P. Raghunatha Reddy, Hyderabad V. ITO, Ward-2, Mahabubnagar

ITA 2079/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61823 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 16-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: A V RAGHURAM
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

ITA NOS. 2079 TO 2084/HYD/2011 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR ============================ 1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER I.T.A. NO. 2079/HYD/2011 ASSESSMENT YEAR : 2001-02 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT I.T.A. NO. 2080/HYD/2011 ASSESSMENT YEAR : 2002-03 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT I.T.A. NO. 2081/HYD/2011 ASSESSMENT YEAR : 2001-02 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT I.T.A. NO. 2082/HYD/2011 ASSESSMENT YEAR : 2002-03 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT I.T.A. NO. 2083/HYD/2011 ASSESSMENT YEAR : 2001-02 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT ITA NOS. 2079 TO 2084/HYD/2011 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR ============================ 2 I.T.A. NO. 2084/HYD/2011 ASSESSMENT YEAR : 2002-03 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR PAN: BDTPP3072J VS. INCOME TAX OFFICER, WARD-2, MAHABUBNAGAR APPELLANT RESPONDENT ASSESSEE BY: SHRI A V RAGHU RAM REVENUE BY: SMT NIVEDITA BISWAS DATE OF HEARING: 02.04.2012 DATE OF PRONOUNCEMENT: 02.04.2012 O R D E R PER CHANDRA POOJARI, AM : THESE ARE SIX APPEALS BY THE ASSESSEE AGAINST DIFFE RENT ORDERS OF CIT(A) IN RESPECT OF ABOVE ASSESSEE. 2. GROUNDS IN ABOVE APPEALS ARE COMMON IN NATURE WH ICH ARE AS UNDER: 1. THE ORDER OF THE LEARNED CIT(A) DISMISSING THE APPE AL AS BARRED BY LIMITATION IS NOT ONLY PERVERSE BUT IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED CIT(A) HAVING ENTERTAINED THE APPEAL BY CALLING FOR A REMAND REPORT AND THOUGH THERE IS NOT EVEN A WHISPER ABOUT VALIDITY OF ALLEGED SERVICE OF NOTICE BY AFFIXTURE ON THE ASSESSEE IN SUCH REMAND REPORT AND HAVING NOT GIVEN AN OPPORTUNITY TO THE ASSESSEE O EXPLAIN THE DELAY ERRED IN DISMISSING TH E APPEAL PARTICULARLY WHEN THE STAND OF THE ASSESSEE IS THAT THERE IS NO VALID SERVICE EARLIER AND THE DATE OF RECEIPT OF CERTIFIED COPY IS DATE OF SERVICE. 3. THE LEARNED CIT(A) HAVING CALLED FOR THE REMAND REP ORT AND IN VIEW OF THE REPORT OF THE ASSESSING OFFICER THAT THE SAME INCOME IS ALREADY ASSESSED IN ANOTHER ASSESSEES HANDS OUGHT TO HAVE ANNULLED THE ASSESSMENT IN THE HANDS OF THE ASSESSEE. 3. BEFORE US THE LEARNED AR SUBMITTED THAT IN ALL THESE CASES, APPEALS WERE DISMISSED BY THE CIT(A) B Y STEREO ITA NOS. 2079 TO 2084/HYD/2011 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR ============================ 3 TYPED ORDER WITHOUT POINTING OUT THE DELAY IN FILIN G APPEALS TO THE ASSESSEE AND HE DREW OUR ATTENTION TO THE FO LLOWING PARA 4 & 4.1 OF THE CIT(A)S ORDER WHICH READS AS F OLLOWS: 4. IN THIS CASE, THE IMPUGNED ORDER WAS PASSED ON 26.12.2008. T HIS ORDER WAS SERVED BY AFFIXTURE ON KNOWN ADDRESS OF THE APPELLANT ON 20.01.2009. THE APPEAL HAVE BEEN FILED ON 20.11.2009 WHEREAS IT SHOULD HAVE BE EN FILED BY 29.07.2009. THEREFORE, THE APPEAL IS LATE BY 274 DAYS. FIRS TLY, THERE IS NO APPLICATION FOR CONDONATION OF DELAY. ON THE CONTRARY, THE APPELLANT HAS STATED THAT THE APPEAL HAS BEEN FILED IN TIME. THE REASO NS GIVEN ARE THAT THE APPELLANT WAS NOT AWARE OF THE ORDER SERVED BY AFFIXTURE. IT WAS STATED THAT THE APPELLANT HAPPENED TO GO TO SHADNAGAR ON SOME PERSONAL W ORK WHERE HE CAME TO KNOW OF CERTAIN ORDERS. THEN, HE APPROACHED TH E INCOME TAX OFFICER, WARD-2, MAHABOOBNAGAR AND REQUESTED FOR CERTIFIED COPIES OF T HE ORDERS WHICH WERE ISSUED ON 21.10.2009. IN VIEW OF THIS, TH E APPELLANT HAS STATED THAT ITS APPEAL IS IN TIME. 4.1 FIRSTLY, THE NOTICES AND THE ORDER HAVE BEEN SERVE D AS PER LAW. SECONDLY, THE APPELLANT HAS NOT STATED ANY FACTS APART FROM GIVING A GEN ERAL STORY ABOUT NOT GETTING THE ORDER AND GOING ON SOME PERSONAL WORK TO SHADNAGAR , ETC. IN ORDER TO GET THE DELAY CONDONED, THE APPELLANT NOT ONLY HAS TO MAKE A SPECIFIC APPLICATION BUT IS ALSO SUPPOSED TO PROVIDE THE REASONS WITH EVIDENCE WHICH PREVENTED HIM FOR FITTING THE APPEAL IN TIME. IT IS A SETTLED ISSUE THAT EACH AND EVERY DAY OF DELAY IS TO BE EXPLAINED BY THE APPELLANT WITH A PPROPRIATE REASONS AND EVIDENCE. SINCE THIS HAS NOT BEEN DONE AND EVEN T HE FACTS ARE NOT CLEAR, I HOLD THAT THE APPEAL IS LATE AND THE DELAY CANNOT BE CONDONED 4. THUS THE GRIEVANCES OF THE ASSESSEE IS THAT CIT(A) OUGHT HAVE GIVEN AN OPPORTUNITY OF HEARING T O THE ASSESSEE BEFORE DISMISSING APPEALS UN-ADMITTING THE SAME ON ACCOUNT OF DELAY IN FILING THE APPEALS. FURTHER , LEARNED AR SUBMITTED THAT THERE WAS A DELAY OF 117 DAYS IN FILING APPEALS BEFORE THE TRIBUNAL IN ALL THESE CASES. HE EXPLAINED THE REASONS FOR DELAY IN FILING THE APPEALS BEFORE TRIBUNAL, AS FOLLOWS: 1. MY COUNSEL HAS RECEIVED THE ORDER OF THE CIT(A) ON 22.06.2011 AND THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 21.08.2011. HOWEVER, THE APPEAL IS FILED ON 16.12.2011 WITH A DELAY OF 117 DAYS. 2. THE CERTIFIED ORDERS RECEIVED FROM THE CIT(A) WAS R ECEIVED BY ONE OF THE JUNIOR COUNSELS IN THE OFFICE OF MY C OUNSEL SHRI VASANT KUMAR, ADVOCATE. BUT THE SAME GOT ACCIDENTALLY MIXED UP WITH ONE OF THE WEEDED OUT FI LES. SINCE IT WAS RECEIVED AND GOT MIXED UP WITH THE WEE DED OUT FILES, THE JUNIOR COUNSEL DID NOT REMEMBER THE FACT THOSE ADVERSE ORDERS WERE RECEIVED AND THOSE APPEALS WERE TO BE FILED. I WAS ALSO NOT INFORMED THEN, FOR THE ABOVE REASON. ITA NOS. 2079 TO 2084/HYD/2011 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR ============================ 4 IT IS ONLY WHEN I CALLED UP MY COUNSEL IN THE MONTH OF DECEMBER, 2011, IT WAS REALIZED THAT THE APPEALS WE RE HEARD IN THE MONTH OF APRIL, 2011 AND THE ORDERS WO ULD HAVE BEEN PASSED. WHEN MY COUNSEL HAS CHECKED UP W ITH THE SECTION OF CIT(A), IT WAS INFORMED THAT THE ORD ER WAS PASSED ON 07.06.2011 AND WAS SERVED ON 22.06.2011. IMMEDIATELY, EFFORTS WERE MADE TO TRACE OUT THE MIS PLACED CERTIFIED ORDERS IN THE OFFICE OF MY COUNSEL AND BY THE TIME WE COULD FILE THE APPEAL, THERE WAS A DELAY OF 117 DAYS. 3. IT IS SUBMITTED THAT THE DELAY IN FILING THE APPEAL IS NEITHER WILFUL NOR WANTON BUT FOR THE ABOVE MENTIONED REASO NS. IT IS SUBMITTED THAT THE VERY ASSESSMENT ORDERS PASSED IN MY CASE ARE ILLEGAL IN AS MUCH AS THE INCOME WHICH WAS ASSESSED IN THE HANDS OF SHRI P. SUNITH REDDY (WHO CARRIED ON THE BUSINESS ON A LICENCE WHICH WAS ISSUED ON MY NAME), WAS AGAINST SOUGHT TO BE TAXED ON THE ALLEGE D GROUND THAT I DID NOT RESPOND TO THE NOTICES ALLEGE DLY ISSUED BY THE ASSESSING OFFICER. IT IS SUBMITTED T HAT I HAVE CHALLENGED THE ASSESSMENT ORDERS AS SOON AS THE SAM E CAME TO MY NOTICE AND ALL THE TIME I AM AGITATING A GAINST THE PREJUDICE CAUSED TO ME ON ACCOUNT OF ILLEGAL AS SESSING OFFICER. IT IS SUBMITTED THAT THERE IS NO MISTAKE ON MY PART FOR FILING THE APPEALS BELATEDLY AND IT WAS ON ACCO UNT OF INADVERTENT MISTAKE WHICH HAPPENED IN THE OFFICE OF MY COUNSEL. IT IS SUBMITTED THAT IF THE HONBLE TRIBU NAL IS NOT PLEASED TO CONDONE THE DELAY OF 117 DAYS IN FILING THE APPEAL, I WOULD BE PUT TO IRREPARABLE LOSS AND INJU RY WHICH CANNOT BE COMPENSATED BY ANY OTHER MEANS. 5. THE DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND STRONGLY OPPOSED THE ARGUMENT OF THE LEARNED COUNSE L FOR ASSESSEE AND SUBMITTED THAT THESE APPEALS MAY BE DISMISSED A S ALL THESE APPEALS FILED BELATEDLY BEFORE THE TRIBUNAL AND ASS ESSEE NOT DESERVED FOR CONDONATION OF DELAY AND THE DELAY WAS DUE TO NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSE E. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY EXERCISE OF DUE CARE AND ATTENTION. ACCORDING TO THE DR, THERE EXISTS NO SU FFICIENT AND GOOD REASON FOR THE DELAY OF 117 DAYS IN FILING THE APPE AL BEFORE THE TRIBUNAL. 6. WE HAVE HEARD BOTH PARTIES AND CAREFULLY GONE THROUGH THE AFFIDAVIT FILED BY THE ASSESSEE AND PET ITION REQUESTING THE CONDONATION. THERE WAS A DELAY OF 117 DAYS IN F ILING THESE APPEALS. IN OUR OPINION, REASONS EXPLAINED BY THE ASSESSEE IN ITA NOS. 2079 TO 2084/HYD/2011 SHRI P RAGHUNATHA REDDY, MAHABUBNAGAR ============================ 5 THEIR AFFIDAVIT FOR CONDONING THE DELAY ARE GOOD AN D SUFFICIENT. THE DELAY HEREIN IS NOT INORDINATE AND OF FEW DAYS ONLY AND IT DESERVES LIBERAL APPROACH IN CONDONING THE SAME. KEEPING IN MIND THE PRINCIPLES OF ADVANCING SUBSTANTIAL JUSTICE AND TO REMOVE THE INJUSTICE BY CONDONING THE DELAY ON TECHNICALITIES, WE CONDONE THE DELAY OF 117 DAYS IN FILING THE APPEALS BEFORE THE TRIBUNAL AND ACCORDINGLY, ADMIT THE APPEALS. 7. AFTER ADMITTING APPEALS, IN OUR OPINION, CIT(A) MUST HAVE POINTED THE DELAY TO THE ASSESSEES, IF ANY, IN FILING THE APPEALS BEFORE HIM, BEFORE HE DISMISSING THE APPEAL . CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, IN O UR OPINION, IT IS APPROPRIATE TO SET ASIDE THE APPEALS TO THE FILE OF THE CIT(A) WITH A DIRECTION TO POINT OUT DELAY, IF ANY, TO THE ASSESS EE, THERE UPON DECIDE THE APPEALS IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND APRIL, 2012. SD/- SD/- SD/- ( SAKTIJIT DEY) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 2 ND APRIL, 2012 COPY FORWARDED TO: 1. SHRI P. RAGHUNATHA REDDY, C/O SHRI K VASANTKUMAR & A V RAGHURAM, ADVOCATES, 610, 6 TH FLOOR, BABHUKHAN ESTATE, BASHEERBAGH, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-2, MEHABOOBNAGAR. 3. THE CIT(A)-V, HYDERABAD. 4. THE DR A BENCH, ITAT, HYDERABAD B.V.S.