Sh. Shailendra Agarwal, Agra V. A.C.I.T.-1, Agra

ITA 221/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0369 (ITAT-AGRA)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E PASS ROAD AGRA PAN ABMPA D
• Assessee Lawyers: RAJENDRA SHARMA SHRI K K
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 221/AGRA/2012 ASSTT. YEAR : 2008-09 SHAILENDRA AGARWAL, VS. A.C.I.T. 1, 13, NIRBHAYA NAGAR, AGRA. GAILLANA BYE PASS ROAD, AGRA. (PAN : ABMPA 3957 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 21.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 28.02.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 29.06.2011 FOR THE ASSESSMENT YEAR 2008- 09. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE, THE ASSESSMENT ORDER U/S. 143(3) WAS PASSED ON 10.12.2010, MAKING CERTAIN ADD ITIONS AGAINST THE ASSESSEE. THE ASSESSEE FILED RETURN OF INCOME ON 13.07.2008 D ECLARING INCOME OF RS.1,01,46,930/-. THE ADDITIONS WERE CHALLENGED BEF ORE THE LD. CIT(A). THE LD. CIT(A) AT THE TIME OF HEARING OF APPEAL FOUND THAT THE AO HAS REPORTED THAT ITA NO. 221/AGRA/2012 2 ADMITTED TAX LIABILITY OF RS.33,91,154/- ALONG WITH INTEREST OF RS.7,84,209/- HAS NOT BEEN PAID BY THE ASSESSEE. THEREFORE, ACCORDING TO THE PROVISIONS OF SECTION 249(4), THE APPEAL SHOULD NOT BE ADMITTED. THE LD. CIT(A) E NQUIRED THIS FACT WITH THE ASSESSEE WHETHER ADMITTED TAX LIABILITY HAS BEEN PA ID OR NOT. THE ASSESSEES AUTHORIZED REPRESENTATIVE ADMITTED BEFORE THE LD. C IT(A) THAT DUE TO FINANCIAL CONDITIONS, THE ASSESSEE COULD NOT PAY THE ADMITTED LIABILITY AND EVEN NO COMMITMENT WAS GIVEN AS TO WHEN THE SAME WOULD BE P AID. THE LD. CIT(A), THEREFORE, FOUND THAT THE TOTAL ADMITTED LIABILITY OF TAX COMES TO RS.41,75,449/- INCLUDING THE INTEREST, OUT OF WHICH, BEFORE FILING OF APPEAL, THE ASSESSEE HAS PAID ONLY RS.5,00,000/- AND BALANCE ADMITTED TAX LIABILI TY COMES TO RS.36,75,449/- WHICH REMAINED UNPAID. THE LD. CIT(A) AS PER SECTIO N 249(4) DID NOT ADMIT THE APPEAL OF THE ASSESSEE AND ACCORDINGLY DISMISSED TH E SAME. 3. THE APPEAL IS NOW FILED CHALLENGING THE ORDER OF THE LD. CIT(A) IN DISMISSING THE APPEAL, WHICH IS ALSO TIME BARRED. THE LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE SUBSEQUENTLY PAID THE ADMITTED LI ABILITY, WHICH IS MORE THAN THE AMOUNT DUE ON THE RETURN AND PAID THE AMOUNT OF RS. 48,29,074/-, THE DETAILS OF WHICH ARE NOTED IN THE TABLE FILED BEFORE US. COPIE S OF CHALLANS FOR PAYMENT OF TAX ARE ALSO FILED IN THE PAPER BOOK. HE ALSO SUBMITTED THAT ASSESSEE AFTER MAKING THE PAYMENT OF TAX BY MARCH, 2012 MOVED BEFORE THE LD. CIT(A) FOR ADMISSION OF THE ITA NO. 221/AGRA/2012 3 APPEAL AND DISPOSAL OF APPEAL AFRESH AND ALSO FILED FRESH FORM-35, BUT THE LD. CIT(A) REJECTED THE PRAYER OF THE ASSESSEE VIDE ORD ER DATED 01.05.2012, COPY OF WHICH IS FILED ON RECORD. AN AFFIDAVIT OF THE COUNS EL OF ASSESSEE SHRI K.L. GOYAL, WHO APPEARED BEFORE THE LD. CIT(A) IS ALSO FILED IN WHICH HE HAS EXPLAINED THAT THE LD. CIT(A) INFORMED HIM THAT ON PAYMENT OF ADMITTED TAX, THE APPEAL SHALL BE ADMITTED AND WILL BE RE-HEARD. THEREFORE, IN THIS B ONA FIDE BELIEF AND ASSURANCE, THE ASSESSEE AFTER PAYMENT OF ADMITTED TAX, MOVED BEFOR E THE LD. CIT(A) AND APPEAL COULD NOT BE FILED ON TIME BEFORE THE TRIBUNAL. THE ASSESSEE AFTER REJECTION OF THE PRAYER OF ASSESSEE ON 01.05.2012 BY THE LD. CIT(A), IMMEDIATELY FILED THE APPEAL BEFORE THE TRIBUNAL ON 16.05.2012. THEREFORE, THE D ELAY MAY BE CONDONED. HE HAS SUBMITTED THAT SINCE THE ADMITTED TAX LIABILITY IS NOW PAID, THEREFORE, MATTER MAY BE REMANDED TO THE LD. CIT(A) FOR DECIDING THE APPEAL ON MERITS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE MATERIAL ON RECORD. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) BECAUSE THE BALANCE ADMITTED TAX LIABILITY REMAINED UNPAID TILL THE DISPOSAL OF APPEAL OF THE ASSESSEE. ACCORDING TO THE SUBMISSIONS OF THE LD. C OUNSEL FOR THE ASSESSEE ADMITTED TAX LIABILITY WAS PAID BY MARCH, 2012, WHICH IS SUP PORTED BY WORKING GIVEN BY THE LD. COUNSEL AND CHALLANS AVAILABLE ON RECORD. THE A SSESSEE THEREAFTER MOVED BEFORE THE LD. CIT(A) FOR ADMISSION OF APPEAL. HOWEVER, TH E SAME WAS REJECTED VIDE ORDER ITA NO. 221/AGRA/2012 4 DATED 01.05.2012. THE ASSESSEE THEREAFTER IMMEDIATE LY FILED THE PRESENT APPEAL WITHIN THE PERIOD OF LIMITATION. THUS, IT IS CLEAR THAT THE ASSESSEE WAS BONA FIDE IN PROCESS OF DEPOSITING ADMITTED TAX LIABILITY IN VAR IOUS PHASES DUE TO POOR FINANCIAL CONDITION AND ON PAYMENT OF TAX, IMMEDIATELY MADE R EQUEST TO THE LD. CIT(A) FOR REVIVAL OF APPEAL. ITAT, MUMBAI BENCH IN THE CASE O F BHIMRAJ CONSTRUCTIONS VS. ADDL. CIT, 131 ITD 406 IN PARA 12 HELD AS UNDER : ADVERTING TO THE FACTS OF THE INSTANT CASE WE FIND THAT THE ASSESSEE PAID THE TAX DUE ON INCOME RETURNED ALBEIT AFTER THE DISPOSAL OF APPEAL BY THE LD. CIT(A). ON SUCH PAYMENT, THE D EFECT IN THE APPEAL DUE TO NON-COMPLIANCE OF A DIRECTORY REQUIREMENT OF PAYING SUCH TAX BEFORE THE FILING OF THE APPEAL, STOOD REMOVED EX C ONSEQUENTI THIS APPEAL SHOULD HAVE BEEN REVIVED BY THE LD. FIRST AP PELLATE AUTHORITY. UNDER SUCH CIRCUMSTANCES WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A ) FOR DISPOSAL OF THE APPEAL ON MERITS. 4.1 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE DECISION OF MUMBAI BENCH (SUPRA), WE ARE OF THE VIEW THAT SINCE THE AS SESSEE HAS PAID ADMITTED TAX LIABILITY AND HAS BEEN ABLE TO PROVE THAT THERE WAS SUFFICIENT CAUSE FOR NOT MOVING THE APPEAL WITHIN THE PERIOD OF LIMITATION AND THAT THE LD. DR HAS NO OBJECTION FOR CONDONATION OF DELAY AND RESTORATION OF APPEAL TO T HE LD. CIT(A), WE THEREFORE, CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE T RIBUNAL BECAUSE THE ASSESSEE WAS ABLE TO PROVE THAT THERE WAS SUFFICIENT CAUSE FOR F AILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION BEFORE THE TRIBUNAL. FURTHER S INCE THE ASSESSEE HAS PAID ADMITTED TAX, THEREFORE, MATTER SHALL HAVE TO GO BA CK TO THE LD. CIT(A) FOR DECIDING ITA NO. 221/AGRA/2012 5 THE APPEAL ON MERITS. WE, ACCORDINGLY, SET ASIDE TH E ORDER OF THE LD. CIT(A) DATED 29.06.2011 AND RESTORE THE APPEAL OF THE ASSESSEE T O HIS FILE WITH THE DIRECTION TO ADMIT THE APPEAL OF THE ASSESSEE FOR HEARING ON MER ITS AFTER VERIFYING THE PAYMENT OF ADMITTED TAX LIABILITY AND THEREAFTER SHALL DECI DE THE APPEAL OF THE ASSESSEE ON MERITS IN ACCORDANCE WITH LAW BY GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS THE AO. AS A RESULT, THE AP PEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY