ANISHA H. KULAVOOR, MUMBAI V. ITO WD 21(1)(1), MUMBAI

ITA 2485/MUM/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2488 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA , AM ./ I.T.A. NO. 2485/MUM/2015 ( / ASSESS MENT YEAR: 2009 - 10) SMT. ANISHA H. KULAVOOR 27A, 403, NEW DINDOSHI HARMONY, CHS LTD., NNP 142, MALAD (E), MUMBAI - 400 097 / VS. ITO - 21(1)(1), MUMBAI - 400 051 ./ ./ PAN/GIR NO. AJMPK 6108 J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI HARIDAS BHATT / RESPONDENT BY : SHRI B. S. BIST / DATE OF HEARING : 19.11.2015 DATE OF ORDER : 16 . 1 2 .2015 / O R D E R PER SANJAY ARORA, A. M.: TH IS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI (CIT(A) FOR SHORT) DATED 05.9.2014 , DISMISSING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10 VIDE ORDER DATED 29.12.2011. 2. AT THE VERY OUTSET, IT WAS OBSERVED THAT THE INSTANT APPEAL IS DELAYED BY A PERIOD OF 166 DAYS . THE ACCOMPANYING CONDONATION PETITION DATED 29.4.2015, WHICH IS SUPPOR TED BY AN AFFIDAVIT DATED 24.4.2015, EXPLAINS THE SAID DELAY TO BE ON ACCOUNT OF 2 ITA NO. 2485/MUM/2015 (A.Y.2009 - 10) SMT. ANISHA H. KULAVOOR VS. ITO THE DEATH OF THE ASSESSEES CHARTERED ACCOUNTANT (CA), WHO WAS REPRESENTING HER IN THE TAX PROCEEDINGS AND HAD ALL THE RELEVANT DOCUMENTS IN HIS POSSESSION. IT IS OBSERVED THA T SIMILAR SUBMISSIONS WERE ALSO MADE BY THE ASSESSEE BEFORE THE LD. CIT(A), WHICH STAND REPRODUCED AT PARA 2.2 OF THE IMPUGNED ORDER. AS IT APPEARS, THE DELAY IS FOR WANT OF PROPER LEGAL ADVICE IN VIEW OF THE DEATH OF THE ASSESSEE S COUNSEL, WITH THE NEW COUNSE L , THE LEARNED AUTHORIZED REPRESENTATIVE (AR) BEFORE US, HAVING BEEN APPOINTED ONLY ON 29.4.2015. THE SAID DEATH, HOWEVER, TOOK PLACE IN THE YEAR 2013, I.E., MUCH BEFORE THE DATE OF PASSING OF THE IMPUGNED ORDER. THERE H AS THUS CERTAINLY BEEN SOME NEGLIGEN CE ON THE PART OF THE ASSESSEE IN ATTENDING TO HER AFFAIRS, AND THE DELAY CAN ONLY BE SAID TO BE ATTRIBUTABLE TO HER. WE HAVE ALREADY NOTED WANT OF PROPER LEGAL COUNSEL TO THE ASSESSEE, A LADY WORKING SINGLE HANDEDLY ; HER HUSBAND WORKING AT DUBAI. THE DELA Y IN MY OPINION SHOULD NOT PROVE FA TAL, SHUTTING OUT SCOPE OF ANY LEGAL REMEDY. ACCORDINGLY, TAKING A LIBERAL VIEW, THE DELAY IS CONDONED, SUBJECT TO A PAYMENT OF COST OF RS.10,000/ - (RUPEES TEN THOUSAND) TO BE PAID TO THE PRIME MINISTERS NATIONAL RELIEF FUND. THE LD. AR AGREEING TO THE SAME, THE APPEAL WAS ADMITTED AND THE HEARING IN THE MATTER WAS PROCEEDED WITH. ON MERITS, IT IS OBSERVED THAT THE LD. CIT(A) HAS CONFIRMED THE IMPUGNED ADDITION, WHICH IS IN RESPECT OF NON OR UNSATISFACTORY EXPLANATION FO R THE SOURCE OF ACQUISITION OF CASH FOR RS.6.22 LACS, IN THE ABSENCE OF SUBSTANTIATION OF HER CASE BY THE ASSESSEE. EVEN THE OBSERVATIONS BY THE A SSESSING OFFICER (A .O. ) , WHO HAD CALLED FOR THE ASSESSEES BOOKS OF ACCOUNT, INCLUDING CASH BOOK, ARE EXPLICIT IN THE MATTER. THE ASSESSEE, HOWEVER, AS APPARENT FROM THE READING OF PARA 2.2 OF THE IMPUGNED ORDER , HAD SOUGHT ADJ OURNMENT , SEEKING ONE MONTH S TIM E TO BE ABLE TO PRESENT HER CASE BEFORE THE LD. CIT(A). THE IMPUGNED ORDER IS SILENT ON THIS. THE CONDONAT ION APPLICATION BEFORE US ALSO CLARIFIES THAT THE ASSESSEE HAS SINCE BEEN ABLE TO LOCATE THE RELEVANT PAPERS. THE ASSESSEES CASE AT THE FIRST APPELLATE STAGE HAS BEEN THUS CLEARLY UNREPRESENTED, I.E., ON MERITS. IN FACT, THE ASSESSEES PRAYER BEFORE THE T RIBUNAL WAS LIMITED TO BEING GRANTED AN OPPORTUNITY TOWARD THE SAME. 3 ITA NO. 2485/MUM/2015 (A.Y.2009 - 10) SMT. ANISHA H. KULAVOOR VS. ITO UNDER THE CIRCUMSTANCES, IT IS ONLY CONSIDERED PROPER TO, IN THE INTEREST OF JUSTICE, VACATING THE IMPUGNED ORDER, RESTOR E THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR A DECISION ON MERITS IN ACCORDANCE WITH THE LAW , ISSUING DEFINITE FINDINGS OF FACT , AND AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY TO STATE HER CASE BEFORE HIM. I DECIDE ACCORDINGLY. 3. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 19 , 201 5 AT THE CONCLUSION OF THE HEARING. SD/ - (S ANJAY ARORA) / A CCOUNTANT MEMBER MUMBAI ; DATED : 16 . 12 .201 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI