Sri Triyogi Narayan Singh, Kolkata V. I.T.O Wd - 28(2),kolkata., Kolkata

ITA 2080/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4720 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-05-2016
• Assessment Year: misc
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH J
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 2080 / KOL / 2013 ASSESSMENT YEAR :2004-05 SRI TRIYOGI NARAYAN SINGH 98, GARDEN REACH ROAD, KOLKTA-700 023 [ PAN NO.APMPS 8395 D ] V/S . ITO, WARD- 28(2), AAYAKAR DAKHIN, 3 RD FLOOR, 2, GARIAHAT ROAD (SOUTH), KOLKATA-700 068 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI KALYAN NATH, JCIT-DR /DATE OF HEARING 25-05-2016 /DATE OF PRONOUNCEMENT 01-06-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY ASSESSEE IS AGAINST THE ORDER OF CO MMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA DATED 15.05.2013. ASSESS MENT WAS FRAMED BY ITO WARD-28(2), KOLKATA U/S 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.12.2006 FO R ASSESSMENT YEAR 2004-05. PENALTY LEVIED BY ASSESSING OFFICER U/S 271(1)(C) O F THE ACT VIDE HIS ORDER DATED 25.09.2007. 2. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT( A) HAS PASSED THE ORDER BY REJECTING THE CONDONATION APPLICATION FILED BY THE ASSESSEE ON THE GROUND THAT THE APPELLANT HAS FAILED TO JUSTIFY THE REASON FOR THE DELAY IN FILING THE APPEAL WHICH IS FOR 22 MONTHS. HOWEVER BEFORE US THE LD. AR SUBMITT ED THAT THE PENALTY WAS ITA NO.2080/KOL/2013 A.Y.2004-05 SH TRIYOGI NARAYAN SINGH V. ITO WD-28(2) KOL. PAGE 2 LEVIED UNDER SECTION 271(1)(B) AND 271(1)(C) OF THE ACT BY ORDER DATED 8.12.2006 AND 25.09.2007 RESPECTIVELY. AGAINST THE PENALTY OR DER UNDER SECTION 271(1)(B), THE ASSESSEE PREFERRED AN APPEAL TO LD. CIT(A) ON D ATED 2.7.2007 AND MENTIONED IN THE FORM 35 OF THE APPEAL FORM THAT APPEAL IS FI LED AGAINST THE PENALTY ORDER PASSED UNDER SECTION 271(1)(B) AND 271(1)(C) OF THE ACT BUT FACTUALLY IT WAS ONLY AGAINST THE PENALTY ORDER PASSED UNDER SECTION 271( 1)(B) OF THE ACT. THE ASSESSEE FURTHER SUBMITTED THAT THIS MISTAKE WAS DI SCOVERED WHEN THE LD. CIT(A) PASSED THE ORDER ON DATED 15.9.2009 AGAINST THE PEN ALTY ORDER 271(1)(B) OF THE ACT. SO THE ASSESSEE FILED THE APPEAL AGAINST THE P ENALTY ORDER 271(1)(C) OF THE ACT ON DATED 22.9.2009. IN SUCH CIRCUMSTANCES, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE BE REMITTED BACK TO THE FILE OF LD. CIT(A) FOR ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND ALSO PLACING RELEVANT MATERIAL BEFORE HIM, SO THAT HE CAN DECIDE THE ISSU E EITHER ON HIS ORDER OR BY TAKING REMAND REPORT FROM THE ASSESSING OFFICER. ON THE OTHER HAND, LD. SR-DR HAS NOT OBJECTED TO REMITTING THE ISSUE BACK TO THE FILE OF LD. CIT(A). 3. AFTER HEARING RIVAL CONTENTIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES, IT IS NOTICED THAT ASSESSEE WAS NOT PROVIDED WITH R EASONABLE OPPORTUNITY OF BEING HEARD DUE TO LATE FILING OF APPEAL WHICH THE LD. AR JUSTIFIED THAT THE ASSESSEE WAS PREVENTED BY MISUNDERSTANDING THE FACTS OF THE CASE FOR FILING THE APPEAL ON TIME. IN OUR CONSIDERED VIEW WHERE AN AUTHORITY IS REQUIR ED TO ACT IN A QUASI -JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. WHAT PARTICULAR R ULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT E XTENT ON THE FACTS AND CIRCUMSTANCES OF THAT CASE. FURTHER, THE PROVISIONS OF THE SAID SECTION 250(6) OF THE ACT ARE IN THE NATURE OF INSTRUCTIONS TO THE AP PELLATE AUTHORITY AND EMPHASIZING THAT THE ORDER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT BE CRYPTIC. THE ORDER SHALL BE SELF-EXPLANATORY. THAT SUB- SECTION CANNOT SUPPORT THE ARGUMENT THAT THE APPELL ATE AUTHORITY SHALL NOT TRAVEL BEYOND THE POINTS RAISED. THUS, SECTION 250(6) PROV IDES THAT THE ORDERS OF THE FIRST APPELLATE AUTHORITY DISPOSING OF THE APPEAL S HALL BE IN WRITING. SUCH ORDERS ITA NO.2080/KOL/2013 A.Y.2004-05 SH TRIYOGI NARAYAN SINGH V. ITO WD-28(2) KOL. PAGE 3 ARE TO STATE THE POINTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND THE REASONS FOR SUCH DECISION. THIS IS MORE SO BECAUSE SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE APPELLATE TRIBUNAL . THE OBJECT IS TOO OBVIOUS. IT ENABLES A PARTY TO KNOW PRECISE POINTS DECIDED IN H IS FAVOUR OR AGAINST HIM. ABSENCE OF THE FORMULATION OF THE POINTS FOR DECISI ON OR WANT OF CLARITY IN A DECISION, UNDOUBTEDLY PUTS A PARTY IN QUANDARY. A D ECISION AGAINST A PARTY ENABLES HIM TO GO IN APPEAL. A DECISION BY ITS VERY NATURE MUST BE FIRM AND SHOULD NOT BE VAGUE AND UNCLEAR. ON THE OTHER HAND THE LD. DR OPPOSED THE SUBMISSION OF THE ASSESSEE AND PRAYED NOT TO CONDON E THE DELAY. HOWEVER WE FIND THAT IN MANY CASES THE COURTS HAVE TAKEN LIBER AL APPROACH IN CONDONING THE DELAY. IN THIS CONNECTION WE ARE PUTTING OUR RELIAN CE IN THE FOLLOWING JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS (1987) AIR 387 (SC) WHEREIN THE EXPRESSION SUFFIC IENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTI CE THAT BEING THE LIFE- PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COU RTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBER AL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO H AVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY/. AND SUCH A LIBE RAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALISED THAT:- ANY APPEAL OR ANY APPLICATION, OTHER THAN AN APPLI CATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE CODE OF CIVIL PROCED URE, 1908, MAY BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE APPELLA NT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FO R NOT PREFERRING THE APPEAL OR MAKING THE APPLICATION WITHIN SUCH PERIOD. FURTHER WE FIND THAT THIS TRIBUNAL HAS CONDONED THE DELAY AS MANY AS 245 AND 800 DAYS RESPECTIVELY IN THE CASE OF JEEWANLAL LIMITED (1929) LTD. VS. DCIT IN ITA NOS 1994-1995/KOL/2003 IN C BENCH DATED 04-06-2004, THE EXTRACT IS REPRODUCED BELOW:- 3. REGARDING THE MERITS OF THE APPEALS BEFORE US, WE HAVE HEARD THE PARTIES. WE FIND THAT THE DISALLOWANCES OUT OF VARI OUS EXPENSES HAVE BEEN PARTLY CONFIRMED BY THE C.I.T(APPEALS) WITHOUT PASS ING ANY SPEAKING ORDER. ACCORDINGLY, IN THE FACTS OF THE CASE, WERE CONSIDE R IT REASONABLE TO SET ITA NO.2080/KOL/2013 A.Y.2004-05 SH TRIYOGI NARAYAN SINGH V. ITO WD-28(2) KOL. PAGE 4 ASIDE THE ISSUES RAISED IN THESE APPEALS TO THE FIL E OF THE C.I.T(APPEALS) WITH DIRECTION TO PASS A DE NOVO APPELLATE ORDER ON MERITS IN ACCORDANCE WITH LAW AFTER ALLOWING REASONABLE OPPORTUNITY OF H EARING TO THE PARTIES. WE ORDER ACCORDINGLY. IN SUCH PRESIDENTS OF THE SITUATION AND TAKING A CO NSISTENT VIEW OF THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION (SUPRA) AND THE ORDER OF THIS TRIBUNAL IN THE CASE OF JEEWANLAL LIMITED (SUPRA), WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT HIM TO PASS A DE NOVE ORDER ON MERITS IN ACCORDANCE WITH LAW AFTER ALLOWING REASONABLE OPPOR TUNITY OF BEARING HEARD TO THE PARTIES. THIS GROUND OF ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSE. 4. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 01/ 06/2016 SD/- SD/- (S.S.VISHWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 01 / 06 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI TRIYOGI NARAYAN SINGH, 98, GARDEN RE ACH ROAD, KOLKATA-23 2. /RESPONDENT-ITO, WARD-28(2), AAYAKAR DAKHIN, 3 RD FLOOR, 2 GARIAHAT ROAD (SOUTH), KOLKAT A-68 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,