Shri Malay A. Shah, Ahmedabad V. The Income Tax Officer, Ward-5(3)(1), Ahmedabad

ITA 183/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8140 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.183/AHD/2017 ( / ASSESSMENT YEAR : 2013-14) MALAY A. SHAH ARPAN OPP LITTLE FLOWER SCHOOL BHATTA, PALDI AHMEDABAD 380 007 / VS. THE INCOME TAX OFFICER WARD-5(3)(1) AHMEDABAD-380 009 ' ./ ./ PAN/GIR NO. : AFBPS 2217 R ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : -NONE- &''%)( / RESPONDENT BY : SHRI RAJESH MEENA, SR.DR *+), / DATE OF HEARING 06/06/2018 -./0), / DATE OF PRONOUNCEMENT 11 / 06 /2018 / O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN PREFERRED BEFORE US BY THE ASSESSEE AGAINST THE COMMISSIONER OF INCOME TAX(APPEALS), AHMEDABAD-5 [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2013-14 ARISING OUT OF THE ASSESSMENT ORDER DATED 18.01.201 6 PASSED BY THE INCOME TAX OFFICER, WARD-5(3)(1), AHM EDABAD. 2. NONE APPEARED ON BEHALF OF ASSESSEE-APPELLANT. HOWEVER, AN ADJOURNMENT APPLICATION DATED 04.06.2018 WAS FILED SEEKING TIME ON BEHALF OF THE ASSESSEE WHICH IS DISMISSED DEVOID OF ANY MERIT. WE PROCEED THE MA TTER TO DECIDE AFTER HEARING THE LD.DR. ITA NO.183/AHD/ 2017 MALAY A. SHAH VS. ITO ASST.YEAR 2013-14 - 2 - 3. AGAINST THE ORDER OF ADDITION OF RS.1,54,35 7/- ON THE GROUND OF NON-PAYMENT OF TDS U/S.194A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND DISALLOWANCE OF RS.52,798/- ON ACCOUNT OF EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN TOTAL INCOME U/S.14A OF THE ACT BY THE ASSESSING OF FICER (AO), AN APPEAL HAS BEEN PREFERRED BY THE ASSESSEE BEFORE THE LD.CIT(A) WHO IN TURN DISMISSED THE APPEAL AS FOUND NON EST REJECTING THE GROUND FOR CONDONATION OF DEL AY IN FILING SUCH APPEAL BY THE ASSESSEE. 3.1. REGARDING CONDONATION OF DELAY, THE ASSESSEE D URING THE COURSE OF APPELLATE PROCEEDINGS FILED A LETTER ON 01.12.2016, RELEVANT PORTION IS NARRATED HEREINBELOW : THE ABOVE ASSESSEE HAS RECEIVED THE ASST. ORDER ON 29 TH FEB.2016 FOR A.Y. 2013-14 AGAINST WHICH AN APPEAL WAS FILED BEFORE YOUR GOODS ELF ON 23 RD MARCH 2016 I.E. WITHIN THE TIME LIMIT AS PER LAW. HOWEVER, THE CBDT HAS A MENDED THE RULE 45 OF THE INCOME TAX RULES, 1962, MANDATES COMPULSORY E-FILING OF AP PEALS BEFORE COMMISSIONER OF INCOME TAX W.E.F.1.3.2016 IN RESPECT OF PERSONS WHO ARE REQUIRED TO FURNISH THE RETURN OF INCOME ELECTRONICALLY. THEREAFTER CONSIDERING THE DIFFICULTIES OF THE APPELLANT, THE TIME WAS EXTENDED UPTO 15.6.2016 IF SUCH APPEAL IS FILED LATE SHOULD BE TREATED THE APPEAL FILED WITHIN TIME. IN THIS CASE, THE PAPER APPEAL WAS FILED ON 23.3.20 16 IN TIME BUT THE E-FILING SHOULD BE MADE ON OR BEFORE 15 TH JUNE 2016, HOWEVER THE APPEAL WAS FILED ON 18.10.2 016 FOR WHICH THE REASONS ARE AS UNDER. (1) SHRI BIHARI BSHAH THE PARTNER OF BIHARI SHAH & CO. IS LOOKING AFTER THE APPELLATE WORK OF THE FIRM. BUT HE WAS NOT AVAILABLE ON ACCO UNT OF DEATH OF HIS ELDER BROTHER SHRI CHINILAL B.SHAH ON 28.05.2016 AND HE WAS BUSY WITH THE CEREMONIAL ACTIVITY DURING 15 DAYS AND SO HE HAS FAILED TO FURNISH THE APPEAL ON OR BEFORE 15 TH JUNE 2016. (2) FURTHER WE WOULD LIKE TO DRAW YOUR KIND ATTENTION T O THE FOLLOWING PARAGRAPH WHICH IS AS UNDER. THE COMMISSIONER OF INCOME TAX (APPEALS) MAY ADMIT BELATED APPLICATION ON SUFFICIENT CAUSE BEING SHOWN. APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL, GIVING THE REASONS FOR THE DELAY, ALONG WITH NECESSARY EVIDENC ES SHOULD BE FILED WITH FORM NO.35 ITA NO.183/AHD/ 2017 MALAY A. SHAH VS. ITO ASST.YEAR 2013-14 - 3 - (I.E. FORM OF APPEAL). THE COMMISSIONER OF INCOME TAX (APPEALS) CAN CONDONE THE DELAY IN FILING THE APPEAL IF GENUINE REASON EXISTS FOR D ELAY. IN VIEW OF THE ABOVE AND LOOKING TO THE GENUINE REA SON, YOUR GOODSELF IS HEREBY REQUESTED TO KINDLY CONDONE THE DELAY AND OBLIGE. 3.2 IN RESPONSE TO THE SAID EXPLANATION GIVEN BY T HE ASSESSEE FOR CONDONATION OF DELAY, THE LD.CIT(A) OBSERVED AS FOLLOWS:- THE CBDTG VIDE ITS CIRCULAR NO.20/2016 DATED 26.05 .2016 HAS EXTENDED THE WINDOW FOR FILING E-APPEALS WHO COULD NOT SUCCESSFULLY E-F ILE THEIR APPEALS PREVIOUSLY AND HAD FILED PAPER APPEALS AND ACCORDING TO THE AFORESAID CIRCULAR THE APPELLANT HAD TO FILE THE E-APPEAL IN ACCORDANCE WITH AMENDED RULE 45 BEFORE THE EXTENDED PERIOD I.E.15.06.2016. THE REASONS FOR NOT FILING THE APPEAL ELECTRONICALL Y GIVEN BY THE APPELLANT ARE GENERAL IN NATURE. THEREFORE PAPER APPEAL FILED IN THIS OFFIC E ON 23.03.2016 AND E-FILED APPEAL ON 18.10.2016 ARE FOUND NON-EST IN VIEW OF THE PROVISI ONS OF LAW DISCUSSED ABOVE. IN OTHER WORDS, THE PAPER RETURN FILED IS TREATED AS GOOD AS THAT NO SUCH APPEAL HAS BEEN FILED BY THE APPELLANT. THEREFORE, THE APPEAL IS DISMISSED AS FOUND NON-EST AND NOT ENTERTAINED. 4. IN THE WRITTEN SUBMISSION, THE ASSESSEE HAS EXPL AINED THE REASON FOR LATE FILING OF THE APPEAL BEFORE THE LD.CIT(A) AND PLAYED FOR RECO NSIDERATION OF THE ORDER BY THE LD.CIT(A) UPON ADMITTING THE APPEAL AND GIVING A PR OPER OPPORTUNITY OF HEARING TO THE ASSESSEE. HOWEVER, THE LD.DR HAS NOT RAISED ANY OB JECTION TO THIS. 5. WE HAVE HEARD THE LD.DR AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE FIND THAT TO MEET THE ENDS OF JUSTICE AND FAIR P LAY, A PROPER OPPORTUNITY OF HEARING IS REQUIRED TO BE GIVEN TO THE ASSESSEE. WE, THEREFOR E, TAKING INTO CONSIDERATION THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, RESTORE THE MA TTER TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION UPON HIM TO ADMIT THE APPEAL PREFERRED BY THE ASSESSEE AND TO DECIDE THE SAME ON MERIT AFRESH AFTER GIVING A REASONABLE AND PROP ER OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IT IS NEEDLESS TO MENTION THAT THE ASSESS EE SHOULD CO-OPERATE IN THE PROCEEDINGS AS AND WHEN CALLED UPON BY THE LD.AO. ITA NO.183/AHD/ 2017 MALAY A. SHAH VS. ITO ASST.YEAR 2013-14 - 4 - 6. IN THE RESULT, THE APPEAL PREFERRED BY THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 11 / 06 /2018 SD/- SD/- ( ) ( ) ( WASEEM AHMED ) ( MS. MADHUMI TA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/ 06 /2018 2,..*,.*../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 34 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A)-AHMEDABAD-5 5. 89:&*4 , ,40 , 3 / DR, ITAT, AHMEDABAD 6. :;<=+ / GUARD FILE. / BY ORDER, '8& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..6.6.18 (DICTATION-PAD 6-PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.6.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.11.6.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.6.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER