SRI DEBASISH ROY CHOWDHURY, Kolkata V. A.C.I.T.-Circle-52, Kolkata, Kolkata

ITA 2279/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9315 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 13-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 20-08-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL JCITSRDR
• Assessee Lawyers: MRS SASWATI MITRA DUTTA
• Keywords: Unexplained expenditure; Principle of natural justice; Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI N.V.VASUDEVAN, JM & DR. A.L.SAINI, AM ./ ITA NO.2279/KOL/2013 ( / ASSESSMENT YEAR:2007-2008) SRI DEBASISH ROY CHOWDHURY, 46E/1, NEW BALLYGUNGE ROAD, KOLKATA-39 VS. ACIT, CIRCLE-52, KOLKATA 2, GARIAHAT ROAD(SOUTH), KOLKATA-68 ./ ./PAN/GIR NO.: ADIPR 7212 A ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : MRS. SASWATI MITRA(DUTTA), ADVOCAT E REVENUE BY : SHRI RAJAT KUMAR KUREEL, JCIT,SRDR / DATE OF HEARING : 07/03/2017 /DATE OF PRONOUNCEMENT 07/03/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO THE ASSESSMENT YEAR 2007-2008 IS DIRECTED AGAINST THE O RDER PASSED BY LD. CIT(A)-XXXIII, KOLKATA IN APPEAL NO.78/CIT(A)-XXXII I/ACIT,CIRCLE- 52,KOL/10-11, DATED 21.03.2013, WHICH IN TURN ARISE S OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT ), DATED 31.12.2009. 2. THE SAID CAPTIONED APPEAL FILED BY THE ASSESSEE IS TIME BARRED BY 10 DAYS. THE ASSESSEE FILED THE PETITION FOR CONDON ATION OF DELAY AND EXPRESSED THE REASONS OF DELAY. AFTER VERIFICATION OF PETITION WE FOUND THAT THERE WAS A REASONABLE CAUSE FOR 10 DAYS DELAY IN F ILING THE APPEAL. EVEN LD DR DID NOT OBJECT TO CONDONE THE DELAY. THEREFOR E, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR AY.2007-08 ON 31.10.2007 S HOWING A TOTAL INCOME ITA NO.2279/13 SHRI DEBASHISH ROY CHOWDHURY 2 OF RS.33,93,711/-. THE RETURN WAS PROCESSED U/S.143 (1) OF THE ACT AND SUBSEQUENTLY ASSESSEES CASE WAS SELECTED FOR SCRUT INY U/S.143(3) AND THE AO COMPLETED THE ASSESSMENT BY MAKING VARIOUS A DDITIONS. 4. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS DISMISSED THE APPEAL OF THE ASSESSEE BECAUSE THE ASSESSEE HAS NOT FILED APPROPRIATE DOCU MENTS TO CONDONE THE DELAY IN FILING THE APPEAL. LD. CIT(A) OBSERVED THAT THERE WAS A DELAY IN FILING THE APPEAL ABOUT ONE YEAR AND THE ASSESSE E HAS NOT EXPLAINED SATISFACTORILY THE REASONS FOR DELAY IN FILING THE APPEAL. THEREFORE, THE LD. CIT(A) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL AS NOT BEING ADMITTED OBSERVING THE FOLLOWINGS :- 3. I HAVE CONSIDERED FACTS OF THE CASE. AS PER PROV ISIONS OF SECTION 249(2) OF I.T.ACT, 1961, AN APPEAL AGAINST ASSESSME NT ORDER IS REQUIRED TO BE FILED WITHIN 30 DAYS OF SERVICE OF T HE DEMAND NOTICE. SUB-SECTION (3) OF THAT SECTION PROVIDES THAT COMMI SSIONER (APPEAL) MAY ADMIT AN APPEAL AFTER EXPIRATION OF THE SAID PE RIOD IF HE SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE F OR NOT PRESENTING THE APPEAL WITHIN THAT PERIOD. WHILE IT IS TRUE, TH AT THE POWER OF CONDONING DELAY SHOULD BE EXERCISED IN A LIBERAL MA NNER, FOR THAT THE BASIC CONDITION, THAT SUFFICIENT CAUSE FOR DELA Y SHOULD BE SATISFACTORILY EXPLAINED, HAS TO BE MET. THE PERIOD FOR FILING AN APPEAL CANNOT BE EXTENDED SIMPLY BECAUSE THE APPELL ANT'S CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVO LENCE TO THE PARTY SEEKING RELIEF. IN CONDONING DELAY THE APPELL ATE AUTHORITY SHOULD BE SATISFIED THAT THERE HAD BEEN DUE DILIGEN CE ON THE PART OF APPELLANT AND THE LATTER WAS NOT GUILTY OF NEGLIGEN CE WHATSOEVER. REFERENCE IN THE MATTER CAN BE DRAWN TO THE DECISIO N IN THE CASE OF PT.KRISHNA RAO D PHALKE VS. TRIMBAK AI.R 1938 NAG 1 56 AND BALDEO LAL ROY VS. STATE OF BIHAR (1960) 11 STC 104 (PAT.) IT HAS ALSO BEEN HELD IN A NUMBER OF CASES THAT THE APPELL ANT HAS TO SHOW SUFFICIENT CAUSE FOR NOT FILING APPEAL ON THE LAST DATE OF LIMITATION AND MUST EXPLAIN THE DELAY, DAY AFTER DAY, TILL THE ACT UAL FILING. IN OTHER WORDS, THE WHOLE OF DELAY MUST BE EXPLAINED. SOME O F SUCH CASES ARE RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361 , SITARAM RAMCHARAN VS. M.N.NAGARSHANA AIR 1960 SC 260, SOORA JMULL NAGARMAL VS. GOLDEN FIBRE & PRODUCTS AIR 1969 CAL. 381, BHAKTIPADA MAJHI VS. SOC AIR 1971 CAL 204. AS DISCU SSED EARLIER, IN THE APPELLANT'S CASE, WHILE HIS ILLNESS EXPLAINS PART OF DELAY, THE ITA NO.2279/13 SHRI DEBASHISH ROY CHOWDHURY 3 INORDINATELY LONG PERIOD BEFORE HIS HOSPITALIZATION AND AFTER HIS DISCHARGE HAS NOT BEEN JUSTIFIED. 4. CONSIDERING THESE FACTS, I AM OF THE VIEW THAT T HE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH SUFFICIENT CAUSE FOR DEL AY OF ABOUT ONE YEAR IN FILING OF APPEAL. THEREFORE, THE DELAY IS N OT BEING CONDONED AND THE APPEAL IS NOT BEING ADMITTED. 5. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT THE APPELLATE AUTHORITY WITHOUT CONSID ERING THE CONDONATION PETITION DISALLOWED THE APPEAL WHICH IS THE VIOLATION OF NATURAL JUSTICE. 2. FOR THAT THE ADDITION OF BACK YEAR LIABILITY RE LATED TO THE SUNDRY CREDITORS OF RS.15, 04,845/- IS BAD IN LAW. THE LIA BILITY IS RELATED TO THREE YEARS BACK. WITHOUT ADDING THE LIABILITY I N THE PARTICULAR YEAR, THE ADDITION IN THIS YEAR IS ARBITRARY IN MAN NER. 3. FOR THAT THE APPLICATION OF G. P. @ 39.12% ON U NDISCLOSED PURCHASE OF RS.2, 61,940/- IS BAD IN LAW. 4. FOR THAT THE ADDITION OF EXCESS PURCHASE OF (RS . 16, 49. 075.00 - RS. 9, 79, 493.00) = RS.669.582/- IS NOT TENABLE IN THE EYE OF LAW. 5. FOR THAT RS.49, 920/- WAS ADDED AS UNRECONCILED PURCHASE FROM LEATHER CRAFT (INDIA) WITHOUT CONSIDERING THE EXPLA NATION OF THE ASSESSEE IS ARBITRARY. THIS RS.49,920/- WAS RELATED TO THE DAMAGED GOODS. HENCE, THE ASSESSEE DID NOT TAKE IT IN HIS PURCHASE. 6. UNEXPLAINED EXPENDITURE IN PURCHASE FROM 'M/S. PENTEK INTERNATIONAL' OF RS.68, 841/- IS UNJUSTIFIED & BAD IN LAW. 7. UNEXPLAINED EXPENDITURE IN PURCHASE FROM 'M/S. RUPA ENTERPRISE' OF RS. 43,200/- IS BAD IN LAW. 8. FOR THAT THE APPELLANT SEEKS KIND PERMISSION TO RAISE NEW CONTENTIONS AND GROUNDS BEFORE THE DISPOSAL OF THE APPEAL PETITION. 6. LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE LD. CIT(A) DID NOT CONSIDER THE REQUEST OF THE ASSESSEE FOR CO NDONATION OF DELAY IN FILING THE APPEAL AND HE DISMISSED THE APPEAL WITHO UT HEARING ON MERITS, ITA NO.2279/13 SHRI DEBASHISH ROY CHOWDHURY 4 WHICH IS IN VIOLATION OF NATURAL JUSTICE. LD. AR FO R THE ASSESSEE HAS SUBMITTED BEFORE US THAT ASSESSEE WAS SUFFERING FRO M SEVERE COMPRESSION FRACTURE OF LUMBER VERTEBRA AND HE COUL D NOT WALK AND HAS TO BE BEDRIDDEN FOR A LONG TIME AT LEAST 4 MONTHS. IN ADDITION TO THIS, THERE IS ANOTHER CERTIFICATE FROM THE DOCTOR STATING THAT TH E ASSESSEE WAS SUFFERING FROM RESTLESS & CHEST PAIN DUE TO HYPERTENSION & RE CURRENT ATTACH OF LOW BACK PAIN DUE TO SEVERE INJURY. BECAUSE OF THE PROL ONGED DISEASE THE ASSESSEE COULD NOT FILE THE APPEAL BEFORE THE CIT(A ) AND HE COULD NOT APPROACH THE ADVOCATES AND CAS ALSO. IN ADDITION TO THIS, HE TOOK THREE MONTHS MORE TO RECOVER FROM HIS ILLNESS. THIS WAY, THE ENTIRE ONE YEAR DELAY IN FILING THE APPEAL HAS BEEN SATISFACTORILY EXPLAINED BEFORE THE CIT(A). HOWEVER, THE COUNSEL WHO APPEARED BEFORE TH E LD. CIT(A) COULD NOT PRODUCE THE MEDICAL CERTIFICATE OF THE DOCTOR W HICH THE ASSESSEE OBTAINED LATER ON. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS PR IMARILY REITERATED THE STAND TAKEN BY THE LD. CIT(A) BUT EVEN AGREED T O SEND THE MATTER BACK TO THE FILE OF CIT(A) FOR READJUDICATION AS THE RIG HTS AND DUTIES OF THE ASSESSEE HAS NOT BEEN ADJUDICATED BY THE LD. CIT(A) . 8. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF THE ASSESSEE, AS THE PROPOSITION CANVASSED BY LD. AR FOR THE ASSE SSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE AND THE CASE LAWS C ITED BY HIM ABOVE. AS LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT ASSESS EE HAS BEEN SUFFERING FROM ILLNESS SINCE LAST ONE YEAR AND OBTAINED THE C ERTIFICATES FROM THE ITA NO.2279/13 SHRI DEBASHISH ROY CHOWDHURY 5 DOCTOR AND THE PERIOD OF EIGHT MONTHS HAS BEEN EXPL AINED PROPERLY AND THEREAFTER HE TOOK THREE MONTHS TIME TO RECOVER FUL LY FROM THE ILLNESS, THEREFORE, HE COULD NOT APPROACH THE ADVOCATE/CA TO FILE THE APPEAL BEFORE LD. CIT(A). LD. AR FOR THE ASSESSEE HAS EXPL AINED THE REASONS OF DELAY IN FILING THE APPEAL BEFORE LD. CIT(A) EVEN T HE LD. DR FOR THE REVENUE HAS ALSO AGREED THAT THE ASSESSEE HAS EXPLAINED THE REASONS OF DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) IN A SATISF ACTORILY MANNER. THEREFORE, CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, WE AR E OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) WITH THE DIRECT ION TO READJUDICATE THE ISSUE ON MERITS AFTER GIVING AN APPROPRIATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07/ 03/2017. SD/ - (N.V.VASUDEVAN) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 07/03/2017 '#$%& /PRAKASH#MISHRA ,SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) $ % , / ITAT, KOLKATA 1. / THE APPELLANT-SHRI DEBASHISH ROY CHOWDHURY 2. / THE RESPONDENT.- ACIT, CIRCLE-52/KOLKATA 3. 0 ( ) / THE CIT(A), KOLKATA. 4. 0 / CIT 5. 12 3 4456 , 56 , / DR, ITAT, KOLKATA 6. 3 78 / GUARD FILE. 1 4 //TRUE COPY//