Shri Shailendra Verma, Lucknow V. Income Tax Officer- 3(4), Lucknow

ITA 245/LKW/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4203 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Condonation of delay
• Section: 80C; 143(3)

Judgement Text

I.T.A. NO.245/LKW/2018 ASSESSMENT YEAR:2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.245/LKW/2018 ASSESSMENT YEAR:2012-13 SHRI SHALIENDRA VERMA, L-4/M/81, SECTOR-M, ALIGANJ SCHEME, LUCKNOW. PAN:ADSPV 2453 P VS. INCOME TAX OFFICER-3(4), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-I, LUCKNOW, DATED 27/09/2016 PERTAINING TO A SSESSMENT YEAR 2012- 2013. 2. AT THE OUTSET, LEARNED A. R. INVITED OUR ATTENTI ON TO THE FACT THAT THERE HAS BEEN A DELAY OF 419 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS SUBMITTED THE CONDONATION APPLICATION DATED 02/04/2 018 DULY SUPPORTED BY SWORN IN AFFIDAVIT STATING THEREIN AS UNDER: I, SHAILENDRA VERMA AGED ABOUT 34 YEARS S/O SRI SH ANKAR DAYAL R\O L-4M/81, SECTOR M, ALIGANJ SCHEME, LUCKNO W THE DEPONENT DO HEREBY SOLEMNLY AFFIRM ON OATH AS UNDER :- APPELLANT BY SHRI DWIJENDRA MISHRA, ADVOCATE RESPONDENT BY S HRI C. K. SINGH, D. R. DATE OF HEARING 31/10/2018 DATE OF PRONOUNCEMENT 31 / 10 /201 8 I.T.A. NO.245/LKW/2018 ASSESSMENT YEAR:2012-13 2 1. THAT THE DEPONENT HIMSELF IS THE APPELLANT IN T HE ABOVE NOTED APPEAL AND AS SUCH IS FULLY CONVERSANT WITH F ACTS DEPOSED HEREINAFTER:- 2. THAT THE DEPONENT ONLY CAME TO KNOW ABOUT TH E APPELLATE ORDER IN FEBRUARY, 2017. 3. THAT THE DEPONENT WAS IN HIS VILLAGE IN THE MONTH OF DECEMBER ALONG WITH HIS FATHER AND ONLY THE MOTHER OF THE DEPONENT WAS IN THE HOUSE WHEN THIS APPELLATE ORDER CAME THROUGH REGISTERED POST. 4. THAT THE MOTHER OF THE DEPONENT RECEIVED ON 12-12-2016 AND SHE BEING ILLITERATE COULD NOT UNDERSTAND ABOUT THE ORDER. SHE AFTER RECEIVING THE SAME FORGOT TO GIVE IT TO T HE DEPONENT. 5. THAT DEPONENT ONE DAY WHILE SEARCHING ANOTHER TH ING FOUND THIS ORDER IN THE MONTH OF FEBRUARY, 2017. 6. THAT THE DEPONENT CONTACTED TO HIS COUNSEL WHO W AS CONDUCTING HIS CASE BEFORE THE COMMISSIONER INCOME TAX (APPEAL) AND DEMANDED FEES MORE THAN EARLIER FEES F OR FILING REVIEW OF THE IMPUGNED ORDER. THE DEPONENT WAS NOT HAVING SUFFICIENT FUND AND IT IS ALSO MENTIONED THAT THE B HABHI OF THE DEPONENT HAS SEVERELY INJURED AND WAS HOSPITALIZED FOR ABOUT 1 MONTH AND THE DEPONENT BEING ONLY MALE MEMBER WAS W ORKING AFTER HER AS TIMARDAR. 7. THAT THE DEPONENT AFTER LOSS IN THE SHARE TRADIN G IS UNEMPLOYED AND IS ALMOST DEPENDENT ON HIS FATHER FO R HIS LIVELIHOOD REQUESTED THE FATHER SRI SHANKAR DAYAL T O ARRANGE MONEY WHICH IS REQUIRED TO BE INCURRED IN FILING PR ESENT APPEAL BEFORE LEARNED TRIBUNAL BUT HIS FATHER SHOWS HIS IN CAPACITY FOR PROVIDING MONEY REQUIRED TO FILE BUT HE ASSURED THA T AFTER CROP IN MARCH 2018 AND THEN ONLY I CAN GIVE YOU MONEY FO R FILING THE SAME AS HE HIMSELF IS A RETIRED EMPLOYEE HAVING NO PENSION. 8. THAT AFTER ARRANGING SUFFICIENT MONEY FOR FILING THIS APPEAL IN MARCH AFTER SALE OF MUSTERED CROP THE DEPONENT C ONTACTED HIS PRESENT COUNSEL SRI DWIJENDRA MISHRA ON 25-03-2 018 WHO TOOK A WEEK TIME IN PREPARING THE SAME AND FILED WI THOUT ANY FURTHER DELAY AND AS SUCH THE DELAY IN FILING APPEA L IS NEITHER I.T.A. NO.245/LKW/2018 ASSESSMENT YEAR:2012-13 3 DELIBERATE NOR INTENTIONAL BUT DUE TO CIRCUMSTANCES BEYOND HIS CONTROL AND SAME IS LIABLE TO BE CONDONED. 9. THAT DEPONENT CRAVES THE INDULGENCE OF THE HON'B LE TRIBUNAL TO CONDONE THE DELAY AND HEARD THE INSTANT APPEAL ON MERIT. 2.1 LEARNED A. R. SUBMITTED THAT SINCE THE DELAY HA D OCCURRED FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE, THEREFORE, IN T HE INTEREST OF SUBSTANTIAL JUSTICE THE DELAY IN FILING THE APPEAL MAY BE CONDO NED AND THE APPEAL BE HEARD ON MERITS. LEARNED A. R. ALSO SUBMITTED THAT LEARNED CIT(A) HAD CALLED FOR REMAND REPORT BUT THE ASSESSING OFFICER DID NOT SEND THE REMAND REPORT TO CIT(A) AND LEARNED CIT(A) DISMISSED THE A PPEAL OF THE ASSESSEE WITHOUT THE REMAND REPORT FROM THE ASSESSING OFFICE R. THEREFORE, IT WAS PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF LEARNED CIT(A) TO DECIDE THE ISSUES AFRESH AFTER CALLING AND CONSIDER ING THE REMAND REPORT FROM THE ASSESSING OFFICER. 3. LEARNED D. R. HAD NO OBJECTION TO CONDONATION OF DELAY AND THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DELAY WAS CONDONED AND LEARNED A. R. WAS ASKED TO ARGUE ON ME RITS. 4. THE FACTS OF CASE, IN BRIEF, ARE THAT IN THIS CA SE THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 13/06/2013 DECLARING TOTAL INCOME OF RS.1,05,680/-. THE ASSESSEE DERIVES INCOME FROM TRADING IN SHARES. THE ASSESSMENT IN THIS CASE WAS COMPLETED O N 31/03/2015 U/S 143(3) OF THE I.T. ACT ON TOTAL INCOME OF RS.22,55, 680/- AFTER MAKING ADDITION OF RS.21,20,000/- UNDER THE HEAD UNEXPLAIN ED CASH DEPOSITS AND RS.30,000/- BY DISALLOWING DEDUCTION U/S 80C OF THE I.T. ACT. BEING AGGRIEVED BY THE ABOVE ADDITIONS, THE ASSESSEE WENT IN APPEAL BEFORE LEARNED CIT(A) WHO ALSO DISMISSED THE APPEAL. I.T.A. NO.245/LKW/2018 ASSESSMENT YEAR:2012-13 4 5. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I NOTED THAT THIS IS A CASE WHERE THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT THE REMAND REPOR T OF THE ASSESSING OFFICER. ALTHOUGH THE LEARNED CIT(A) HAD CALLED FO R THE REMAND REPORT FROM THE ASSESSING OFFICER BUT THE SAME WAS NOT SUBMITTE D BY THE ASSESSING OFFICER AND WITHOUT CONSIDERING THE REMAND REPORT T HE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WHICH IS AGAIN ST THE PRINCIPLES OF NATURAL JUSTICE. IN VIEW OF THE ABOVE FACTS, I REM IT THIS MATTER BACK TO THE FILE OF LEARNED CIT(A) TO DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/10 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:31/10/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW