Mr. Mohan, Bengaluru V. Income Tax Officer, Ward-7(2)(5), Bengaluru

ITA 2628/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4742 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK JHA
• Assessee Lawyers: S BALACHANDRAN
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 2628 / BANG/201 7 ASSESSMENT YEAR : 20 1 3 - 14 SHRI MOHAN, NO. 1, NISCHITHALAYA, 10 TH C CROSS, ANJANEYA TEMPLE STREET, BALAJI NAGAR, ITTAMADU, BANGALORE 560 085. PAN: AMBPM2130N VS. THE INCOME TAX OFFICER, WARD 7 (2) (5), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S. BALACHANDRAN, ADVOCATE RESPONDENT BY : SHRI D.K. JHA, ADDL. CIT (DR) DATE OF HEARING : 22 .05.2018 DATE OF PRONOUNCEMENT : 01 .0 6 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THEASSESSEE WHICH IS DIRECT ED AGAINST THE ORDER OF LD. CIT(A)-7, BANGALORE DATED 03.10.2017 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE IMPUGNED ORDER OF CIT(A) IS BAD AND UNSUSTAI NABLE IN THE EYE OF LAW AND HENCE THE SAME IS LIABLE TO BE SET ASIDE . 2. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE AP PELLANT HAD OFFERED BONA FIDE EXPLANATION THAT THE NON-RECEIPT OF THE ASSESSMENT ORDER BY THE APPELLANT WHICH HAD RESULTED IN DELAY IN FILING THE FIRST APPEAL WHICH WAS SUFFICIENT; AND HENCE THE CIT(A) S HOULD HAVE CONDONED THE DELAY AND PASSED ORDER AND MERITS. 3. WITHOUT PREJUDICE, THE CIT (A) OUGHT TO HAVE APP RECIATED THAT THERE WAS NO CHANCE FOR THE APPELLANT TO FILING AN APPEAL IN THE ABSENCE OF THE RECEIPT OF THE ASSESSMENT ORDER. 4. WITHOUT PREJUDICE, CIT (A) OUGHT TO HAVE APPRECI ATED THAT THE APPELLANT HAVING EXPLAINED THE IDENTITY OF CREDITOR S, ALSO HAVING FILED CONFIRMATIONLETTERS OF THE LENDERS, NO ADDITION WAS CALLED FOR. ITA NO.2628/BANG/2017 PAGE 2 OF 3 5. THE APPELLANT SEEKS THE LEAVE TO ADD, ALTER, AME ND OR CHANGE THE GROUNDSAT ANY TIME PENDING ADJUDICATION. PRAYER 6. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED DURING THE COURSE OF ARGUMENTS, THE APPELLANT HUMBLY PRAYS THA T THE APPEAL MAY KINDLY BE ALLOWED BY DELETING THE ADDITIONS MADE BY THE AO AND SUSTAINED BY THE CIT(A), IN THE INTEREST OF JUSTICE AND EQUITY. 3. REGARDING NON-CONDONATION OF DELAY BY CIT(A) IN RESPECT OF DELAY IN FILING APPEAL BEFORE CIT(A), IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT APPLICATION WAS MADE BEFORE CIT(A) FOR CONDONATION OF DELAY AND HE SUBMITTED A COPY OF SUCH APPLICATION DATED 01.02.2017 ALONG WITH COPY O F AFFIDAVIT OF THE ASSESSEE FILED BEFORE CIT(A) AND IT WAS POINTED OUT THAT IT WAS EXPLAINED AS PER THIS LETTER AND AFFIDAVIT THAT THE ASSESSEE HAS NOT RECEIVED TH E DEMAND NOTICE AND ASSESSMENT ORDER TILL 28.09.2016 AND AFTER RECEIVIN G THE PENALTY ORDER PASSED BY AO U/S. 271(1)(C) OF THE ACT ON 29.09.2016, THE ASSESSEE MADE ENQUIRIES AND THEN THE ASSESSEE CAME TO KNOW THAT THE ORDER U /S. 143(3) HAS BEEN SENT BY THE AO TO ASSESSEE BUT THE SAME WAS ACTUALLY NOT RECEIVED. HE SUBMITTED THAT UNDER THESE FACTS, THE DELAY IN FILING THE APP EAL BEFORE CIT (A) SHOULD HAVE BEEN CONDONED BY HIM AND NOW HE REQUESTED THAT THE TRIBUNAL SHOULD CONDONE THE SAME AND RESTORE THE MATTER BACK TO THE FILE OF CIT (A) FOR DECISION ON MERIT. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A) . 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND I FI ND THAT ON THIS ASPECT, THE ISSUE WAS DECIDED BY CIT (A) AS PER PARA 3.7 OF HIS ORDER WHICH IS REPRODUCED HEREINBELOW FOR READY REFERENCE. 3.7 IN THE INSTANT CASE THE 'SUFFICIENT CAUSE' AS S TATED BY THE APPLICANT IS THAT THE APPELLANT DID NOT RECEIVE THE ASSESSMENT ORDER AND DEMAND NOTICE TILL SEPTEMBER 2016, WHICH IS FOU ND TO BE NOT CORRECT. NO EVIDENCE IS BROUGHT ON RECORD TO SUPPOR T THIS CLAIM BY THE APPELLANT. FURTHER, EVEN IT IS ADMITTED FOR THE SAK E OF ARGUMENT THAT THE ORDER AND DEMAND NOTICE WERE RECEIVED ONLY AT T HE END OF SEPT 2016, WHY IT TOOK THE APPELLANT SO MANY DAYS ONLY T O FILE APPEAL ON 03-02-2017. HENCE, THIS EXPLANATION CANNOT BE ACCEP TED AS A SUFFICIENT REASON FOR THE FAILURE ON THE PART OF TH E APPELLANT TO FILE APPEAL IN TIME BECAUSE ACCEPTING THIS KIND OF EXPLA NATION TO CONDONE THE DELAY WILL TRIVIALIZE THE VERY PURPOSE OF THE P ROVISION PRESCRIBING SUCH A STIPULATION FOR FILING APPEAL. AND ALSO SUC H AN EXPLANATION OF NEGLIGENCE, IF ACCEPTED, CAN EXPLAIN ANY DELAY IN F ILING THE APPEAL ITA NO.2628/BANG/2017 PAGE 3 OF 3 LEADING TO DEFEAT OF THE VERY PURPOSE AND RATIONALE OF THE PROVISION. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINION T HAT THE APPELLANT HAS FAILED TO GIVE THE SUFFICIENT REASON FOR THE DE LAY OF FILING OF APPEAL AND HENCE, THE DELAY IN FILING THE APPEAL CANNOT BE CONDONED. CONSEQUENTLY, THE APPEAL OF THE APPELLANT IS TREATE D AS INVALID. 5. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT (A), IT IS SEEN THAT THIS WAS THE SUBMISSION OF ASSESSEE BEFORE CIT (A) THAT THE ASSESSEE DID NOT RECEIVE THE ASSESSMENT ORDER AND DEMAND NOTICE TILL SEPTEMBER 2016 BUT THE CIT (A) HAS NOT ACCEPTED THE SAME BY SAYING THAT NO EVIDENCE WAS BROUGHT ON RECORD TO SUPPORT THE CLAIM OF THE ASSESSEE. IN MY CONSIDERED OPINION, ASKING EVIDENCE IN SUPPORT OF NEGATIVE IS NOT PROPER. BE IT AS IT MAY BUT CONSIDERING THE FACTS OF PRESENT CASE, I FEEL IT PROPER TO COND ONE THE DELAY IN FILING THE APPEAL BEFORE CIT (A). I DO SO AND RESTORE THE MATT ER BACK TO THE FILE OF CIT (A) FOR DECISION ON MERIT OF THE APPEAL FILED BY ASSESS EE BEFORE CIT (A). 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 01 ST JUNE, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.