HIMGIRI CO OP HOUSING SOCIETY LTD, MUMBAI V. ITO 19(1)(5), MUMBAI

ITA 2320/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4516 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL J
• Keywords: Condonation of delay

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.2320/MUM/2015 ASSESSMENT YEAR:2009-10 HIMGIRI CO-OP. HOSUING SOCIETY LTD. 755/6, PEDDAR ROAD, MUMBAI-400026 / VS. ITO-19(1)(5), ROOM NO.215, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD MUMBAI-400007 / ASSESSEE / REVENUE P.A. NO. AAAAH0860N $ % & / ASSESSEE BY SHRI BIREN GABHAWALA $ % & / REVENUE BY SHRI A.K.DHONDIAL JCIT-DR / DATE OF HEARING 04/01/2016 & / DATE OF ORDER: 04/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 09/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE GROUND RAISED IN THIS APPEAL PERTAINS TO HOLDIN G THAT THE AMOUNT OF RS.4,41,003/-, BEING THE VOLUNTARY CONTRI BUTION RECEIVED FROM THE MEMBERS OF THE COOPERATIVE HOUSIN G SOCIETY WAS NOT EXEMPT FROM TAXATION IGNORING THE PRINCIPLE OF 2 MUTUALITY, WHICH IS APPLICABLE TO THE SAID RECEIPTS AND FURTHER THOUGH THE AMOUNT WAS INADVERTENTLY OFFER T O TAX, IN VIEW OF THE EARLIER ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HOLDING THAT THE SAME WAS NOT EXEMPT FROM TAXATION, IGNORING THE PRINCIPLE OF MUTUALITY. 2. DURING HEARING OF THIS APPEAL, I HAVE HEARD SHR I BIREN GABHAWALA, LD. COUNSEL FOR THE ASSESSEE AND S HRI A.K. DHONDIAL, LD.DR. BEFORE ADVERTING FURTHER, I FIND T HAT THERE IS DELAY OF 468 DAYS IN FILING THE APPEAL, BY THE ASS ESSEE, BEFORE THIS TRIBUNAL. THE ASSESSEE HAS FILED AN APPLICATIO N, SUPPORTED BY AN AFFIDAVIT, FOR CONDONATION OF DELAY , ON THE REASONS STATED THEREIN. THE LD. COUNSEL POINTED OUT THAT THE MANAGER OF THE SOCIETY DID NOT BRING TO THE NOTICE OF THE SECRETARY OF THE SOCIETY THAT ANY NOTICE HAS BEEN R ECEIVED AND ONLY WHEN NOTICE WAS RECEIVED FOR LEVYING PENALTY U /S 271(1)(C) OF THE ACT, THE ASSESSEE WAS INFORMED THA T APPEAL WAS FILED ON 16/01/2012 BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). IT WAS POINTED OUT THAT SINCE RE EFFORTS WERE MADE TO LOCATE THE ORDER OF THE LD. COMMISSION ER OF INCOME TAX (APPEALS), WHICH CAUSED DELAY AND ULTIMA TELY THE APPEAL WAS FILED. IT WAS EXPLAINED THAT THE DELAY W AS UNINTENTIONAL AND NO USEFUL PURPOSE WILL BE SERVED IN FILING THE APPEAL LATE. ON THE OTHER HAND, THE LD. DR, OPP OSED THE CONDONATION OF DELAY BY EXPLAINING THAT EACH DAY DE LAY HAS TO BE EXPLAINED BY THE ASSESSEE. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, AFFIDAVIT FILED BY THE 3 ASSESSEE AND THE ATTENDANT CIRCUMSTANCES AS HAS BEE N EXPLAINED IN THE APPLICATION. I AM SATISFIED WITH T HE EXPLANATION OF THE ASSESSEE THAT THE DELAY WAS NOT DELIBERATE AND ULTIMATE AIM IS THAT NO PERSON SHOULD CONDEMNED UNHEARD, MORE SPECIFICALLY WHEN THE TECHNICALITIES ARE PITTED AGAINST THE SUBSTANTIAL CAUSE OF JUSTICE. MY VIEW F IND SUPPORT FROM THE CELEBRATED DECISION FROM HONBLE APEX COUR T IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 WHEREIN, IT WAS OPINED THAT WHEN TECHNICAL CONSIDER ATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JU STICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISP UTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT C AUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELA STIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANN ER, WHICH SUB-SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO N ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DE LAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHO ULD RECEIVE 4 LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE . THE HONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER :- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 196 3 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO P ARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COUR TS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERC OLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.2. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUST ICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCT ION. IN VIEW OF THE AFORESAID DISCUSSION, THE DELAY IS CONDONED. 2.3. SO FAR AS, THE MERITS OF THE APPEAL IS CONCER NED, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT FOR A SSESSMENT YEAR 2005-06, THE TRIBUNAL VIDE ORDER DATED 15 TH OCTOBER, 2010, (ITA NO.520/MUM/2010) IN THE CASE OF ASSESSEE ITSELF 5 DISCUSS THE ISSUE IN A IDENTICAL SITUATION AND FOLL OWING THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SINGH CO-OPRATING HOUSING SOCIETY VS ITO 317 ITR 47 (BOM.), SU PRABHAT COOPERATIVE HOUSING SOCIETY LTD. VS ITO (ITA NO.1972 OF 2009, ORDER DATED 01/10/2009, AS WELL AS SHYAM HOUSING SOCIETY LTD. VS CIT (MENTIONED IN PARA 7 OF THE ORDER OF THE TRIBUNAL) HELD THAT THE PRINCIPLE OF MUTUALI TY WILL BE APPLY TO THE RECEIPTS AND DISMISS THE APPEAL OF THE REVENUE. FURTHER RELIANCE WAS PLACED UPON THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT IN CIT VS DARBHANGA MANSI ON CHS LTD. (ITA NO.1474 OF 2012) ORDER DATED 18/12/2014. THE LD. DR, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUG NED ORDER. 2.4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE SUBMISSIONS OF THE ASSESSEE AND WITHOUT GOING INTO MUCH DELIBERATION, I FIND MERIT IN THE SUBMISSIONS OF TH E ASSESSEE. AS PER JUDICIAL DISCIPLINE, THE LD.CIT(A) IS EXPECT ED TO FOLLOW THE JUDICIAL PRONOUNCEMENT FROM ANY HIGHER FORUM I. E. ITAT AND HONBLE JURISDICTIONAL HIGH COURT, THEREFORE, DIRECT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDE R THE SUBMISSIONS OF THE ASSESSEE IN THE LIGHT OF THE AFO RESAID DECISIONS ALONG WITH OTHERS, (IF ANY CITED BEFORE T HE LD. FIRST APPELLATE AUTHORITY, DURING HEARING BEFORE HIM/HER) AND DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM 6 ALONG WITH CASE LAWS. THUS, THE APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 04/01/2016. SD/- (JOGINDER SI NGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 04/01/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI