BE C ONDONED AND THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR DECISION ON MERIT. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). ITA NO.1801/BANG/2018 PAGE 3 OF 5 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN PARA 2 OF THE ORDER OF CIT(A), THE CIT(A) HAS REPRODUCED THE CONTENTS OF T HE APPLICATIONS MADE BY THE ASSESSEE FOR CONDONATION OF DELAY AND IN PARA 3, LD . CIT(A) HAS DECIDED THE ISSUE REGARDING THE CONDONATION OF DELAY. HENCE FO R THE SAKE OF READY REFERENCE, I REPRODUCE PARAS 2 AND 3 FROM THE ORDER OF CIT(A). THE SAME ARE AS UNDER. 2. THE APPELLANT FILED AN APPLICATION FOR CONDONATI ON OF DELAY DATED 21/07/2015. RELEVANT PORTION OF THE SAME IS REPRODU CED AS UNDER:- 1. AN ORDER UNDER SECTION 143(3) OF THE INCOME-TAX ACT,1961 WAS PASSED ON 18.03.2015 IN THE CASE OF THE APPELLA NT BY THE LEARNED INCOME TAX OFFICER, WARD-2(2)(4), BANGALORE (FOR SHORT 'THE AO) RECEIVED BY THE APPELLANT ON 25.03.2015. 2. THE APPELLANT HAS APPROACHED THE PRESENT COUNSEL FOR ADVICE ON TAX MATTERS AND HAS PRODUCED DOCUMENTS TO ENABLE A PROPER REPRESENTATION BEFORE THE HON'BLE COMMISSIONER OF I NCOME TAX (APPEALS) 5, BANGALORE. 3. THE APPELLANT WAS GIVEN AN ADVICE BY THE PRESENT COUNSEL, THAT HE HAS A VERY GOOD AND PRIMA FACIE CASE ON MER ITS OF THE MATTER, TO FILE AN APPEAL AGAINST THE ORDER OF THE LEARNED ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT B EFORE THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) 5, B ANGALORE ON 14.07.2015 AND ADVISED THE APPELLANT TO FILE AN APPEAL AGAINST THE ORDER PASSED BY THE LEARNED INCOME TAX OFFICER. 4. THE APPELLANT SUBMITS THAT IMMEDIATELY AFTER THE ADVICE WAS GIVEN BY THE PRESENT COUNSEL, WITHIN 4 DAYS THEREAF TER, ALL THE EFFORTS WERE MADE TO FILE THIS APPEAL CHALLENGING T HE ORDER PASSED BY THE LEARNED INCOME TAX OFFICER BEFORE THI S HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) ON 20.07.2015. 5. IN VIEW OF THE ABOVE, THE APPELLANT COULD NOT FI LE THE APPEAL BEFORE THIS HON'BLE COMMISSIONER OF INCOME TAX (APP EALS) WELL IN TIME AND BY TILE TIME THE APPELLANT SOUGHT THE P RESENT COUNSEL'S ADVICE AND FILED THE APPEAL, THERE AROSE 87 DAYS DELAY IN FILING THIS APPEAL BEFORE THIS HON'BLE COMMISSIO NER OF INCOME TAX (APPEALS). 6. IT IS HUMBLY PRAYED THAT THIS HON'BLE COMMISSION ER OF INCOME TAX (APPEALS) - 5, BANGALORE TAKE A LENIENT AND COM PASSIONATE VIEW AND CONDONE THE DELAY OF 83 DAYS IN FILING THE PRESENT APPEAL AGAINST THE ORDER OF THE LEARNED INCOME TAX OFFICER, WARD 2(2)(4), BANGALORE PASSED UNDER SECTION 143( 3) OF THE ACT BEFORE THIS HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) ITA NO.1801/BANG/2018 PAGE 4 OF 5 AND HEAR THE SAME ON MERITS FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE. 7. IT IS HUMBLY SUBMITTED THAT IF THIS APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL IS NOT ALLOWED, THE A PPELLANT WOULD BE PUT TO GREAT HARDSHIP AND IRREPARABLE INJURY AND ON THE OTHER HAND NO HAEDSHIP OR INJURY WOULD BE CAUSED TO THE R ESPONDENT IF THIS APPLICATION OF CONDONATION OF DELAY IS ALLO WED. RELIANCE IS PLACED ON THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST.KATIJI AND O THERS (1987) 1671TR 471 AND ALSO IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD., VS SMT. NIRMALA DEVI AND OTHERS 118 ITR 5 07. FURTHER THE APPELLANT RELIES ON ANOTHER DECISION OF THE HON'BLE APEX COURT IN THE CASE OF RADHA KRISHNA RAI VS. ALL AHABAD BANK & OTHERS [2000] 9 SUPREME COURT CASES 733. 3. IT IS NOTED THAT NO PLAUSIBLE REASON HAS BEEN AT TRIBUTED BY APPELLANT FOR DELAY IN FILING APPEAL. HE MERELY STATES THAT A PPEAL WAS FILED IMMEDIATELY ON BEING ADVISED TO DO SO BY HIS PRESEN T COUNSEL. HE HAS NOT EXPLAINED THE REASON & CAUSE AS TO WHAT PREVENT ED HIM FROM FILING APPEAL ON TIME. THEREFORE IN THE ABSENCE OF ANY PLA USIBLE AND VALID REASON FOR DELAY, THE SAID DELAY IS DIFFICULT TO BE CONDONED. HENCE, THE APPEAL IS DISMISSED BEING FILED LATE. 5. FROM THE ABOVE PARAS REPRODUCED FROM THE ORDER O F CIT (A), IT IS SEEN THAT IT WAS EXPLAINED BY THE ASSESSEE THAT THE DELAY IN FIL ING THE APPEAL HAS BEEN CAUSED DUE TO LACK OF PROPER PROFESSIONAL ADVICE. AS PER THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF COLLECTO R, LAND ACQUISITION VS. MST. KATIJI AND OTHERS AS REPORTED IN (1987) 167 IT R 471 ON WHICH RELIANCE HAS BEEN PLACED BY ASSESSEE AS PER THE APPLICATION FOR CONDONATION OF DELAY FILED BEFORE CIT (A) AND REPRODUCED BY CIT (A) IN H IS ORDER AND ALSO PRODUCED BY ME ABOVE, IT WAS HELD BY HONBLE APEX COURT IN T HIS CASE THAT SUFFICIENT CAUSE' FOR THE PURPOSE OF CONDONATION OF DELAY SHOU LD BE INTERPRETED WITH A VIEW TO DO EVEN-HANDED JUSTICE ON MERITS IN PREFERE NCE TO APPROACH WHICH SCUTTLES A DECISION ON MERITS. IT WAS ALSO HELD THA T THE POWER TO CONDONE DELAY IS CONFERRED WITH A VIEW TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO LITIGANTS BY DISPOSING OF THE CASES ON MERITS AND THERE IS NO WARRANT FOR ACCORDING A STEP-MOTHERLY TREATMENT WHEN THE 'STATE' IS THE APP LICANT PRAYING FOR CONDONATION OF DELAY . RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HONBLE APEX COURT, I HOLD THAT IN THE FACTS OF PRESENT CASE, TH E DELAY IN FILING THE APPEAL BEFORE CIT (A) SHOULD BE CONDONED AND HENCE, I COND ONE THE DELAY AND RESTORE ITA NO.1801/BANG/2018 PAGE 5 OF 5 THE MATTER BACK TO THE FILE OF CIT (A) FOR DECISION ON MERIT AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES . IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT O F THE CASE AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH JULY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.