Kantilal Valabhdas Popat, Surat V. The Income Tax Officer, Ward-5(2), Surat

ITA 2499/AHD/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1990 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH POPAT SO KANTILAL POPAT
• Keywords: Condonation of delay
• Section: 271(1)(c); 143(3)

Judgement Text

KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 1 OF 6 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./I.T.A NOS.2498 & 2499/AHD/2015/SRT /ASSESSMENT YEAR : 2011-12 KANTILAL VALABHDAS POPAT, (PROP. JALARAM PASHU AAHAR), SHYAMJI KAL NI WADI, SHOP NO.5, KAMREJ CHAR RASTA, AT & POST NAVAGAM, KAMREJ, SURAT 395001. [PAN: ADLPP 9119 M] VS. THE INCOME TAX OFFICER, WARD-5(2), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI RAJESH POPAT (S/O. KANTILAL POPAT) /REVENUE BY SHRI DILEEP KUMAR - SR.DR / DATE OF HEARING: 08 . 10 .2018 /PRONOUNCEMENT ON 11 . 10 . 2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)1, SURAT(IN SHORT THE CIT (A)) DATED 11.06.2015 PERTAINING TO ASSESSMENT YEAR 2011-12. KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 2 OF 6 2. GROUND NO.1 STATES THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN NOT GRANTING CONDONATION OF DELAY ON FACTS AND CIRCUMSTANCES OF THE CASE AND DISMISSING THE APPEAL WITHOUT CONSIDERING THE MERITS OF THE CASE. 3. SHORT FACTS ARE THAT THE ASSESSMENT WAS FINALIZED U/S.143(3) ON 21.03.2014 BY MAKING GROSS PROFIT ADDITION OF RS.6.80 LAKHS, DISALLOWANCE OUT OF FREIGHT AND TEMPO EXPENSES AT RS.4.28 LAKHS, DISALLOWANCE OF BROKERAGE EXPENDITURE OF RS.22,596/- AND OTHER ADDITION OF RS.72,410/-. THE ASSESSMENT ORDER DATED 21.03.2014 WAS SERVED UPON THE ASSESSEE ON 24.03.2014, THEREFORE, THE ASSESSEE WAS REQUIRED TO FILE AN APPEAL BEFORE THE CIT(A) ON OR BEFORE 23.04.2014. HOWEVER, THE APPEAL WAS FILED ON 01.12.2014 I.E. AFTER A DELAY OF APPROXIMATELY 7 MONTHS AND 8 DAYS. THE ASSESSEE HAS REQUESTED FOR CONDONATION OF DELAY VIDE LETTER DATED 26.11.2014 BEFORE THE CIT(A) WHEREIN IT WAS SUBMITTED THAT HE IS A LAYMAN AND WAS NOT AWARE OF THE FACT THAT APPEAL AGAINST ANY ORDER NEEDS TO BE FILED WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THE ORDER ALONG WITH DEMAND NOTICE. HE WAS ILL AND SICK DURING THAT PERIOD AND AFTER RECOVERY FROM ILL HEALTH HAD SOUGHT REDRESSAL KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 3 OF 6 AGAINST THE SAID ORDER BY WHICH THE TIME LIMIT PROVIDED BY THE STATUTE WAS ALREADY EXPIRED. THEREFORE, IT WAS REQUESTED TO CONDONE THE DELAY CAUSED DUE TO ILL-HEALTH. HOWEVER, THE CIT(A) REJECTED THE DELAY IN FILING OF APPEAL AS NO EVIDENCE IN SUPPORT OF ILL-HEALTH WERE FILED. 4. BEING AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. BEFORE US, THE COUNSEL FOR THE ASSESSEE HAS NOT APPEARED BUT A WRITTEN SUBMISSIONS WERE FILED. HOWEVER, THE SON OF THE ASSESSEE HAS APPEARED BEFORE US. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE WRITTEN SUBMISSIONS FILED BEFORE US. IT IS SEEN THAT THE ASSESSEE IS A SENIOR CITIZEN AND BORN ON 15.02.1948. IT IS EXPLAINED THAT DUE TO OLD AGE OF 69 YEARS, AND HAVING SEVERAL MEDICAL PROBLEMS, THE ASSESSEE CANNOT PROPERLY REMEMBER. THE ASSESSEE HAS FILED COPY OF CONSULTANCY PAPERS OF PHYSICIAN AS A PROOF OF HIS MEDICAL PROBLEM VIDE ANNEXURE-1. IT WAS SUBMITTED THAT THE CIT(A) HAS OBSERVED THAT THE ASSESSEE IS NON-COOPERATIVE DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, IT WAS SUBMITTED THAT THE ORDER IS PASSED BY THE LD.AO IS UNDER SECTION 143(3) AND NOT U/S.144. THEREFORE, KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 4 OF 6 THE ASSESSEE HAS COOPERATED DULY DURING ASSESSMENT PROCEEDINGS. WE FIND THAT THE ASSESSEE HAD SEVERAL HEALTH ISSUES DUE TO HIS OLD AGE AND ALSO IGNORANCE ABOUT INCOME TAX PROVISION. THE QUASI- JUDICIAL BODIES ARE EMPOWERED TO CONDONE THE DELAY IF THE LITIGANT SATISFIES THE COURT THAT THERE ARE SUFFICIENT REASONS FOR THE REMEDY AFTER EXPIRY OF THE LIMITATION. THE HON'BLE SUPREME COURT IN THE CASE OF STATE OF WEST BENGAL VS. ADMINISTRATOR, HOWRAH MUNICIPALITY AIR [1972] (SC) 749 WHILE CONSIDERING THE SCOPE OF EXPRESSION OF SUFFICIENT CAUSE FOR CONDONATION OF DELAY, HAS HELD THAT THE SAID EXPRESSION WOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR ANY INACTION OR WANT OF BONAFIDE IS IMPUTABLE TO THE PARTY. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE SATISFIED THAT THERE IS SUFFICIENT CAUSE AND REASONS FOR NON-FILING OF APPEAL WITHIN THE STIPULATED TIME AND THEREFORE THE DELAY IN FILING OF APPEAL LATE IS DESERVES TO BE CONDONED. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE DEEM IT FIT TO CONDONE THE DELAY OF 7 MONTHS AND 8 DAYS FOR FILING OF APPEAL BEFORE THE LD.CIT(A) AND DIRECT THE CIT(A) TO ADMIT THE APPEAL AND DECIDE THE SAME IN ACCORDANCE WITH LAW ON MERITS OF THE CASE. THEREFORE, THIS APPEAL KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 5 OF 6 IS SET-ASIDE TO THE FILE OF THE CIT(A). THEREFORE, THE OTHER GROUND OF APPEAL ARE NOT BEING DECIDED AS THE SAME ARE DIRECTED TO DECIDED BY THE CIT(A) AFTER GRANTING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2499/AHD/2015/SRT FOR A.Y.2011-12 : 7. THE ASSESSEE HAS FILED THIS APPEAL BEFORE US ON THE GROUND THAT THE CIT(A) ERRED IN NOT GRANTING CONDONATION OF DELAY AND NOT DECIDING THE IMPOSITION OF PENALTY OF RS.3,31,697/- U/S.271(1)(C) OF THE ACT. 8. WE HAVE CONSIDERED THE FACTS AND FIND THAT THE FACTS ARE IDENTICAL AS IN THE CASE OF QUANTUM APPEAL DECIDED BY US IN EARLIER PARA OF THIS ORDER, WHEREIN WE HAVE CONDONED THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). THEREFORE, ON THE BASIS OF SAME REASONING, WE ALSO CONDONE THE DELAY OF FILING OF APPEAL AGAINST PENALTY ORDER UNDER THE SECTION 271(1)(C) BEFORE CIT(A), ACCORDINGLY THE CIT(A) IS DIRECTED TO ADMIT THE APPEAL AND DECIDE KANTILAL VALABHDAS POPAT VS. ITO, WARD-5(2), SURAT /ITA. NOS.2498 & 2499/A/2015/SRT/A.Y.: 2011-12 PAGE 6 OF 6 THE SAME IN ACCORDANCE WITH LAW, ACCORDINGLY APPEAL IS SET-ASIDE TO THE FILE OF THE CIT(A). 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. FINALLY, IN THE RESULT, APPEALS OF THE ASSESSEE FOR QUANTUM AND PENALTY FOR THE ASSESSMENT YEARS 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSE. 11. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11-10-2018. SD/- SD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED : 11 TH OCTOBER , 2018/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT