M/s. Natural Energy Processing Company, CHENNAI V. ITO, CHENNAI

ITA 218/CHNY/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1004 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-03-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: T BANUSEKHAR
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH B : CHENNAI [BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER] S.P.NO.43/MDS/2011 & I .T.A NO.218/MDS/2011 ASSESSMENT YEAR : 1995-96 M/S NATURAL ENERGY PROCESSING COMPANY NO.36, WALLAJAH ROAD CHENNAI 600 002 [PAN: AAAFN9319H] VS THE ITO BUSINESS WARD VII(1) CHENNAI (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI T. BANUSEKHAR RESPONDENT BY : SHRI B. SRINIVAS O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THE ABOVE MATTERS WERE HEARD TOGETH ER. WHILE DEALING WITH THE STAY PETITION, IT WAS NOTICED DURING ASCERTAINM ENT OF FACTS LEADING TO IMPUGNED RECOVERY, THAT THE LD. CIT(A) HAS NOT DECI DED THE ISSUE ON MERITS AND DISMISSED THE SAME IN LIMINE AFTER NOT CONDONING THE DELAY IN FILING THE APPEAL BEFORE HIM. 2. IN FACT, INSTEAD OF CONSIDERING THE DELAY IN F ILING THE APPEAL BY 124 DAYS, THE LD. CIT(A) HAS GONE TOO FAR DEALING INTO THE APPEALS HAVING BEEN FILED BEFORE OTHER OFFICES OF THE DEPAR TMENT IN DIFFERENT MATTERS TO IGNORE THE EXPLANATION CONTAINED IN THE CONDONATION PETITION; THAT THE FIRM HAVING TWO PARTNERS, WAS NOT ENGAGED IN ANY ACTIVE BUSINESS AS THE OFFICES OF THE ASSESSEE HAD BEEN AT TACHED BY THE S.P 43/11 & ITA 218/11 :- 2 -: DEPARTMENT AND THE CONCERNED PARTNER NAMELY, SHRI T HIRUPATHY KUMAR KHEMKA WHO WAS REALLY LOOKING AFTER AFFAIRS OF THE FIRM WAS NOT KEEPING GOOD HEALTH AND WAS HOSPITALIZED DURING THE PERIOD. AFTER THAT HE TRAVELED TO FOREIGN COUNTRY IN THE FIRST WEEK OF JA NUARY 2008 AND RETURNED ONLY IN THE LAST WEEK JANUARY. THEREAFTER , HIS FATHER WAS HOSPITALIZED AND THAT IS WHY THE DELAY OF 124 DAYS IN FILING THE APPEAL. THE LD.DR OBJECTED TO THE CONDONATION OF DELAY. THE LD.AR HAS, HOWEVER, REPEATED THE SAME REASONS AND PRAYED FOR C ONDONATION OF THE DELAY. 3. AFTER HEARING BOTH SIDES, IN VIEW OF THE ABOVE M ENTIONED DICTUM, WE FIND THAT SUBSTANTIVE JUSTICE SHOULD BE DONE T O THE PARTIES. IT IS A FIT CASE FOR CONDONATION OF DELAY IN FILING THE AP PEAL BEFORE THE LD. CIT(A) IN VIEW OF THE STRAIGHT DICTUM OF HON'BLE SU PREME COURT RENDERED IN THE CASES OF COLLECTOR, LAND ACQUISITI ON VS MST. KATIJI (1987) 167 ITR 471 AND VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS SHANTARAM BABURAO PATIL AND OTHERS, 253 ITR 798. A CCORDING TO THE HON'BLE SUPREME COURT, THE ASSESSEE IS NOT REQUIRED TO EXPLAIN EACH DAYS DELAY AND WHEN SUBSTANTIAL JUSTICE IS PITTED AGAINST THE PROCEDURAL IRREGULARITIES, THE FORMER SHOULD PREVAI L. CONSEQUENTLY, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS A CLEAR CUT CASE FOR CONDONATION OF THE DELAY IN VIEW OF THE REASONS MENTIONED ABOVE. 4. IT WAS NOTICED THAT A DELAY OF 775 DAYS IN FILI NG THE APPEAL BEFORE THE TRIBUNAL WAS ALSO THERE AND THAT WAS DUE TO MUL TIPLICITY OF ACTIONS S.P 43/11 & ITA 218/11 :- 3 -: TAKEN AGAINST THE ASSESSEE INCLUDING POLICE CASE. BEING SATISFIED WITH THE REASONS MENTIONED IN THE CONDOANTION PETITION W HICH IS SUPPORTED BY DULY ATTACHED AFFIDAVIT AND IN VIEW OF THE ABOVE MENTIONED LEGAL POSITION, WE CONDONE THIS DELAY AND PROCEED TO DECI DE THE APPEAL ITSELF BY RESTORING THE SAME TO THE FILE OF THE LD. CIT(A) AS WE HAVE ALREADY CONDONED THE DELAY IN FILING THE APPEAL BEFORE HIM AS WELL. THE LD. CIT(A) HAS TO DECIDE THE ISSUES TAKEN IN APPEAL BE FORE HIM ON MERITS AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE . ACCORDINGLY, THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. T HE STAY PETITION IS DISMISSED HAVING BECOME INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR S TATISTICAL PURPOSES AND THE STAY PETITION STANDS DISMISSED HAVING BECOM E INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 11.3. 2011. SD/- SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 11 TH MARCH, 2011 RD COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR