Sarkar Overseas Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-8(1), Ahmedabad

ITA 1813/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6904 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: R K JINDAL
• Keywords: Search and seizure; Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI D.K.TYAGI, HONBLE JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, HONBLE ACCOUNTANT MEMBER ITA NO.1813-1814/AHD/2010 ASSESSMENT YEARS:2004-05 & 2005-06 DATE OF HEARING1.4.11 DRAFTED:5.5.11 SAKAR OVERSEAS PVT. LTD., 25, VRUNDAVAN TENAMENT, CHANKHEDA, AHMEDABAD PAN NO.AAGCS7772J V/S . INCOME TAX OFFICER, WARD-8(1), AHMEDABAD (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI R.K. JINDAL, AR REVENUE BY:- SHRI SHELLEY JINDAL, DR O R D E R PER D.K.TYAGI, JUDICIAL MEMBER:- THESE TWO ARE ASSESSEES APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS), XIV, AHMEDABAD IN APPEAL NO. C IT(A) XIVW.8(1)/143, 359/2007-08 BY DIFFERENT DATE 20-08-2007 AND 21-10- 2008 FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06. 2. THE APPEAL FOR ASSESSMENT YEAR 2004-05 IS TIME-B ARRED BY 932 DAYS AND THE APPEAL FOR THE ASSESSMENT YEAR 2005-06 IS B ARRED BY 521 DAYS. THE ASSESSEE HAS FILED A CONDONATION PETITION, WHICH RE ADS AS UNDER:- FROM, SAKAR OVERSEAS PVT. LTD. 25, VRUNDAVAN TENAMENT, CHANDKHEDA, AHMEDABAD DATED : 29/04/2010 ITA NO.1813-14/AHD/2010 A.YS 04-05 & 05-06 SKAR OVERSEAS PVT. LTD. V. ITO WD-8(1) ABD PAGE 2 TO INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SUBJECT: CONDONATION OF DELAY IN FILING OF APPEAL F OR THE ASSESSMENT YEAR 2004-05, AGAINST CIT(A) ORDER DATED 21/10/2008 AGAINST THE ASSESSING OFFICER'S U/S. 144 THE SAKAR OVERSEAS PVT. LTD., IS A PVT. LTD COMPANY DIRECTOR SHRI ARVIND TRIVEDI WHO WAS KIDNAPPED BY THE MR. JIVRAJ DESAI THEREAFTER SEVERAL FIRS WERE LODGED AGAINST ARVIND TRIVEDI. DU E TO THE LONG LASTING LITIGATION INVOLVING POLICE INVESTIGATION A ND COURT PROCEDURE, ARVIND TRIVEDI WAS UNABLE TO ATTEND REGULAR ASSESSM ENT PROCEEDINGS. AND SUBSEQUENT FORMALITIES FOR FILLING APPEAL AGAIN ST THE EXPARTY ORDER OF THE CIT(A). EVEN ARVIND TRIVEDI WAS UNABLE TO ATTEN D HIS CHARTERED ACCOUNTANTS OFFICE FOR FINALIZATION OF APPEAL AGAI NST THE IMPUGNED ORDER. WHICH HAS CAUSED DELAY IN FILING APPEAL. WE REQUEST YOUR HONOUR TO KINDLY CONDONE THE DELAY IN THE FILING OF APPEAL AND OBLIGE. THE OTHER CIRCUMSTANCE AND EVIDE NCES THOSE WILL BE NARRATED AT THE TIME OF CONSIDERATION OF DELAY APPL ICATION. PENALTY. GRANT A HEARING AND OBLIGE. THANKING YOU, YOURS TRULY, FOR, SAKAR OVERSEAS PVT. LTD. SD/-A.TRIVEDI ENCL. BUNCH OF 20, PAGES REGARDING FIR AND REPORT TO COURT. THIS CONDONATION PETITION IS SUPPORTED BY NOTICE/SU MMONS ISSUED BY CBI AND AN AFFIDAVIT SWORN BY THE DIRECTOR OF THE ASSESSEE- FIRM, SHRI ARVIND TRIVEDI, WHICH READS AS UNDER:- AFFIDAVIT I ARVIND ASHWANIKUMAR TRIVEDI, AGED 43 YEARS, RESID ING AT 25, VRUNDAVAN TENAMENTS, CHANDKHEDA, AHMEDABAD 382424 . AFFIRM THAT 1) I AM THE DIRECTOR OF M/S. SAKAR OVERSEAS PVT LTD , A PRIVATE COMPANY INCORPORATED IN 1997 AND THE OVERALL AFFAIR S OF THE COMPANY IS LOOKED AFTER BY ME BESIDES MATTERS RELAT ING TO INCOME TAX MATTERS, I WAS HANDLING ENTIRE BUSINESS OF THE COMPANY AND MY ITA NO.1813-14/AHD/2010 A.YS 04-05 & 05-06 SKAR OVERSEAS PVT. LTD. V. ITO WD-8(1) ABD PAGE 3 WIFE NAMELY MRS. DIPTI TRIVEDI WAS DIRECTOR IN THE COMPANY AS THERE HAS TO BE AT LEAST TWO DIRECTORS IN A PRIVATE LIMIT ED COMPANY. 2) THE COMPANY WAS DOING GOOD BUSINESS TILL JULY 20 05 WHEN, THE MARKET OF THE VARIOUS AGRO BASED PRODUCT CRASHED AN D WHICH RESULTED IN DISPUTE WITH OTHER BUSINESS ASSOCIATES NAMELY M/S R J D IMPEXPVT LTD TO WHOM WE WERE SUPPLYING MATERIAL AS WELL AS HELPING THEM TO PROMOTE THEM IN INTERNATIONAL MARKE T. 3) THE SAID RJD IMPEX PEOPLE STARTED THREATENING US SOMEWHERE IN THE MONTH OF APRIL 2005 AS THE MARKET WAS CRASHED A ND THE EXPORT PAYMENTS WERE DELAYED DUE TO THE MARKET CONDITION. THIS LEAD TO A SITUATION IN THE LAST WEEK OF JUNE 2005 THAT IT WAS UNABLE FOR US TO DO BUSINESS PEACEFULLY. IT ALSO CREATED A SITUATION WH ERE WE CAN NOT THINK NOR DO ANYTHING EXCEPT ATTENDING TO ABUSE OF THESE RJD PEOPLE. THESE PEOPLE ARE HEAVY HEADED AND ARE LIKE MAFIAS. NOT A SINGLE DAY WAS THERE WHEN THEY WERE NOT IN MY OFFIC E GIVING VARIOUS THREATS. WE TRIED TO RESOLVE THE ISSUE BY CHASING T HE BUYERS FOR MAKING PAYMENTS TO THE EXPORTER WHICH ALSO SHOWED P OSITIVE RESULT AND IN SPITE OF TREMENDOUS RECESSION IN THE INTERNA TIONAL MARKET IN THE F.Y. 2005-06, NEARLY ALL PAYMENTS ERE REALIZED BY THIS RJD IMPEX PVT. LTD BY THE END OF DECEMBER 2005. ONCE ALMOST ALL PAYMENTS HAVE REALIZED, THESE PEOPLE STARTED THREAT ENING US AND HUMILIATING US FOR ARBITRARY LOSSES THEY HAVE SUFFE RED AND/OR PROBABLE PROFIT THEY WOULD HAVE EARNED IF THEY HAD INVESTED THIS MONEY IN LAND OR SOME REAL ESTATE AS THE REAL ESTATE MARKET IN 2005-06 ONWARDS WAS BOOM. IN MARCH, ON 11 TH MARCH 2006, THEY KIDNAPPED MYSELF AND ONE OF MY FRIEND AND BUSINESS ASSOCIATE MR YOGESH BAROT AND FORCED US BY EMPLOYING INHUMAN THE TECHNI QUES TO SIGN BLANK STAMP PAPERS, NOTARY REGISTERS, VOUCHERS, SOM E DASTAVAGES (DOCUMENTS RELATING TO PROPERTY), SOME BLANK CHEQUE S ETC. (REFER PAGES 1 TO 98 OF MY SEPARATE PAPER BOOK ENCLOSED HE REWITH. 4) SINCE 11 TH MARCH 2006, A SERIES OF LITIGATION IN THE FORM OF COMPLAINS FROM BOTH SIDE I.E. FROM OUR SIDE AS WELL AS FROM R JD PEOPLE SIDE STARTED AND SINCE RJD PEOPLE HAD VERY STRONG POLITI CAL CONNECTION, MONEY POWER AND MUSSEL POWER, THEY WERE ABLE TO FIL E THREE FIRS LODGE AGAINST US BY RJD PEOPLE. MY ADVOCATE ADVISED ME THAT TO AVAIL LEGAL SHIELD IN THIS BATTLE, YOU HAVE TO REMA IN UNDERGROUND TILL YOU GET SHIELD IN THE FORM OF ANTICIPATORY BAIL. MY BAIL APPLICATION AT VARIOUS STAGES WERE STRETCHED AND AT LAST REJECTED AND IN THE MEAN TIME, POLICE ALSO MADE PRIMARY REPORT IN MIDDLE OF 2007 THAT THERE ARE NO SERIOUS CHARGES AS ALLEGED IN FIRS AND SUBMITTE D THEIR REPORT TO TRIAL COURT. SUPREME COURT ALSO DIRECTED ME TO SURR ENDER BEFORE THE TRIAL COURT IN THE MONTH OF FEBRUARY 2008 AND ACCOR DINGLY I SURRENDERED BEFORE THE TRIAL COURT ON 20 TH FEBRUARY AND GOT RELEASED ITA NO.1813-14/AHD/2010 A.YS 04-05 & 05-06 SKAR OVERSEAS PVT. LTD. V. ITO WD-8(1) ABD PAGE 4 ON TEMPORARY BAIL AND ON 21 ST FEBRUARY 2008, I GOT RELEASED ON PERMANENT BAIL ONCE COURT HEARD INVESTIGATING OFFIC ER. THESE COMPLAINS COMPELLED ME TO REMAIN OUT OF MY HOME FRO M 11/03/2006 TO FEBRUARY, 2008. (REFER PAGES 1 TO 98 OF MY SEPAR ATE PAPER BOOK ENCLOSED HEREWITH. 5) THERE WAS CBI RAID ON MY RESIDENCE AND OFFICE PR EMISES ON 25 TH JANUARY 2008 AFTER COMPLAIN OF VIJAYA BANK (BANKER OF MY COMPANY). THIS LEAD TO SERIES OF INTERROGATION OF I NVESTIGATING OFFICER. THIS ALSO FOLLOWED BY ANOTHER TWO COMPLAINS BEFORE CBI BY ANOTHER BANKS WHICH ALSO INVOLVED TWO MORE RAID BY CBI DURI NG THE YEAR 2008 AND SUBSEQUENT QUESTIONING OF ME BY CBI OFFICI AL. VARIOUS PANCH NAMA OF THE CONCERNED PREMISES SITUATED AT ME HSANA WITH CBI OFFICIAL, BUILDER, VALUER, BANK OFFICIALS ETC T ILL 31/12/2009. WHERE I WAS REQUIRED TO GET BAIL IN ALL THE CASES WHICH I S STILL NOT COMPLETED IN ONE CASE. FOR TWO CASES, BAIL FORMALITIES WERE C OMPLETED IN THE MONTH OF FEBRUARY 2011. THE CBI FILED THREE CHARGE SHEET I.E. (1) FILING NO CBI-SPCC/21/2009 ON DATED 23/01/2009, (2) FILING NO CBI- SPCC/15/2009 ON DATED 18/09/2009, (3) FILING NO CBI- SPCC/44/2010 ON DATED 31/12/2009, BEFORE THE CBI SP ECIAL COURT. (REFER PAGES 99 TO 125 OF MY SEPARATE PAPER BOOK EN CLOSED HEREWITH.) 6) THE CIT APPEAL PASSED THE ORDER RELEVANT TO A.Y 2004-05 ON 20/08/2007 AND WE HAVE RECEIVED THE ORDER ON 07/09/ 2007. AGAINST THIS ORDER WE HAVE FILED THE APPEAL BEFORE THE ITAT AHMEDABAD ON 26/05/2010. THEREFORE, THERE IS A DELAY OF 932 DAYS . 7) THE CIT APPEAL PASSED THE ORDER RELEVANT TO A.Y 2005-06 ON 21/10/2008 AND ASSUMING WE HAVE RECEIVED THE ORDER ON 21/10/2008. AGAINST THIS ORDER WE HAVE FIELD THE AP PEAL BEFORE THE ITAT AHMEDABAD ON 26/05/2010. THEREFORE, THERE IS A DELAY OF 521 DAYS. BUT IN THE ITAT ACKNOWLEDGEMENT CUM NOTICE TH E DELAY IS MENTIONED 816 DAYS. 8) DURING THE ASSESSMENT PROCEEDINGS RELEVANT TO BO TH A.Y. 2004-05 & 2005-06 MYSELF WAS NOT AVAILABLE IN THE STATE. THE SAME FACTS WERE INFORM TO THE A.O ACCORDINGLY A FINDING IN THE A.O S ORDER, ON PAGE NO 3 UNDER THE HEADING ACTION U/S 133A, THAT THE DIREC TOR SHRI ARVIND TRIVEDI IS NOT ATTENDING THE CASE AS FIR LODGED AGA INST HIM IS PENDING, IS LYING. 9) I URGED THE HONOURABLE ITAT AHMEDABAD C BENCH PENALTY. CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE H ONBLE ITAT AHMEDABAD I PROMISE SIR I WILL NOT COMMIT THIS TYPE OF MISTAKE IN FUTURE. ITA NO.1813-14/AHD/2010 A.YS 04-05 & 05-06 SKAR OVERSEAS PVT. LTD. V. ITO WD-8(1) ABD PAGE 5 FOR, SAKAR OVERSEAS PVT. LTD. SD/- ARVINDBHAI TRIVEDI (ARVINDBHAI TRIVEDI) VERIFICATION I ARVINDBHAI TRIVEDI, AGED ADULT, RESIDING AT 25, VRUNDAVAN TENAMENTS, CHANDKHEDA, AHMEDABAD-382424 AFFIRMS THA T AS STATED ABOVE IN 1 TO 9 ARE CORRECT & TRUE TO THE BEST OF M Y KNOWLEDGE & BELIEF. FOR, SAKAR OVERSEAS PVT. LTD SD/- ARVINDBHAI TRIVEDI) (ARVINDBHAI TRIVEDI) 3. AFTER HEARING BOTH THE PARTIES ON THE CONDONATIO N OF DELAY FOR FILING OF APPEAL AND GOING THROUGH THE PAPER BOOK FILED BY AS SESSEE AND AFFIDAVIT OF THE ASSESSEE WE FIND THAT ASSESSEE RECEIVED ORDER OF LD . CIT(A) FOR THE ASSESSMENT YEARS 2004-05 ON 07-09-2007, THUS HE WAS TO FILE APPEAL BEFORE TRIBUNAL BY 06-09-2007 BUT ASSESSEE HAS FILED APPEA L ON 26-05-2010. WE FURTHER FIND THAT DURING THIS PERIOD HE WAS ON RUN TO ESCAPE ARREST BY THE POLICE AND CBI AS IS CLEAR FROM THE AFFIDAVIT OF SHRI ARVI NDBHAI TRIVEDI, THE DIRECTOR THE CONTENTS OF WHICH WERE NOT CONTROVERTED BY REVE NUE AT THE TIME OF HEARING BEFORE US. WHEN THE ASSESSEE WAS GRANTED ANTICIPATO RY BAIL IN TWO CASES FILED BY CBI ON 07-05-2010 HE GOT SOME RELIEF AND WAS ABL E TO PREPARE APPEAL TO BE FILED BEFORE TRIBUNAL AND EVENTUALLY APPEALS WER E FILED FOR BOTH THE YEARS ON 26-05-2010. IN THE LIGHT OF THESE UNDISPUTED AND PECULIAR FACTS OF THIS CASE, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING APPEAL BEFORE TRIBUNAL IN TIME AND THEREFORE THE DELAY IN FILING APPEAL IS HEREBY CONDONED FOR BOTH THE YEARS . 4. NOW COMING TO GROUND TAKEN BY ASSESSEE BEFORE US , WE FIND THAT BEFORE ASSESSING OFFICER AS WELL AS LD. CIT(A) ASSESSEE CO ULD NOT PRESENT ITS CASE AS HE WAS ON RUN TO ESCAPE ARREST BY THE POLICE AND CBI AND THEREFORE BOTH THE AUTHORITIES BELOW HAVE PASSED EX PARTE ORDERS. WE THEREFORE IN THE INTEREST OF NATURAL JUSTICE AND FAIR PLAY ARE OF TH E CONSIDERED VIEW THAT ITA NO.1813-14/AHD/2010 A.YS 04-05 & 05-06 SKAR OVERSEAS PVT. LTD. V. ITO WD-8(1) ABD PAGE 6 ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT H IS CASE BEFORE THE REVENUE AUTHORITY AND FOR THIS PURPOSE THE MATTER I S RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER P ROVIDING REASONABLE OPPORTUNITIES OF BEING HEARD TO ASSESSEE. THE ASSES SEE IS ALSO DIRECTED TO COOPERATE WITH THE ASSESSMENT PROCEEDINGS THIS TIME . THE GROUNDS OF ASSESSEES APPEALS ARE ALLOWED FOR STATISTICAL PURP OSES. 5. IN THE RESULT, BOTH THE APPEAL OF ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08/04/2011 SD/- SD/- (D.C.AGRAWAL) (D.K. TYA GI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 08/04/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-XIV, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD