Ashish Shah, Kolkata V. I.T.O Wd - 37(3),kolkata, Kolkata

ITA 2312/KOL/2013

• Counselvise Citation: 231223514 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 154; 143(3)

Judgement Text

I.T.A. NO . 2312 / KOL ./20 1 3 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 2 312 / KOL / 20 1 3 ASSESSMENT YEAR : 200 9 - 20 10 ASHIS SHAH,.................... . ................ ........ . APPELLANT 22, RABINDRA SARANI, KOLKATA - 700 073 [PAN : A LGPS 0966 G ] - VS. - INCOME TAX OFFICER , ............................... . ...... ..... . RESPONDENT WARD - 37 ( 3 ), KOLKATA, AAYAKAR BHAWAN, POORVA, E.M. BYPASS, KOLKATA - 700 107 APPEARANCES BY: SHRI ANIL KOCHAR, ADVOCATE , FO R THE ASSESSEE S H RI RAJINDRA PRASAD , JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JU LY 16 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 30 , 201 5 O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCO ME TAX (APPEALS) - XXI V , KOLKATA IN APPEAL NO. 1103 / CIT(A) - XXI V/37(3)/12 - 13 DATED 06 . 08 .20 1 3 FOR THE ASSESSMENT YEAR 200 9 - 10 ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL: - ( 1 ) FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE ALLEGED GROUNDS. ( 2 ) FOR THAT THE LD. CIT(A) OUGHT TO HAVE PROPERLY APPRECIATED AND CONSIDERED THE SUBMISSIONS OF THE APPELLANT FOR CONDONATION OF DELAY IN SUBMISSION OF THE APPEAL AND OUGHT TO HAVE ACCEPTED THE SAME. ( 3 ) FOR THAT THE APPELLANT PRAYS THAT THE HON BLE T RIBUNAL SHALL BE PLEASED TO CONSIDER THE PRAYER OF THE APPELLANT FOR I.T.A. NO . 2312 / KOL ./20 1 3 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 2 OF 4 CONDONATION OF DELAY IN SUBMISSION OF APPEAL TO THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE LD. CIT(A) FOR ORDER ON MERITS OF THE CASE. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE DREW MY ATTENTION TO THE ORDER OF LD. CIT(APPEALS) AND STATED THAT THERE WAS DELAY IN SUBMISSION OF APPEAL BY 120 DAYS BEYOND THE DATE OF LIMITATION SPECIFIED IN SUB - SECTION (2) OF SECTION 249 OF THE ACT. LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE FI LED CONDONATION PETITION FOR DELAY BEFORE THE LD. CIT(APPEALS) STATING AS FOLLOWS: - MOST RESPECTFULLY, IT IS SUBMITTED THAT COPY OF THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 FOR THE AY 2009 - 10 DATED 29.12.2011 WAS RECEIV ED BY ME ON 06.01.2012. I FILED A PETITION UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 ON 10.01.2012 TO THE AO TO RECTIFY CERTAIN MISTAKES AS APPARENT FROM RECORDS. NOTHING WAS HEARD FROM THE AO AND IN THE MEANTIME THE AO FIXED THE HEARING IN RESPECT OF PROCEEDING INITIATED UNDER SECTION 271(1)(C) AND LEVIED THE PENALTY. HE HAS NOT TAKEN INTO COGNIZANCE THE PETITION SUBMITTED UNDER SECTION 154. I NOW SUBMIT APPEAL IN FORM NO. 35 AGAINST THE ORDER PASSED UNDER SECTION 143(3) BEFORE YOUR HONOUR U/S246A OF THE INCOME TAX ACT, 1961 AND WOULD REQUEST YOUR HONOUR TO KIND CONDONE THE DELAY IN SUBMISSION OF THE APPEAL AS I WAS ALWAYS UNDER THE BELIEF AND IMPRESSION THAT UNLESS AND UNTIL THE PETITION MOVED U/S. 154 IS DISPOSED OF NO PENALTY WILL BE LEVIED AS WELL AS THE INCOME DETERMINED WILL BE REVISED WHICH ULTIMATELY THE AO HAS NOT DONE. KINDLY CONDONE THE DELAY FOR SUBMISSION OF THE APPEAL AND FOR WHICH I SHALL BE HIGHLY OBLIGED. FOR YOU THIS ACT OF KINDNESS, WE SHALL REMAIN EVER GRATEFUL . 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF TAX AUTHORITIES BELOW. I FIND THAT AN APPLICATION UNDER SECTION 154 OF THE ACT WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ON 10.01.2012 TO RECTIFY CERTAIN MISTAKE S AS APPARENT FROM THE RECORDS. HOWEVER, NOTHING WAS HEARD FROM THE ORDER OF I.T.A. NO . 2312 / KOL ./20 1 3 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 3 OF 4 ASSESSING OFFICER AND IN THE MEANTIME THE ASSESSING OFFICER FIXED THE DATE OF HEARING IN RESPECT OF THE PROCEEDINGS INITIATED UNDER SECTION 271(1)(C) OF THE ACT AND LEVIED THE PEN ALTY. I ALSO FIND THAT THE ASSESSING O FFICER HAS NOT TAKEN INTO COGNIZANCE THE PETITION UNDER SECTION 154 OF THE ACT. THIS WAS THE VERY REASON DUE TO WHICH THERE WAS DELAY ON PART OF THE ASSESSEE TO FILE APPEAL BEFORE THE LD. CIT(APPEALS). 3.1. IT IS A F ACT OF THE CASE THAT THE ASSESSEE IS PROSECUTING ALTERNATIVE REMEDY THOUGH UNDER A WRONG ADVICE AND UNDER WRONG PROVISION BUT THERE WA S A SUFFICIENT OR REASONABLE CAUSE FOR CONDONATION OF DELAY BEFORE THE LD. CIT(APPEALS). I DIRECT THE LD. CIT(APPEALS) TO ADMIT THE APPEAL AND TO ADJUDICATE ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LOOKING TO THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY TO BOTH THE PARTIES , I SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THIS IS SUE TO THE FILE OF THE CIT(APPEALS) . THE LD. CIT(APPEALS) IS ALSO DIRECTED TO TAKE A CONSIDERED VIEW AFRESH IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISION RENDERED ON MERITS OF THE CASE. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN REASONABLE O PPORTUNITY OF BEING HEARD SO THAT THE ASSESSEE CAN REPLY ALL THE QUERIES WHATEVER THE LD. CIT(APPEALS) MAY DESIRE. 4 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 30 , 20 1 5 . SD/ - MAHAVIR SINGH ( JUDICIAL MEMBER) KOLKATA, THE 30 TH D AY OF JU LY , 201 5 COPIES TO : (1) ASHIS SHAH, 22, RABINDRA SARANI, KOLKATA - 700 073 I.T.A. NO . 2312 / KOL ./20 1 3 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 4 OF 4 (2) INCOME TAX OFFICER, WARD - 37(3) , KOLKATA, AAYAKAR BHAWAN, POORVA, E.M. BYPASS, KOLKATA - 700 107 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .