TRIDNET MERCANTILE P. LTD, MUMBAI V. DCIT 8(3)(1), MUMBAI

ITA 2037/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8987 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HEMALATHA
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO.2037/MUM/2017 (ASSESSMENT YEAR 2009-10) M/S. TRIDENT MERCANTILE PVT. LTD. RUSTOM BUILDING, 3 RD FLOOR, 29, V.N.ROAD, FORT, MUMBAI 400 023 PAN:AAACT 3330K ...... APPELLANT VS. DY. COMMISSIONER OF INCOME TAX-8(3)(1), MUMBAI. .... RESP ONDENT APPELLANT BY : SHRI BHUPENDRA KARKH ANIS RESPONDENT BY : MS. HEMALATHA DATE OF HEARING : 02/08/2017 DATE OF PRONOUNCEMENT : 30/10/2017 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTA INING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-14, MUMBAI DATED 18/01/2017, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S 147 OF THE INCO ME TAX ACT, 1961 (IN SHORT THE ACT) DATED 25/03/2015. 2. AT THE OUTSET, IT WAS NOTICED THAT THE CIT(A) HA S NOT CONSIDERED THE ISSUES RAISED BY THE ASSESSEE ON MERITS, BUT HAS DI SMISSED THE APPEAL IN-LIMINE REFUSING TO CONDONE THE DELAY OF SEVEN DAYS IN FILI NG THE APPEAL BEFORE HIM. THOUGH THE RELEVANT DISCUSSION IN THE ORDER OF THE CIT(A) IS CRYPTIC, BUT IT IS 2 ITA NO.2037/MUM/2017 (ASSESSMENT YEAR 2009-10) NOTICEABLE THAT THE DIRECTOR OF THE ASSESSEE COMPA NY HAD SUBMITTED THAT DUE TO HIS ILLNESS FOR 15 DAYS, HE COULD NOT ATTEND THE OFFICE AND, THEREFORE, THERE WAS A DELAY OF SEVEN DAYS IN FILING OF THE APPEAL. THE CIT(A) HAS REFUSED TO CONDONE THE DELAY ON THE GROUND THAT NO EVIDENCE HA S BEEN PRODUCED IN SUPPORT OF THE CLAIM OF ILLNESS DURING THE PERIOD F URNISHED. 3. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE F OR THE ASSESSEE POINTED OUT THAT IN THE COURSE OF HEARING BEFORE THE CIT(A) ASSESSEE HAD FURNISHED A PAPER BOOK CONTAINING DETAILED SUBMISSIONS AND OTHE R EVIDENCES ON THE MERITS OF THE VARIOUS ISSUES RAISED BY THE ASSESSEE IN ITS APPEAL. SO, HOWEVER, THERE IS NO DISCUSSION WITH REGARD TO THE SAME AND THE APPEA L HAS BEEN DISMISSED BY REFUSING TO CONDONE THE DELAY. THE LD. REPRESENTAT IVE FOR THE ASSESSEE ASSERTED THAT NO DISCUSSION TOOK PLACE WITH REGARD TO THE DELAY IN FILING OF THE APPEAL BEFORE CIT(A) AND, THEREFORE, EXCEPT THE LE TTER SEEKING CONDONATION OF DELAY WHICH WAS ON RECORD, THE SUPPORTING MEDICAL CERTIFICATE COULD NOT BE SUBMITTED. IT WAS CONTENDED THAT THE ASSESSEE WOUL D BE SATISFIED IF THE MATTER IS REMANDED BACK TO CIT(A) FOR DENOVO ADJUDICATION ON MERITS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT SERI OUSLY OPPOSED THE PLEA OF THE ASSESSEE, BUT DEFENDED THE ORDER OF THE CIT( A) REFUSING TO CONDONE THE DELAY IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT THE CLAIM OF ILLNESS. 5. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND ALSO PERUSED THE IMPUGNED ORDER OF THE CIT(A). WHILE THE CIT(A) IS NOT ENTIRELY INCORRECT IN REFUSING TO CONDONE THE DELAY IN THE ABSENCE OF EVI DENCE IN SUPPORT OF THE CLAIM OF ILLNESS, BUT THERE IS NO MATERIAL TO SUGGE ST THAT THE CIT(A) HAD PUT THE ASSESSEE TO ANY NOTICE IN THIS REGARD. PERTINENTLY , THE CIT(A) WAS DEALING WITH A DELAY OF SEVEN DAYS, WHICH IS QUITE SMALL AND THE P RINCIPLES OF NATURAL JUSTICE 3 ITA NO.2037/MUM/2017 (ASSESSMENT YEAR 2009-10) AND FAIR PLAY OBLIGED HIM TO ATLEAST PUT THE ASSESS EE ON NOTICE TO SUBSTANTIATE THE CLAIM OF ILLNESS. HOWEVER, SUCH AN APPROACH IS QUITE CONSPICUOUS BY ITS ABSENCE BY THE IMPUGNED ORDER OF CIT(A). BEFORE ME , THE LD. REPRESENTATIVE FOR THE ASSESSEE HAS REFERRED TO CERTIFICATE ISSUE D BY THE MEDICAL PRACTITIONER SUPPORTING ASSESSEES CLAIM OF ILLNESS DURING THIS PERIOD. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , I DEEM IT FIT AND PROPER TO CONDONE THE DELAY IN FILING OF APPEAL BEFORE THE CI T(A) AND RESTORE THE MATTER BACK TO HIS FILE TO BE ADJUDICATED DENOVO IN ACCORD ANCE WITH LAW. NEEDLESS TO MENTION, THE CIT(A) SHALL ALLOW THE ASSESSEE A RE ASONABLE OPPORTUNITY OF BEING HEARD AND ONLY THEREAFTER, PASS AN ORDER AFRE SH AS PER LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2017 SD/- (G.S.PANNU) ACCOCUNTANT MEMBER MUMBAI, DATED 30/10/2017 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI