PAYAL ASHOK PURSWANI, MUMBAI V. ASST CIT CIR 18(1), MUMBAI

ITA 232/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79321 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIKANT NAMDEO
• Keywords: Period of limitation; Reasonable cause; Corroborative evidences; Time period of passing order; Condonation of delay; Revised return
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO. 232/MUM/2013 (ASSESSMENT YEAR: 2007-08) SMT. PAYAL ASHOK PURSWANI SHRI PRAKASH JHUNJHUNWALA CHARTERED ACCOUNTANT 5, JOLLY BHAWAN NO.2 7, NEW MARINE LINES CHURCHGATE MUMBAI-400 020. VS. ASTT. COMMISSIONER OF INCOME TAX, CIRCLE-18(1) MUMBAI. (APPELLANT) (RESPONDENT) P ERMANENT ACCOUNT N O. : AAGPP 4 979 H ASSESSEE BY : SHRI PRAKASH JHUNJHUNWALA REVENUE BY : SHRI SHRIKANT NAMDEO DATE OF HEARING : 08/07/2014 DATE OF PRONOUNCEMENT : 16/07/2014 O R D E R PER VIJAY PAL RAO, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24.02.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2007- 08. THERE IS A DELAY OF 234 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY AND SUPPORTED THE SAME BY AFFI DAVIT. 2. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR O N THE CONDONATION OF DELAY AND CAREFULLY PERUSED THE REASONS EXPLAINE D IN THE AFFIDAVIT FILED BY THE ASSESSEE. IT HAS BEEN STATED IN THE AFFIDAVI T THAT THE ASSESSEE IS A ITA NO.232/M/13 AY:07-08 2 UN-EDUCATED WIDOW AND WAS NOT AWARE OF THE LEGAL PR OCEDURE FOR FILING THE APPEAL AFTER THE DEATH OF HER HUSBAND. THE SON OF THE ASSESSEE WAS TAKING CARE OF HER FOR SOME TIME BUT SUBSEQUENTLY D ESERTED THE ASSESSEE AND DID NOT TAKE CARE OF THE INCOME TAX MATTERS ALS O. THE AVERMENT MADE IN THE AFFIDAVIT STATES THAT THE ASSESSEE IS SUFFER ING FROM VARIOUS DISEASES SINCE LAST 15 YEARS AND WAS BED-RIDDEN AND WAS HOSP ITALIZED SEVERAL TIMES. THE ASSESSEE HAS FILED MEDICAL REPORT ALONG WITH AFFIDAVIT. AS PER MEDICAL CERTIFICATE FILED ON RECORD THE ASSESSEE WA S ADVISED BED REST FOR COUPLE OF MONTHS AND ALSO ADVISED TO REFRAIN FROM T AKING ANY MENTAL OR PHYSICAL STRESS. AFTER CONSIDERING THE FACTS AND CI RCUMSTANCES OF THE CASE AND GOING THROUGH MEDICAL HISTORY AND RECORD OF THE ASSESSEE WE ARE SATISFIED THAT THE ASSESSEE HAD REASONABLE CAUSE FO R NOT FILING THE APPEAL WITHIN THE STIPULATED LIMITATION PERIOD. IT IS SETT LED PROPOSITION OF LAW THAT WHILE DECIDING CONDONATION OF DELAY COURT SHOULD TA KE LENIENT VIEW AND A LIBERAL APPROACH FOR CONSIDERING THE SUFFICIENCY OF CAUSE. IT IS ALWAYS A QUESTION WHETHER THE EXPLANATION AND REASONS FOR CO NDONATION WERE BONAFIDE OR WAS MERELY A DEVICE TO COVER AN ULTERIO R PURPOSE TO SAVE LIMITATION IN AN UNDERHANDED WAY. WHEN IT IS BROUGH T ON RECORD THAT THE PARTY SEEKING CONDONATION HAS NOT ACTED IN A MALAFI DE MANNER BUT THE REASONS EXPLAINED ARE FACTUALLY CORRECT THEN A JUST ICE ORIENTED APPROACH HAD TO BE TAKEN WHILE DECIDING THE MATTER OF CONDON ATION OF DELAY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE OPPOSED TO EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE P REFERRED. IN THE CASE IN HAND THE ASSESSEE HAS EXPLAINED THE REASONS FOR DEL AY WITH SUPPORTING EVIDENCE IN THE SHAPE OF MEDICAL RECORD AND CERTIFI CATE. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE CONDONE THE DELAY OF 235 DAYS IN FILING THE APPEAL. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL :- ITA NO.232/M/13 AY:07-08 3 1.0 A HUMBLE PRAYER IS MADE TO CONDONE THE DELAY OF 235 DAYS BEING CAUSED UNDER THE BONAFIDE REASONS OF SERIOUS SICKNESS AND OTHER COMPELLING CIRCUMSTANCES BEYOND CONTROL OF TH E APPELLANT; 2.0 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LD. CIT(A) ERRED IN NOT ALLOWING APPELLANTS CLAIM OF EXEMPTIO N U/S. 54 OF RS.13,00,000/- MADE FOR THE 1 ST TIME DURING COURSE OF 1 ST APPEAL UNDER THE REASON THAT THE FRESH CLAIM CANNOT BE MAD E WITHOUT FILING A REVISED RETURN OF INCOME; 3.0 THE LD CIT(A), ON ADOPTING THE PRINCIPLE OF CON SISTENCY, OUGHT TO HAVE ALLOWED THE EXEMPTION U/S 54 OF RS 13,00,00 0/- AS LD CIT(A) ALLOWED APPELLANTS RELATED CLAIM OF LONG T ERM CAPITAL GAIN RAISED FOR THE 1 ST TIME DURING COURSE OR OF 1 ST APPEAL. 4. IN THIS APPEAL THE ONLY GRIEVANCE OF THE ASSESSEE O N MERITS IS DENIAL OF EXEMPTION UNDER SECTION 54 IN RESPECT OF CAPITAL GAIN INVESTED IN THE PRESCRIBED ASSET. CIT(A) HAS DENIED THE CLAIM OF TH E ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT CLAIMED THE EXEMPT ION IN THE REVISED RETURN OF INCOME BUT SHE HAS CLAIMED THE EXEMPTION ONLY IN THE REVISED COMPUTATION OF INCOME. IT IS PERTINENT TO NOTE THAT THE LIMITATION FOR ENTERTAINING A FRESH CLAIM OTHER THAN THE REVISED R ETURN IS ONLY FOR THE JURISDICTION OF THE AO AND NOT OF THE APPELLATE AUT HORITY AS IT IS CLEAR FROM THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. (204 CTR 182) . FURTHER, THE HON'BLE SUPREME COURT IN CASE OF NTPC VS. CIT (229 ITR 383) HAS HELD THAT A FRESH PLEA/CLAIM CAN BE CONSIDERED EVEN AT THE APPELLATE STAGE IF FOR ADJUD ICATION OF THE SAME NO NEW FACTS ARE TO BE INVESTIGATED. ACCORDINGLY WE AR E OF THE VIEW THAT THERE WAS NO EMBARGO IN ENTERTAINING A LEGAL PLEA BY CIT( A) WITHOUT FILING REVISED RETURN. CIT(A) HAS NOT GONE INTO THE MERITS OF THE ISSUE AND REFUSED TO ADMIT THE SAME AS IT WAS NOT CLAIMED BEF ORE THE AO. SINCE THE CLAIM HAS NOT BEEN ADJUDICATED BY CIT(A) ACCORDINGL Y, WE ADMIT THIS ISSUE AND WE SET ASIDE THE SAME TO THE RECORD OF CI T(A) FOR ADJUDICATION AS PER LAW. ITA NO.232/M/13 AY:07-08 4 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY, 2014. SD/- SD/- (D. KARUNAKAR RAO) ACCOUNTANT MEMBER (VIJAY PAL RAO ) JUDICIAL MEMBER MUMBAI, DATED: 16/07/2014. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.