Jhunu Bain Gain, Kolkata V. ITO Wd-50(1), Kolkata, Kolkata

ITA 255/KOL/2014

• Counselvise Citation: 25523514 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 14-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHRAJOTI BHATTACHARYA
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC , KOLKATA (BEFORE SHRI P. M. JAGTAP , ACCOUNTANT MEMBER ) ITA NO. 255 /KOL/201 4 : ASSTT. YEAR : 2009 - 2010 JHUNU BAIN GAIN PAN: A HQPB 8939A VS ITO, WARD - 50(1) , KOLKATA (APPELLANT) (RESPONDENT) A PPELLANT BY : NONE RESPONDENT BY : SHRI SUBHRAJOTI BHATTACHARYA , JCIT, SR.DR DATE OF HEARING : 10 .09 .2015 DATE OF PRONOUNCEMENT : 16 .09 .2015 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME - TAX (APPEALS) - X XXI I , KOLKATA DATED 02.12 .2013 FOR THE ASSESSMEN T YEAR 2009 - 10 , WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE TREATING THE SAME A S BARRED BY LIMITATION AND ALSO DECIDED THE ISSUE RAI SED IN THE SAID APPEAL ON MERIT AGAINST THE ASSESSEE. 2. T HE ASSESSEE , IN THE PRESENT CASE, IS AN INDIVIDUAL, WHO IS ENGAGED IN THE BUSINESS AS BUILDING CONTRACTOR. THE R ETURN OF INCOME FOR THE YE AR UNDER CONSIDERATION WAS FILED BY HER ON 23.09.2009 DECLA RING TOTAL INCOME OF RS.1,92,024/ - . IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN OR DER DATED 29.11.2011 , THE TOTAL INCOME OF THE ASSESSEE W AS DETERMINED BY THE AO AT RS.9,96,200 / - , AFTE R MAKING A DISALLOWANCE OF RS.8,04,177/ - ON ACCOUNT OF BOGUS/NON - GENUINE LIABILITIES . 3. AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3), APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND S INCE THERE WAS 2 ITA NO. 255 /KOL/201 4 JHUNU BAIN GAIN ASSESSMENT YEAR: 200 9 - 10 A DELAY OF 137 DAYS ON THE PA RT OF THE ASSESSEE IN FILIN G THE SAID APPEAL, APPLICATION WAS MOVED BY THE ASSESSEE BEFORE THE LD. CIT(A) SEEKING CONDITION OF THE SAID DELAY ON THE GROUND THAT SHE WAS SUFFERING FROM JAUNDICE AND WAS ADVISED BED - REST DURING THE RELEVANT PERIOD . IT WAS SUB MITTED THAT DUE TO SUCH ILLNESS, THE ASSESSEE COULD NOT PURSUE THE MATTER OF FILING THE APPEAL BEFORE THE LD. CIT(A) AND AUTHORISED REPRESENTATIVE ALSO FAILED TO FILE THE APPEAL DUE TO HIS PERSONAL PROBLEMS. SINCE THIS EXPLANATION OF THE ASSESSEE WAS NOT S UPPORTED BY ANY DECLARATION FROM HER AUTHORIZED REPRESENTATIVE, THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY WAS REJECTED BY THE LD. CIT(A) AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY HIM IN LIMINE TREATING THE SAME AS BARRED BY LIMITATION. HE ALSO PROCEEDED FURTHER TO DECIDE THE ISSUE RAISED IN THE APPEAL OF THE ASSESSEE ON MERIT AGAINST THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. A COPY OF THE APPLICATION FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) SEEKING CONDONATION OF DELAY OF 137 DAYS IN FILING THE APPEAL, HOWEVER, IS PLACED ON THE RECORD BEFORE ME , WHEREIN THE DELAY IN FILING THE APPEAL HAS BEEN EXPLAINED BY THE ASSESSEE AS UNDER: 8 . THAT THE APPELLANT INSTRUCTED HER EARLIER REPRESENTATIVE TO TAKE EVERY STEP TO PREFER APPEAL AGAINST THE SAID ORDER IMPUGNED. 9. THAT UNFORTUNATELY YOUR APPELLANT BECAME ILL AND SHE WENT TO THE DOCTOR AND IT WAS FOUND THAT SHE HAD BEEN SUFFERING FROM JAUNDICE AND OTHER COMPLICATION AND ON 01.02.2012 SHE WAS ADVISED TO TAKE ABSOLUTE BED REST. 3 ITA NO. 255 /KOL/201 4 JHUNU BAIN GAIN ASSESSMENT YEAR: 200 9 - 10 10. THAT DUE TO SAID ILLNESS AND FOLLOW UP SYMPTOMS AND WEAKNESS YOUR APPELLANT WAS UNABLE TO GO OUT FROM HOME AN D SHE BECAME ABLE TO COME OUT FROM HOME ONLY ON 29.04.2012. 11. THAT ON 30.04.2012 SHE MET HER EARLIER REPRESENTATIVE TO ASCERTAIN THE FATE OF THE APPEAL AND BECAME ASTONISHED TO KNOW THAT HER REPRESENTATIVE DUE TO HIS PERSONAL PROBLEM COULD NOT PREFER THE SAID APPEAL. 12. THAT IN THE ABOVE SITUATION THE APPELLANT REQUESTED HER EARLIER REPRESENTATIVE TO HAND OVER ALL THE ORIGINAL PAPERS AND DOCUMENTS INCLUDING THE COPY OF THE ORDER IMPUGNED WHICH IS ES SENTIAL FOR PREFERRING THE APPEAL, WHEN THE EARLIER REPRESENTATIVE SAID THAT SOMEHOW THOSE DOCUMENTS HAVE BEEN MISPLACED HE NEED SOME TIME TO TRACE OUT THE SAME AND HE ASKED THE AP PELLANT TO MEET HIM ON 14.05.2012. IN THE ABOVE SITUATION THE APPELLANT REQUESTED HER PRESENT REPRESENTATIVE TO TAKE STEPS TO P REFER THE APPEAL. 13. THAT ACCORDINGLY ON 14,05,2012 SHE MET HER EARLIER REPRESENTATIVE AND GOT THE ALL ORIGINAL DOCUMENTS AND ON THE SAME DAY THE APPELLANT HAND OVER AL L THOSE DOCUMENTS TO HER PRESENT REPRESENTATIVE AND ACCORDINGLY THE APPEAL HAS BEEN PREFERRED ON 16,05.2012. 14. THAT ACCORDINGLY SOME DELAY HAS ALREADY BEEN CAUSED IN PREFERRING THE APPEAL AGAINST THE ORDER IMPUGNED DATED 29.11.201. 6. IT IS OBSERVED THAT SIMILAR REASONS AS ABOVE WERE ALSO ADVANCED BY THE ASSESSEE BEFORE THE LD. CI T IN ORDER TO EXPLAIN THE DELAY OF 205 DAYS IN FILING HIS APPEAL. THE LD. CIT(A), HOWEVER, DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE ON THE GROUND THAT THE REASON GIVEN BY THE ASSESSEE FOR DELAY IN FILING THE APPEAL WAS NOT SUPPORTED BY ANY DECLARATIO N FILED BY HER AUTHORIZED REPRESENTATIVE . I AM UNABLE TO SUBSCRIBE TO THIS VIEW OF THE LD. CIT(A). IN MY OPINION, WHEN THE ASSESSEE WAS SUFFERING FROM ILLNESS DURING THE R ELEVANT PERIOD, DUE TO WHICH, SHE COULD NOT PURSUE THE MATTER OF FILING THE APPEAL BE FORE THE LD. CIT(A) AND THE SAME WAS DULY SUPPORTED BY A MEDICAL CERTIFICATE 4 ITA NO. 255 /KOL/201 4 JHUNU BAIN GAIN ASSESSMENT YEAR: 200 9 - 10 ISSUED BY THE WESTERN VIEW NURSING HOME , BONGAON, NORTH 24 PARGANAS, THE REASON GIVEN BY THE ASSESSEE FOR DELAY IN FILING THE APPEAL COULD NOT BE REJECTED JUST FOR WANT OF DECLARA TION OF HER AUTHORIZED REPRESENTATIVE . AS A MATTER OF FACT, THE CASE OF THE ASSESSEE OF ILLNESS DURING THE RELEVANT PERIOD WAS DULY SUPPORTED BY MEDICAL CERTIFICATE AND SINCE S HE COULD NOT PURSUE THE MATTER OF FILING THE APPEAL BEFORE THE LD. CIT(A) W ITHIN THE PRESCRIBED TIME LIMIT DUE TO SUCH ILLNESS, THERE WAS CERTAINLY A SUFFICIENT CAUSE, WHICH PREVENTED THE ASSESSEE FROM FILING THE APPEAL BEFORE THE LD. CIT(A) WITHIN THE SPECIFIED TIME LIMIT . AT THE TIME OF HEARING, THE LD. DR HAS ALSO NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION. I, THEREFORE, CONDONE THE DELAY ON THE PA RT OF THE ASSESSEE IN FILING HER APPEAL BEFORE THE LD. CIT(A ) AND REMIT THE MATTER BACK TO THE LD. CIT(A) WITH A DIRECTION TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT S, AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPTEMBER, 2015. SD/ - ( P.M.JAGTAP ) ACCOUNTANT MEMBER DATED: 16 /09/ 2015 TALUKDAR/SR.PS COPY OF ORDER FORWARDED TO: 1 JHUNU BAIN GAIN , C/O - M/S. SUBARBAN FUEL SERVICES, VILL - SARABERIA, SODEPUR, TAKI ROAD, BARASAT, KOLKATA - 700 124. 2 ITO, WARD - 50(1) , KOLKATA 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA 5 ITA NO. 255 /KOL/201 4 JHUNU BAIN GAIN ASSESSMENT YEAR: 200 9 - 10