Vini Cosmetics Private Ltd., Ahmedabad V. The DCIT, Circle-4(1)(2), Ahmedabad

ITA 228/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8876 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Keywords: Right to appeal; Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NO: 228/AHD/2019 (ASSESSMENT YEARS: 2012-13) VINI COSMETICS PVT. LTD. JANKI HOUSE, 2 SUNRISE PARK SOCIETY, OPP. HIMALAYA MALL, DRIVE IN ROAD, BODAKDEV, AHMEDABAD-380054 PAN NO. AADCV1454B THE DCIT, CIRCLE-4(1)(2), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWIN SHAH & BHADRESH GANDHAKWALA, A.R. RESPONDENT BY : SHRI R. R. MAKWANA, SR. D.R. ( )/ ORDER DATE OF HEARING : 02-08-2021 DATE OF PRONOUNCEMENT : 03-08-2021 PER MAHAVIR PRASAD, J.M. 1. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. CIT(A)- ITA NO. 228/AHD/2019 . A.Y. 2012-13 2 8/10956/2016-17 ORDER DATED 18/01/2019 ARISING OUT OF ASSESSMENT ORDER DATED 17.03.2015. ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING BY NOT GRANTING THE CONDONATION OF DELAY ON THE GROUND THAT THE REASON GIVEN I.E. MISPLACEMENT OF ORDER BY ACCOUNTANT IS NOT SUFFICIENT IN AS MUCH AS THE REASON FOR DELAY IS SUFFICIENT AND THAT IT IS MISTAKE OF THE DEPARTMENT AND NOT BY THE ASSESSEE. 2. IN THIS CASE, ASSESSEE HAS TAKEN SOLELY GROUND THAT LD. CIT(A) HAS NOT CONDONED THE DELAY OF 17.5 MONTHS IN FILING OF APPEAL. THE REASON GIVEN BY SUCH DELAY WAS THAT ORDER WAS MISPLACED BY THE ACCOUNTS CLERK. LD. A.R. IN THE COURSE OF HEARING AFFIDAVIT OF ACCOUNTS CLERK WAS FILED BEFORE THE LOWER AUTHORITIES WHEREIN HE MENTIONED THAT DUE TO PRESSURE OF WORK HE FORGOT THE FILE IN WHICH THE ORDER WAS PLACED. BUT LD. CIT(A) DID NOT AGREE WITH THE CONTENTION OF THE A.O. 3. ON THE OTHER HAND, LD. A.R. CITED AN ORDER OF HONBLE GUJARAT HIGH COURT IN THE MATTER OF MAHENDRA AMBALAL PATEL VS. DCIT [2013] 36 TAXMANN.COM 12 WHEREIN MATTER WAS REMANDED BACK TO THE FILE OF THE ITAT BY THE HONBLE GUJARAT HIGH COURT AND RELEVANT GIST OF THE SAID JUDGMENT IS REPRODUCED HERE: ' WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, INCOME-TAX APPELLATE TRIBUNAL, WAS RIGHT IN LAW IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY OF 883 DAYS IN FILING APPEAL BEFORE THE APPELLATE TRIBUNAL AGAINST THE ORDER OF CIT(A) FOR A.Y. 2001-02 ?' 3. THE APPELLANT HAD PREFERRED AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) DATED 27.11.2007. SINCE THERE WAS DELAY OF 883 DAYS IN FILING THE APPEAL, THE APPELLANT ALSO PREFERRED APPLICATION FOR CONDONATION OF DELAY. IN SUCH APPLICATION, THE MAIN REASON INDICATED WAS THAT DUE TO THE ERROR AND OVERSIGHT OF AN OFFICE BOY NAMED SANJEEV MANUHAI RAMIBHAI. THE APPEAL COULD NOT BE PRESENTED THOUGH SO INSTRUCTED AT THE RELEVANT TIME. THE TRIBUNAL IN THE IMPUGNED ORDER DID NOT ACCEPT THE ASSESSEE'S EXPLANATION AND PROCEEDED TO DISMISS THE APPEAL MERELY ON DELAY. ITA NO. 228/AHD/2019 . A.Y. 2012-13 3 4. FROM THE IMPUGNED ORDER DATED 11.11.2011, WE NOTICE THAT THE TRIBUNAL WAS ALSO INFLUENCED BY THE FACT THAT THE ASSESSEE COULD NOT FILE THE AFFIDAVIT OF THE PERSON CONCERNED AND FURTHER THAT THERE WAS SOME DISCREPANCY IN THE NAME WHETHER HE WAS KNOWN AS SANJEEV OR SANJAY. 5. COUNSEL FOR THE APPELLANT SUBMITTED THAT THE DELAY WAS WHOLLY BEYOND THE CONTROL OF THE ASSESSEE. HE HAD INSTRUCTED THE CONCERNED CHARTERED ACCOUNTANT TO PRESENT THE APPEAL. SUCH APPEAL COULD NOT BE PRESENTED WITHIN TIME DUE TO OVERSIGHT OF THE OFFICE BOY. THOUGH AT THE TIME OF HEARING OF THE APPLICATION AFFIDAVIT WAS NOT FILED; HOWEVER BEFORE THE DECISION OF THE TRIBUNAL, SUCH AFFIDAVIT WAS FILED. HE SUBMITTED THAT THE TRIBUNAL OUGHT TO HAVE TAKEN SUCH AFFIDAVIT INTO ACCOUNT WHILE DECIDING THE APPLICATION. 6. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO REQUEST THE TRIBUNAL TO RECONSIDER THE ISSUE AFTER TAKING INTO ACCOUNT THE AFFIDAVIT OF THE OFFICE BOY, THE TRIBUNAL. ORDINARILY, COURTS VIEW UNINTENTIONAL DELAY LIBERALLY. OF COURSE, IF IT IS POINTED OUT THAT THE LITIGANT HAD EITHER BEEN WHOLLY LETHARGIC OR TARDY IN PURSUING HIS CAUSE OR THAT HE HAD INTENTIONALLY ABANDONED HIS RIGHT OF APPEAL, CONDONATION OF DELAY WOULD NOT BE GRANTED AS A MATTER OF COURSE. HOWEVER, IF SOME PLAUSIBLE EXPLANATION IS RENDERED SHOWING THAT THE ASSESSEE THOUGH INTENDED TO PURSUE THE APPEAL, WAS PREVENTED FROM DOING SO FOR GOOD AND SUFFICIENT REASONS, ORDINARILY THE COURTS PREFER TO DECIDE THE CAUSE ON MERITS RATHER THAN ON TECHNICAL QUESTIONS. 7. BE THAT AS IT MAY, IN THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE TRIBUNAL SHOULD HAVE TAKEN INTO ACCOUNT THE AFFIDAVIT OF THE OFFICE BOY WHILE WAS PRESENTED BY THE APPELLANT AFTER THE HEARING WAS OVER. MINOR DISCREPANCY IN THE NAME I.E. SANJAY OR SANJEEV SHOULD NOT BE FATAL TO THE MAIN CAUSE. 8. UNDER THE CIRCUMSTANCES, QUESTION IS ANSWERED IN FAVOUR OF THE APPELLANT. PROCEEDINGS ARE REMANDED TO THE TRIBUNAL TO RECONSIDER THE ISSUE AFTER TAKING INTO ACCOUNT THE AFFIDAVIT OF THE CONCERNED PERSON. 9. CONSIDERING THE EXTENT OF DELAY, THE APPELLANT SHALL DEPOSIT COST OF RS. 5,000/- WITH THE STATE LEGAL SERVICE AUTHORITY. APPEAL IS DISPOSED OF ACCORDINGLY 4. SINCE LD. CIT(A) HAS NOT CONSIDERED AFFIDAVIT FILED BY THE ACCOUNTS CLERK AND HAS NOT PASSED ANY SPEAKING AND REASONED ORDER. 5. THUS, RESPECTFULLY FOLLOWING THE AFORESAID JURISDICTIONAL HIGH COURT JUDGMENT, WE SET ASIDE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO PASS AN ORDER ON MERIT OF THE CASE ITA NO. 228/AHD/2019 . A.Y. 2012-13 4 SUBJECT OF THE CONDITION THAT ASSESSEE SHALL DEPOSIT RS. 5,000/- AS A COST WITH THE DEPARTMENT WITHIN 60 DAYS FROM THE RECEIPT OF THIS ORDER. THEREAFTER LD. CIT(A) WILL PROCEED WITH THE APPEAL. 6. LD. A.R. HAS AGREED TO PAY THE AFORESAID COST. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 03- 08- 2021 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 03/08/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD