Smt. Rupa Maheshkumar Gandhi, Ahmedabad V. The ITO, Ward-5(3)(2), Ahmedabad

ITA 2224/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4174 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Keywords: Unexplained investment; Condonation of delay; Set aside
• Section: 147; 144

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT ITA NO.2224/AHD/2018 / ASSTT.YEAR : 2010-11 SMT.RUPA MAHESHBHAI GANDHI D-404, 5 TH FLOOR, DHARNIDHAR TOWER PALDI, AHMEDABAD. PAN : ABUPG 5905 D VS. ITO, WARD - 3 (2)( 10 ) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI PRAKASH D. SHAH, AR REVENUE BY : SHRI R.R.MAKWANA, SR.DR / DATE OF HEARING : 24/05/2021 / DATE OF PRONOUNCEMENT: 01/06/2021 !'/ O R D E R THE ABOVE APPEAL FILED BY THE ASSESSEE ARISES FROM ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, AHMEDABAD D ATED 03.08.2018 FOR ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IN HER APPEAL HAS RAISED THE FOLLOW ING THREE GROUNDS: 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FA CTS BY NOT ADMITTING THE APPEAL ON ACCOUNT OF DELAY IN FILING OF THE APPEAL OF 66 DAYS AND THEREFORE THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW AND AGAINST FACTS AND THEREFORE THE ORDER PASSE D BY THE LEARNED CIT(A) IS TO BE QUASHED. 2. THAT THE LEARNED CIT(A) HAS ERRED IN LAWS AND FACTS BY NOT QUASHING THE ORDER PASSED UNDER SECTION 147 RWS 144 AS THE PROCEEDINGS FOR THE REASSESSMENT IS BAD IN LAW AND THEREFORE THE ORDER PASSED BY THE ID.AO IS TO BE QUASHED. ITA NO.2224/AHD/2018 2 3. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND F ACT BY NOT DELETING THE ADDITION OF UNEXPLAINED INVESTMENT OF RS.9,05,4 12/- AND THEREFORE THE ID.AO SHOULD BE DIRECTED TO DELETE THE SAID ADD ITION. 3. THE FIRST ISSUE IS REGARDING NON-ADMISSION OF AP PEAL DUE TO LATE FILING OF APPEAL BY 66 DAYS BEFORE THE LD.CIT(A). 4. IN NUTSHELL, THE FACTS OF THE ASSESSEES CASE IS THAT ASSESSMENT ORDER UNDER SECTION 144 READ WITH SECTION 147 OF TH E INCOME TAX ACT, 1961 WAS PASSED BY THE AO ON 21.12.2017 AND DETERMI NED ASSESSED INCOME AT RS.9,05,412/-. AGAINST THIS ORDER ASSESS EE PREFERRED APPEAL BEFORE THE LD.FIRST APPELLATE AUTHORITY. THE LD.C IT(A) NOTICED THAT THE DATE OF SERVICE OF THE ASSESSMENT ORDER ON THE ASSE SSEE WAS ON 26.12.2017 BUT ASSESSEE E-FILED THE APPEAL ONLY ON 30.3.2018, WHICH WAS BEYOND THE TIME LIMIT STIPULATED UNDER SECTION 249 OF THE INCOME TAX ACT. IN OTHER WORDS, THE APPEAL SHOULD HAVE BE EN FILED WITHIN 30 DAYS FROM THE DATE OF SERVICE I.E. ON 24.01.2018, A ND THEREFORE, THERE WAS DELAY OF 66 DAYS IN FILING THE APPEAL BEFORE TH E LD.FIRST APPELLATE AUTHORITY. THE REASON EXPLAINED BY THE ASSESSEE FO R DELAY IN FILING THE APPEAL BEFORE THELD.CIT(A) WAS THAT SHE WAS NOT AWA RE ABOUT THE PASSING OF THE ASSESSMENT ORDER, AND THE PROCEEDING S WHICH WERE GOING ON BEFORE THE AO. THE LD.CIT(A) WAS NOT SAT ISFIED WITH THE EXPLANATION OF THE ASSESSEE FOR DELAY IN FILING THE APPEAL, AND OBSERVED THAT THERE WAS NO REASONABLE AND SUFFICIENT CAUSE W HICH PREVENTED THE ASSESSEE TO FILE THE APPEAL WITHIN THE STIPULATED T IME. HE ACCORDINGLY REJECTED THE DELAY CONDONATION AND DISMISSED THE AP PEAL IN LIMINE . AGGRIEVED BY ORDER OF THE LD.CIT(A), IS NOW BEFORE THE TRIBUNAL. ITA NO.2224/AHD/2018 3 5. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE REITE RATED SUBMISSION MADE BEFORE LD.CIT(A). HE FURTHER SUBMITTED THAT I N THE CASE OF ASSESSEES RELATIVE VIZ. KUNTALAL MAHESH GANDHI FOR THE AY 2012-13 TO 2014-15, THE DELAY OF 870 DAYS BEEN CONDONED BY THE LD.CIT(A). HE PRAYED THAT SMALL DELAY OF 66 DAYS IN FILING THE APPEAL BE CONDONED AND MATTER BE REMITTED TO THE LD.CIT(A) FOR ADJUDICATIO N ON MERIT, BECAUSE THE ASSESSEE HAS GOOD CASE ON HAND AND HOPE TO SUCCEED THE SAME. THE LD.DR ON THE OTHER CONTENDED THAT THE ASSESSEE FAILED TO GIVE ANY PLAUSIBLE REASON BEFORE THE LD.CIT(A), AND THEREFORE, LD.CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 6. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. SUB-SECTION 5 OF SECTION 253 OF T HE ACT CONTEMPLATES THAT THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT FIL ING OF MEMORANDUM OF CROSS-OBJECTIONS AFTER EXPIRY OF RELE VANT PERIOD, IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSION SUFFICIENT CAUSE EM PLOYED IN THE SECTION HAS ALSO BEEN USED IDENTICALLY IN SUB-SECTI ON 3 OF SECTION 249 OF INCOME TAX ACT, WHICH PROVIDES POWERS TO THE LD. COMMISSIONER TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE C OMMISSIONER. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EX PRESSION HAS FALLEN FOR CONSIDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SUPREME COURT, THEN, HONBLE COURT WERE UNA NIMOUS IN THEIR CONCLUSION THAT THIS EXPRESSION IS TO BE USED LIBER ALLY. I MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HON BLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQ UISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353: ITA NO.2224/AHD/2018 4 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDO NED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUS TICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELI BERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESO RTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GRO UNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.1 7. IN THE LIGHT OF THE ABOVE, IF I CONSIDER EXPLANA TION OF THE ASSESSEE BEFORE THE LD.CIT(A), THEN IT WOULD REVEAL THAT THE ASSESSEE WAS NOT AWARE ABOUT THE ASSESSMENT ORDER OR ABOUT THE PROCEEDINGS AT THE LEVEL OF THE ASSESSMENT OFFICER. IMMEDIATELY, WHEN SHE CAME INTO THE KNOWLEDGE ABOUT THE ORDER, SHE E-FILED THE APPEAL, AND IN THE PROCE SS DELAY OF 66 DAYS WAS OCCURRED. TO MY MIND, LOOKING TO THE QUANTUM OF DE LAY OF 66 DAYS, AND ALSO OF THE FACT THAT ON SIMILAR SET OF FACTS, IN T HE CASE OF RELATIVE OF THE ASSESSEE VIZ. KUNTALAL MAHESH GANDHI FOR THE A.Y.20 12-13 TO 2014-15, THE ITA NO.2224/AHD/2018 5 DELAY OF 870 DAYS HAS BEEN CONDONED BY THE LD.CIT(A ), SUBSTANTIAL JUSTICE DEMANDS A PRACTICAL APPROACH ON THE PART OF THE LD. CIT(A) IN CONDONING THE DELAY. IT IS PERTINENT TO TAKE NOTE THAT BY MAKING DELAY IN FILING APPEAL BEFORE THE LD.CIT(A), THE ASSESSEE WOULD NOT ACHIEV E ANYTHING. THUS, SUCH DELAY CANNOT BE ADOPTED AS A STRATEGY. I CONDONE T HE IMPUGNED DELAY, AND SET ASIDE ORDER OF THE LD.CIT(A). I REMIT ALL OTHE R ISSUES TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION ON MERIT. NEEDLESS TO S AY, THE ASSESSEE WILL COOPERATE WITH THE CIT(A) IN THE APPELLATE PROCEEDI NGS, AND WILL NOT RESORT TO UNNECESSARY DELAY TACTICS. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST JUNE, 2021 AT AHMEDABAD. S D / - (RAJPAL YADAV) VICE-PRESIDENT