Shri Punabhai Karamshibhai Ribadia Legal heir Manish P. Ribadia, Surat V. The Dy.CIT.,Circle-9, Surat

ITA 1935/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6092 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAIALASH DAN RATNOO
• Assessee Lawyers: M K PATEL
• Keywords: Condonation of delay; Ignorance of law

Judgement Text

ITA N O.1935/AHD/2013 ASSESSMENT YEAR: 2008 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH, SMC , AHMEDABAD [CORAM: PRAMOD KUMAR AM] ITA NO. 1935/AHD/2013 ASSESSMENT Y EAR : 2008 - 09 PUNNABHAI KARAMSHIBHAI RIBADIA ..... .......... .APPELLANT LEGAL HEIR: MANISH P RIBADIA 11, KOHINOOR SOCI ETY VARACHCHHA ROAD, SURAT 395 006 [PAN: ABAPR5135Q] VS. DY COMMISSIONER OF INCOME TAX CIRCLE 9, SURAT .. ......... RESPONDENT APPEARANCES BY: M K PATEL , FOR THE APPELLANT KAIALASH DAN RATNOO , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : 01.03 . 201 7 DATE OF PRONOUNCING THE ORDER : 28 .04. 2017 O R D E R 1. THIS APPEAL, FILED BY THE ASSESSEE, IS DIRECTED AGAINST LEARNED CIT(A) S ORDER DATED 8 TH MAY 2013 DISMISSING THE APPEAL AS TIME BARRED AND TH US UPHOLDING THE PENALTY OF RS 10,000 IMPOSED ON THE ASSESSEE UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2008 - 09. 2. GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN DISMISSING THE APPEAL AS TIME BARRED AND IN THUS CO NFIRMING THE IMPUGNED PENALTY OF RS 10,000 3. THE ASSESSEE BEFORE US IS, AS THE ASSESSMENT ORDER ITSELF STATES, A LABOURER IS DIAMOND INDUSTRY AND HAS EARNED AN INCOME OF RS 1,32,869. THE ONLY REASON AS TO WHY HE GOT INTO TROUBLE WITH THE TAX AUTHORITIES I S SALE OF HIS SMALL HOUSE. BE THAT AS IT MAY, THE ASSESSEE WAS CALLED BY THE ASSESSING OFFICER SEVERAL TIMES, BUT THE ASSESSEE DID NOT APPEAR. FINALLY, HE WAS CALLED UPON TO APPEAR BEFORE THE ASSESSING OFFICER ON 30 TH AUGUST 2011 AT 12.45 PM. THE ASSESSEE DID NOT APPEAR ON THAT DAY. IT WAS IN THIS BACKDROP THAT ON 30 TH AUGUST 2011 ITSELF, THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 271(1)(B) IMPOSING A PENALTY OF RS 10,000 ON THE ASSESSEE. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THE APPEAL WAS TIME BARRED BY 4 MONTHS AND THE CIT(A) DECLINED TO CONDONE THE DELAY REJECTING THE ASSESSEE S STAND THAT HE WAS NOT IMMEDIATELY AWARE OF THE REMEDIAL ITA N O.1935/AHD/2013 ASSESSMENT YEAR: 2008 - 09 PAGE 2 OF 3 MEASURES TO BE FOLLOWED AND THAT HE HAD GONE TO HIS NATIVE PLACE. THE CIT(A) NOTED THAT THE ASSESSEE IS A HABITUAL DEFAULTER, THAT HIS PAST CONDUCT HARDLY INSPIRES ANY FAITH IN THE ASSESSEE AND THAT IGNORANCE OF LAW IS NO EXCUSE. THE ASSESSEE IS AGGRIEVED AND IS IN FURTHER APPEAL BEFORE ME. 4. I HAVE HEARD THE RI VAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE LEGAL POSITION. 5. I FIND THAT THE ASSESSEE IS A SMALL TIME LABOURER AND, PARTICULARLY GIVEN THIS FACT, HIS APPLICATION FOR CONDONATION OF DELAY OUGHT TO HAVE BEEN CONSIDERED WITH A LITTLE MORE UNDERSTANDING AND COMPASSION. IT IS ALSO WRONG TO SAY THAT IGNORANCE OF LAW IS NO EXCUSE; IT IS AN EXCUSE LEGALLY ACCEPTABLE THOUGH NOT OF UNIVERSAL APPLICATION. WHILE ON THIS ASPECT OF THE MATTER, I MAY REFER TO THE FOLLOWING OBSERVATIONS MADE BY A DIVISION BENCH OF THIS TRIBUNAL, IN THE CASE OF SUDERSHAN GENERAL & AUTO FINANCE LTD VS CIT [(1997) 60 ITD 177 (DEL)] - SPEAKING THROUGH LATE SHRI B M KOTHARI AM, AS FOLLOWS : - THE CONTENTION OF THE REVENUE THAT IGNOR ANCE OF LAW IS NOT A VALID EXCUSE IS ALSO NOT VALID. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS CONFRONTED WITH THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF MOTILAL PADAMPAT SUGAR MILLS LTD. VS. STATE OF UTTAR PRADESH (1979) 118 ITR 326 (SC). HE COULD NOT GIVE ANY VALID EXPLANATION IN SUPPORT OF HIS CONTENTION THAT EVERYBODY IS SUPPOSED TO KNOW THE LAW AFTER GOING THROUGH THE SAID JUDGMENT. THE HON BLE SUPREME COURT IN THE AFORESAID CASE HAS, INTER ALIA, HELD AS UNDER AT PAGE 339 : 'MOREOVER, I T MUST BE REMEMBERED THAT THERE IS NO PRESUMPTION THAT EVERY PERSON KNOWS THE LAW. IT IS OFTEN SAID THAT EVERYONE IS PRESUMED TO KNOW THE LAW, BUT THAT IS NOT A CORRECT STATEMENT : THERE IS NO SUCH MAXIM KNOWN TO THE LAW. OVER A HUNDRED AND THIRTY YEARS AG E, MAULA, J. POINTED OUT IN MARTINDALE VS. FALKNER (1846) 2 CB 706 : 'THERE IS NO PRESUMPTION IN THIS COUNTRY THAT EVERY PERSON KNOWS THE LAW : IT WOULD BE CONTRARY TO COMMONSENSE AND REASON IF IT WERE SO'. SCRUTTON, L.J. ALSO ONCE SAID : 'IT IS IMPOSSIBLE TO KNOW ALL THE STATUTORY LAW, AND NOT VERY POSSIBLE TO KNOW ALL THE COMMON LAW'. BUT, IT WAS LORD ATKIN WHO, AS IN SO MANY OTHER SPHERES, PUT THE POINT IN ITS PROPER CONTEXT WHEN HE SAID IN EVANS V. BARTLAM (1937) AC 473 : '. THE FACT IS THAT THERE IS NO T AND NEVER HAS BEEN A PRESUMPTION THAT EVERY ONE KNOWS THE LAW. THERE IS THE RULE THAT IGNORANCE OF THE LAW DOES NOT EXCUSE, A MAXIM OF VERY DIFFERENT SCOPE AND APPLICATION.' THE IGNORANCE OF THE LAW MAY OR MAY NOT CONSTITUTE A VALID EXCUSE FOR JUSTIFYING NON - COMPLIANCE WITH A PROVISION OF STATUTE. IT WILL DEPEND UPON THE NATURE OF THE DEFAULT. IF IT IS MERELY A TECHNICAL OR VENIAL BREACH, NO PENALTY WOULD BE IMPOSABLE BECAUSE THE LEVY OF PENALTY UNDER ANY STATUTORY PROVISION NECESSARILY IMPLIES EXISTENCE OF SOME GUILTY INTENTION ON THE PART OF THE DEFAULTER OR THE OFFENDER. IN ORDER TO DETERMINE THE EXISTENCE OR ABSENCE OF ANY GUILTY INTENTION ON THE PART OF THE ASSESSEE, ONE WILL HAVE TO CONSIDER ALL THE SURROUNDING FACTS AND ITA N O.1935/AHD/2013 ASSESSMENT YEAR: 2008 - 09 PAGE 3 OF 3 CIRCUMSTANCES. WHETHER BY COM MITTING ANY DEFAULT OF NON - COMPLIANCE WITH A STATUTORY PROVISION OF LAW, AN ASSESSEE HAS DERIVED ANY BENEFIT, GAIN OR ADVANTAGE WHETHER BY SUCH A DEFAULT OR NON - COMPLIANCE THE ASSESSEE HAS DEFRAUDED THE REVENUE OR HAS CAUSED ANY LOSS TO THE REVENUE. THESE ARE SOME OF THE FACTORS WHICH WILL HAVE TO BE SERIOUSLY CONSIDERED BEFORE CONSIDERING THE FACT AS TO WHETHER THE IGNORANCE ON THE PART OF THE ASSESSEE 6. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, IN MY CONSIDERED VIEW, THE CIT(A) OUGHT TO HAVE CONDONE THE DELAY AND DECIDED THE MATTER ON MERITS. AS FOR THE MERITS, THE IMPUGNED PENALTY ORDER IS BAD IN LAW FOR THE SHORT REASON THAT THE PENALTY ORDER IS PASSED ON THE VERY DAY ON WHICH THE ASSESSEE COULD NOT ATTEND THE HEARING. OBVIOUSLY, THE ORDER WAS THUS PASSED WITHIN THE WORKING HOURS THAT DAY, AND THUS BEFORE THE DAY CAME TO AN END. IT IS BY NOW A SETTLED LEGAL POSITION THAT WHEN AN ASSESSING OFFICER FIXES THE HEARING ON A PARTICULAR DAY, HE CANNOT CONCLUDE THE MATTER BEFORE THE END OF THE DAY. ONE SHOULD ALSO NOT FORGET THE FACT THAT THE ASSESSEE IS LABOURER AND HE HAS GENUINE DIFFICULTIES, IN VIEW OF THE KIND OF WORK THAT HE IS ENGAGED IN, TO LEAVE THE WORKPLACE. HE IS STATED TO BE AT THE MERCY OF HIS EMPLOYER WHO WERE NOT AS KIND AND AS ACCOMMODATING TO PERMIT THE ASSESSEE TO ATTEND TO INCOME TAX PROCEEDINGS DURING THE WORKING HOURS. THIS EXPLANATION OF THE ASSESSEE CANNOT SIMPLY BE BRUSHED ASIDE. IN THE LIGHT OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND SOCIO ECONOMIC BAC KGROUND OF THE ASSESSEE, I DO NOT THINK IT WAS A FIT CASE FOR IMPOSITION OF PENALTY. I, THEREFORE, DELETE THE SAME. 7. IN THE RESULT, THE APPEAL IS ALLOWED PRONOUNCED IN THE OPEN COURT TODAY ON THE 28 TH DAY OF APRIL, 2017 SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 28 TH DAY OF APRIL , 2017 . PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD