The Prajatantra Prachar Samity, Cuttack V. ACIT, Cuttack

ITA 207/CTK/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7839 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARIMITA TRIPATHY
• Assessee Lawyers: SASWAT ACHARYA
• Keywords: Charitable institution; Principle of natural justice; Reasonable cause
• Section: 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK (BEFORE S/SHRI K.K. GUPTA AM & K.S.S.PRASAD RAO, J M) I.T.A.NO. 207/CTK/2012 ASSESSMENT YEAR: 2007-08 THE PRAJATANTRA PRACHAR SAMITY, BEHARIBAG, CHANDINI CHOWK, CUTTACK PA NO.AAATP 2215 Q VS ACIT, CIRCLE 2(1), CUTTACK APPELLANT RESPONDENT APPELLANT BY: SHRI SASWAT ACHARYA RESPONDENT BY: SMT. PARIMITA TRIPATHY DATE OF HEARING :20.6.2012 DATE OF PRONOUNCEMENT:29.6.2012 ORDER PER K.S.S.PRASAD RAO, JM THIS APPEAL IS FILED BY THE ASSESSEE HAVING BEEN AG GRIEVED BY THE ORDER DATED 27.10.2001 OF THE CIT (A)-CUTTACK FOR THE ASSESSME NT YEAR 2007-08 IN THE CASE OF THE ASSESSEE. 2. THE ASSESSEE HAS RAISED THE FOLLOWING ISSUES IN ITS GROUNDS OF APPEAL: 1. FOR THAT THE SUMMARY REJECTION ORDER PASSED BY THE LD CIT(A) WITHOUT ADMITTING THE APPEAL IS BEREFT OF ANY MERIT AND AS SUCH LIABLE TO BE QUASHED IN LIMINE. 2. FOR THAT WHILE PASSING THE DISMISSAL ORDER, LD C IT(A) HAS NOT HEARD THE APPELLANT EITHER IN PERSON OR THROUGH ANY AUTHORIZE D REPRESENTATIVE IN GROSS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND AS SUCH THE ORDER IS LIABLE TO BE SET ASIDE, 3. FOR THAT IT IS SETTLED LAW FORMULATED BY THE HON BLE APEX COURT THAT THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TI ME LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NO T BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM INTO A GOO D CAUSE. RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF P ARTIES. THEY ARE MEANT I.T.A.NO. 207/CTK/2012 ASSESSMENT YEAR: 2007-08 2 TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTI CS, BUT SEEK THEIR REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. T HE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. 4. FOR THAT JUDICIARY IS RESPECTED FOR ADMINISTERIN G THE JUSTICE IN DISPOSING THE APPEAL IN A MERITORIOUS MANNER RATHER THAN DISM ISSING THE SAME ON MERE TECHNICALITIES. IF THE REFUSAL TO CONDONE THE DELAY RESULTS IN GRAVE MISCARRIAGE OF JUSTICE, IT WOULD BE A GROUND TO CON DONE THE DELAY. 5. FOR THAT DISMISSAL ORDER OF THE FORUM BELOW IS A GAINST THE DECISION OF THE JURISDICTIONAL HIGH COURT INCLUDING THAT OF THE HONBLE APEX COURT AND AS SUCH THE REJECTION ORDER IS LIABLE TO BE RECALLE D AND THE MATTER REQUIRES ITS DISPOSAL ON MERIT AFTER HEARING THE COUNSEL BY THE LD CIT(A). 6. FOR THAT THERE WAS NO REPEATED NON-COMPLIANCE TO NOTICE U/S.250 OF THE I.T.ACT BY THE APPELLANT AS HAS BEEN OBSERVED B Y THE LD CIT(A) VIDE PARA 3 OF THE ORDER, SO THERE WAS NO CONSCIOUS DISR EGARD TO THE LAW BY THE APPELLANT AT ANY GIVEN POINT OF TIME WHICH REQU IRES A LIBERAL INTERPRETATION IN THE INTEREST OF JUSTICE. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED IN THE APPEAL AND ITS LEGAL IMPLICATIONS. 4. ON CAREFUL ANALYSIS OF THE ORDER OF THE CIT (A) IN THE LIGHT OF MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS RIVAL SUBM ISSIONS OF BOTH PARTIES, THE UNDISPUTED FACTS RELATING TO THE ISSUE ARE THAT ASSESSEE IS A CHARITABLE TRUST AND ASSESSED TO TAX UNDER INCOME TAX. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE I.T.ACT 1961 ON 31.12.2009. THE FIRST APPEAL IS TO BE FIL ED WITHIN 30 DAYS FROM THE RECEIPT OF THE ASSESSMENT ORDER. HOWEVER, THE ASSESSEE HAS FI LED THE APPEAL BELATEDLY 122 DAYS BEFORE THE CIT(A). THE ASSESSEE HAS FILED PETITION TO CONDONE THE DELAY IN FILING THE APPEAL. LD CIT(A) AFTER CONSIDERING THE CONTENTS O F THE ASSESSEE FOR CONDONING THE DELAY OF 122 DAYS HAS COME TO THE CONCLUSION THAT T HE REASONS OF DELAY GIVEN BY THE ASSESSEE IN FILING THE APPEAL THAT THE ASSESSMENT O RDER WAS RECEIVED BY ONE OF THE ATTENDANT IN THE OFFICE WHO WITHOUT UNDERSTANDING T HE IMPLICATION OF THE TAX LAW KEPT IT WITHOUT OPENING THE ENVELOP FOR A LONG TIME DURING THE ABSENCE OF CHAIRMAN FROM THE HEADQUARTERS. THE CHAIRMAN OF THE ASSESSEE WHO IS A SITTING MEMBER OF PARLIAMENT (LOK SABHA) AND MEMBER OF FEW OTHER PARLIAMENTARY C OMMITTEES REMAINS AWAY FROM CUTTACK FOR MOST OF THE TIME TO DISCHARGE HIS OFFIC IAL FUNCTION. HE FLIES ONE PLACE TO ANOTHER ALL THROUGH THE MONTH EXCEPT FOR THE PERIOD WHEN THE PARLIAMENT IS IN SESSION AT I.T.A.NO. 207/CTK/2012 ASSESSMENT YEAR: 2007-08 3 DELHI. FOR THIS, HE REMAINED AT DELHI FOR QUITE A CONSIDERABLE TIME AND RETUNED TO CUTTACK AFTER THE RAJYA SABHA ELECTION. THE ATTEND ANT THEN HANDED OVER THE ENVELOP TO THE CHAIRMAN ON HIS RETURN TO CUTTACK. THE CHAIRMA N AFTER GOING THROUGH IT HAS TAKEN STEP TO FILE FIRST APPEAL, SO, THE DELAY OF 122 DAY S HAS OCCURRED. THIS CONTENTION OF THE ASSESSEE WAS NOT FOUND FAVOUR BY LD CIT(A) AND HE D ISMISSED THE SAID DELAY CONDONATION PETITION OBSERVING THAT HE HAS NOT FOUN D ANY MERIT IN THE PETITION FILED BY THE ASSESSEE FOR CONDONING 122 DAYS IN FILING THE A PPEAL. AGGRIEVED, THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING, LD A.R. FOR THE AS SESSEE REITERATED THE REASONS IN NOT FILING THE APPEAL WITHIN TIME BEFORE THE CIT(A) AND HAS VEHEMENTLY ARGUED THE CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL. HE SUBMITTED THAT LD CIT(A) HAS NOT CONSIDERED THE EXPLANATION GIVEN BY THE ASSESSEE FO R CONDONING THE DELAY IN PROPER PERSPECTIVE. HENCE, HE SOUGHT FOR SETTING ASIDE TH E ORDER OF LD CIT(A) TO ADJUDICATE THE APPEAL ON MERITS AS RAISED IN THE GROUNDS OF APPEAL . 6. CONTRARY TO THIS, LD D.R. HAS VEHEMENTLY ARGUED SUPPORTING THE ORDER PASSED BY LD CIT(A) AS WELL AS BY AO ASSAILING THE CONTENTS O F THE ASSESSEE AND SOUGHT FOR DISMISSING THE APPEAL OF THE ASSESSEE. 7. ON CAREFUL CONSIDERATION OF THE MATERIALS AVAILA BLE TO THE TRIBUNAL IN THE LIGHT OF RIVAL SUBMISSIONS OF BOTH THE PARTIES, IT IS FOUND THAT LD CIT(A ) IN THE IMPUGNED ORDER HAS NOT AT ALL DENIED THE CLAIM OF THE ASSESSEE THA T THE ATTENDANT WHO HAS RECEIVED THE ASSESSMENT ORDER HAS NOT OPENED THE COVER CONTAININ G THE ASSESSMENT ORDER SERVED ON HIM ON BEHALF OF ASSESSEE BUT THE SAME WAS ULTIMATE LY OPENED BY THE CHAIRMAN OF THE TRUST, WHO IS A MEMBER OF PARLIAMENT AND MEMBER OF FEW OTHER PARLIAMENTARY COMMITTEE. HE HAPPENS TO FLY FROM ONE PLACE TO ANO THER PLACE THROUGHOUT THE MONTH EXCEPT FOR THE PERIOD WHEN THE PARLIAMENT IS IN SES SION AT DELHI AND FOR THIS PURPOSE, HE REMAINED IN DELHI FOR A QUITE CONSIDERABLE PERIOD DUE TO RAJYA SABHA ELECTION AND THEN RETURNED TO CUTTACK. WHEN HE WAS GIVEN THE COVER C ONTAINING THE ASSESSMENT ORDER BY THE ATTENDANT, HE TOOK STEPS FOR FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. LD CIT(A) HAS ONLY EXAMINED THE LEGAL POSITION WITHOUT FIRST EXAMINING THE FACTUAL ASPECT PLEADED BY THE ASSESSEE BEFORE HIM FOR CONDONING TH E DELAY. BEFORE TAKING ANY DECISION, THE AUTHORITY MUST FIRST OF ALL HAVE TO F IND OUT WHETHER THE FACTS PLEADED BY THE I.T.A.NO. 207/CTK/2012 ASSESSMENT YEAR: 2007-08 4 ASSESSEE BEFORE HIM ARE CORRECT OR NOT AND ALSO THE Y ARE AKIN TO THE FACTS AND CIRCUMSTANCES MENTIONED IN THE JUDICIAL PRONOUNCEME NTS WHICH WERE RELIED UPON BY HIM WHILE ADJUDICATING THE MATTER. IN THE IMPUGNED ORD ER, LD CIT(A) HAS NOWHERE DENIED THE CONTENTS OF THE FACTS MENTIONED IN THE DELAY CO NDONATION PETITION. IN THAT VIEW OF THE MATTER, THE CONTENTS OF THE DELAY CONDONATION G OES UNCONTROVERTED AND ARE TO BE ACCEPTED. BEFORE THE TRIBUNAL ALSO, THE DEPARTMENT IS NOT ABLE TO SHOW THAT THE CONTENTS OF THE DELAY CONDONATION FILED BY THE ASSE SSEE BEFORE LD CIT(A) ARE NOT CORRECT. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS REASONABLE CAUSE IN FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND HENCE, WE HEREBY CONDONE THE DELAY AND SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE APPEAL TO HIS FILE TO DISPOSE OF THE SAME ON MERITS. OF COURSE, LD CIT(A) WILL FOLLOW STRICTLY THE PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, THE APPEAL IS RESTORED TO THE FILE OF LD CIT(A) TO REDECIDE THE SAME ON MERITS AFTER HEARING BOTH THE SIDES. 8. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. PRONOUNCED ON THE OPEN COURT ON 29 TH JUNE, 2012 SD/- SD/- (K.K.GUPTA) (K.S.S.PRASAD RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29 TH JUNE, 2012 PARIDA COPY TO : 1. ASSESSEE- THE PRAJATANTRA PRACHAR SAMITY, BEHARI BAG, CHANDINI CHOWK, CUTTACK 2. ASSESSING OFFICER- ACIT, CIRCLE 2(1), CUTTACK 3. CIT, CUTTACK 4. CIT (A)CUTTACK 5. D.R., ITAT, CUTTACK. 6. GUARD FILE. TRUE COPY BY ORDER SR. PVT. SECRETARY