W.S.Basheer , Bangalore V. Income Tax Officer Ward-7(2)(4) , Bangalore

ITA 2727/BANG/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0709 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S RAMASUBRAMANIAN
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 2 727 /BANG/201 7 ASSESSMENT YEAR : 20 1 2 - 1 3 SHRI W.S. BASHEER, PROP: WAWANNA HARDWARE, 279, 27 TH CROSS, 3 RD BLOCK, JAYANAGAR, BANGALORE 560 011. PAN: AAGPW9544B VS. THE INCOME TAX OFFICER, WARD 7 (2) (4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S. RAMASUBRAMANIAN, CA RESPONDENT BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 20 . 11 .2018 DATE OF PRONOUNCEMENT : 29 . 11 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT (A)-7, BANGALORE DATED 01.11.2017 FOR ASSE SSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), IN SO FAR IT IS PREJUDICIAL TO THE INTER ESTS OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN NOT CONDONING THE DELAY FOR FIL ING THE APPEAL EVEN THOUGH THERE IS A SUFFICIENT AND REASONABLE CAUSE F OR SUCH DELAY. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO HAVE CONDONE THE DELAY KEEPING IN THE MIND THAT THE DELAY HAS NOT OCCURRED DUE TO THE MISTAKE OF APPELLANT. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO HAVE HELD THAT LEVYING PENALTY U/S. 271(1)(C) OF TH E ACT IS BAD IN LAW SINCE THERE IS NEITHER CONCEALMENT OF INCOME NOR FU RNISHING INACCURATE PARTICULARS AT THE TIME OF ASSESSMENT. 5. THAT THE NOTICE ISSUED U/S. 274 R.W.S 271(1)(C) OF THE ACT DOES NOT CLEARLY INDICATE WHETHER IT IS A CASE OF CONCEALMEN T OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME 6. THAT THE NOTICE U/S. 274 OF THE ACT DOES NOT SAT ISFY THE REQUIREMENTS OF SEC. 274 AS NO DETAILS REGARDING CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME WERE FURNISHED IN THE NOTICE. ITA NO. 2727/BANG/2017 PAGE 2 OF 6 7. THAT THE ASSESSMENT ORDER DOES NOT RECORD ANY SA TISFACTION THAT THE APPELLANT HAS CONCEALED INCOME OR FURNISHED INACCUR ATE PARTICULARS THEREOF AND THEREFORE, LEVY OF PENALTY U/S. 271(1)( C) IS BAD IN LAW. 8. THAT THE LEARNED LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY ON THE ADDITION OF 25% OF SU NDRY CREDITORS MADE ON AD-HOC BASIS. 9. THAT THE LEARNED LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY ON THE DISALLOWANCE OF 25% O F TOTAL EXPENDITURE DEBITED TO PROFIT AND LOSS ACCOUNT ON A D-HOC BASIS. 10. THAT THE LEARNED LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY ON THE ADDITION OF UNSECURED LOANS ON THE GROUND THAT PAN IS NOT MENTIONED IN THE CONFIRMATIO N LETTERS. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLATE TRIBUNAL, BANGALORE TO ADD, DELETE, AMEND OR OTHERWISE MODIFY ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THIS APPEAL IS IN COURSE OF PENALTY PROCEEDINGS INITIATED BY THE A O U/S. 271(1)(C) OF IT ACT AND AS PER THE IMPUGNED ORDER OF CIT(A), HE HAS DIS MISSED THE APPEAL OF THE ASSESSEE ON THIS BASIS THAT THERE IS DELAY IN F ILING OF APPEAL BEFORE CIT(A) AND THE ASSESSEE HAS FAILED TO GIVE SUFFICIE NT REASON FOR DELAY IN FILING OF THE APPEAL AND HENCE, THE DELAY CANNOT BE CONDONED. HE FURTHER SUBMITTED THAT THE DELAY IN FILING OF THIS APPEAL B EFORE LD. CIT(A) WAS OF 94 DAYS AND THIS WAS THE EXPLANATION OF THE ASSESSEE B EFORE THE CIT(A) THAT THE DELAY IN FILING THE APPEAL IS DUE TO THE MISTAK E OF THE CHARTERED ACCOUNTANT WHO WAS HANDLING THE MATTER AND AFFIDAVI T OF THE SAID CHARTERED ACCOUNTANT WAS ALSO FILED BEFORE CIT(A). THEREAFTE R, HE SUBMITTED THAT IN QUANTUM APPEAL ALSO, FOR THE SAME ASSESSEE AND FOR THE SAME YEAR, THERE WAS DELAY IN FILING OF APPEAL BEFORE CIT(A) OF 229 DAYS AND THE QUANTUM APPEAL OF THE ASSESSEE WAS ALSO DISMISSED BY THE CI T(A) IN LIMINE WITHOUT CONDONING THE DELAY OF 229 DAYS IN FILING THE APPEA L BEFORE CIT(A). HE SUBMITTED THAT AGAINST THIS ORDER OF CIT(A) IN QUAN TUM PROCEEDINGS ALSO, THE ASSESSEE FILED AN APPEAL BEFORE TRIBUNAL AND HE FIL ED THE COPY OF TRIBUNAL ORDER RENDERED IN ASSESSEES OWN CASE IN ITA NO. 19 28/BANG/2017 DATED 06.12.2017 AND POINTED OUT THAT AS PER PARA 4.3.3 O F THIS TRIBUNAL ORDER, THE TRIBUNAL HAS CONDONED THE DELAY OF 229 DAYS IN FILI NG THE APPEAL BEFORE CIT(A) BY FOLLOWING THE JUDGEMENT OF HONBLE APEX C OURT RENDERED IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & OTHERS AS REPORTED IN ITA NO. 2727/BANG/2017 PAGE 3 OF 6 (1987) 167 ITR 471(SC). HE ALSO SUBMITTED THAT THE EXPLANATION OF THE ASSESSEE ABOUT REASONS FOR DELAY IN FILING THE APPE AL BEFORE CIT (A) IN QUANTUM AND PENALTY PROCEEDINGS ARE SAME AND THEREF ORE, IN WAS HIS SUBMISSION THAT THE DELAY IN FILING OF APPEAL IN PE NALTY PROCEEDINGS SHOULD ALSO BE CONDONED AND THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR DECISION ON MERIT. THE LD. DR OF REVENU E SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARAS 4 AND 5 FROM THE IMPUGNED ORDER OF CIT(A) BECAUSE I N THESE TWO PARAS, THE DELAY IN FILING OF APPEAL AND THE ASSESSEES EXPLAN ATION IN THIS REGARD ETC. ARE NOTED. THESE PARAS ARE AS UNDER. 4. IN THIS CASE ORDER DATED 30.09.2015, U/S 271(1)( C) OF INCOME TAX ACT, 1961, PASSED BY INCOME TAX OFFICER, WARD-7(2)( 4), BANGALORE AND THE DEMAND NOTICE WERE RECEIVED BY THE APPELLAN T 01.10.2015. HENCE, THE APPEAL WHICH HAS BEEN INSTITUTED ON 02.0 2.2016 IS FOUND TO BE DELAYED BY 94 DAYS. THE APPELLANT HAS FILED AN A PPLICATION ALONG WITH FORM 35 REQUESTING FOR CONDONATION OF THIS DEL AY. IT HAS BEEN SUBMITTED AS UNDER: 1. THE LEARNED INCOME-TAX OFFICER, WARD -7(2)(4), BANG ALORE PASSED ORDER DATED 30.09.2015 U/S 271(1)(C) OF THE INCOME TAX ACT, 1961(ACT) 2. THE SAID ORDER WAS RECEIVED BY THE APPELLANT ON 01. 10.2015. 3. THE DELAY IN FILING THE APPEAL IS DUE TO THE MISTAK E OF MY CHARTERED ACCOUNTANT AND AN AFFIDAVIT CONTAINING FU LL FACTS IS ENCLOSED TO THIS APPLICATION. 4. THE APPEAL HAD TO BE FILED BY 30.10.2015. 5. THE APPEAL IS BEING FILED ON 01.02.2016. 6. THERE IS A DELAY OF 94 DAYS IN FILING THE APPEAL. IT IS PRAYED THAT THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS), BANGLORE BE PLEASED TO CONDONE THE DELAY OF 94 DAYS IN FILING THE APPEAL AND ADMIT THE APPEAL ON MERITS IN INTEREST O F EQUITY, JUSTICE AND GOOD CONSCIENCE. AN AFFIDAVIT DATED 27-01-2016 BY THE CA OF THE APPE LLANT SHRI TP SHIVAPRASAD HAS ALSO BEEN FILED THAT MENTIONS THE F OLLOWING: I, TALURPOMPATHYSHIVAPRASAD AGED ABOUT 44 YEARS. S/ O. T.POMPAPATHY PRESENTLY RESIDING AT T-7, 3 RD FLOOR, LAKSHMI COMPLEX, NO.40, KR ROAD, BANGLORE-560002 DO HEREBY SOLEMNLY AFFIRM TO THE FOLLOWING: 1. I AM A CHARTERED ACCOUNT AND REPRESENTING SRI. W.S. BASHEER, NO564, 10TH CROSS, KR ROAD, 3RD BLOCK JAYANAGAR, BA NGALORE- 560011 BEFORE INCOME TAX AUTHORITIES. ITA NO. 2727/BANG/2017 PAGE 4 OF 6 2. I APPEARED AS AUTHORIZED REPRESENTING BEFORE THE LE ARNED ASSESSING OFFICER IN RESPECT OF INCOME TAX PROCEEDI NGS FOR AY 2012-13. 3. I RECEIVED THE ORDER U/S. 271(1)(C) OF THE ACT DATE D 30.09.2015 FOR THE ABOVE ASSESSMENT YEAR ON 05.10.2015. 4. DUE TO MY PREOCCUPATION WITH OTHER WORK, THE FACT T HAT THE APPEAL HAS TO BE FILED WITHIN 30DAYS FROM THE RECEI PT FORM THE ORDER U/S. 271(1)(C) OF THE ACT COMPLETELY ESCAPED MY ATTENTION. DURING DECEMBER, 2015 WHEN I WAS REVIEWING VARIOUS FILES, I FOUND THAT THE APPEAL HAS NOT BEEN FILED BEFORE CIT (A) AGAINST THE ASSESSMENT ORDER FOR AY 2012-13 PASSED IN THE C ASE OF SRI W.S. BASHEER. IMMEDIATELY I ENTRUSTED THE WORK OF FILLING OF THE APPEAL TO M/S. MSSV & CO. CHARTERED ACCOUNTANTS, BANGALORE. THE APPEAL FOR THE AY 2012-13 IS FILED BELATEDLY IN CASE OF SRI. W.S.BASHEER. IT IS PRAYED THAT THE DELAY IN FILING THE APPEAL MA Y KINDLY BE CONDONED AS MISTAKE IS NOT DUE TO MR. WS. BASHEER. THE DELAY HAS OCCURRED UNINTENTIONALLY IN OUR OFFICE DUE TO N UMBER OF FILES HANDLED BY US. IT IS ALSO PRAYED THAT THE DELAY TO BE CONDONED BECAUSE THE CLIENT SHOULD NOT SUFFER FROM UNINTENTI ONAL OMISSION ON PART OF HIS AUTHORISED REPRESENTATIVE. OMISSION ON PART OF HIS AUTHORISED REPRESENTATIVE. 1 HEREBY CONFIRM THAT WH AT IS STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND INFOR MATION. 5. THE SUBMISSIONS OF THE APPELLANT AND FACTS OF TH E CASE HAVE BEEN CONSIDERED. I HAVE CAREFULLY CONSIDERED THE AFFIDAV IT FILED BY SHRI TP SHIVAPRASAD, CA. THE APPELLANT HAS PLEADED THAT THE DELAY WAS DUE TO THE MISTAKE ON THE PART OF THE CA. IN THE AFFIDAVIT FILED, THE CA SHRI TP SHIVAPRASAD HAS SUBMITTED THAT THE MISTAKE IS UNINT ENTIONAL AND DUE TO LARGE NUMBER OF CASES HANDLED BY HIM. 7. NOW WE REPRODUCE PARA NO. 4.3.3 FROM THE TRIBUNA L ORDER IN ASSESSEES OWN CASE FOR SAME YEAR IN QUANTUM PROCEEDINGS. THE SAM E IS AS UNDER. 4.3.3 AS MENTIONED AND DISCUSSED AT PARA 4.3.2 (SUP RA), THE HON'BLE APEX COURT IN THE CASE OF MST. KATIJI& OTHERS (SUPR A), HAS EXPLAINED AND LAID DOWN THE PRINCIPLES TO BE KEPT IN MIND WHI LE CONSIDERING AN APPLICATION FOR CONDONATION OF DELAY. THE HON'BLE A PEX COURT HAS EMPHASIZED THAT SUBSTANTIAL JUSTICE SHOULD PREVAIL OVER TECHNICAL CONSIDERATIONS. THE HON'BLE COURT EXPLAINED THAT EV ERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APP ROACH SHOULD BE TAKEN. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MATTER. KEEPING IN MIND THE AFORESAID PRI NCIPLES LAID DOWN BY THE HON'BLE APEX COURT; THE FACT THAT A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING THE APPEAL LATE AND ALSO THE FAC T THAT THE CONDONATION OF THE DELAY AND DIRECTING THAT THE APP EAL BE ADJUDICATED ON MERITS WOULD CAUSE NO LOSS TO REVENUE AS LEGITIM ATE TAXES PAYABLE IN ACCORDANCE WITH LAW ALONE WILL BE COLLECTED, WE FIND THAT THIS IS A FIT CASE FOR CONDONATION OF DELAY OF 229 DAYS IN FILING THE APPEAL BEFORE ITA NO. 2727/BANG/2017 PAGE 5 OF 6 THE LD CIT(A) AND DO SO. WE ACCORDINGLY SET ASIDE T HE IMPUGNED ORDER OF THE LD CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE LD CIT(A) FOR CONSIDERATION AND ADJUDICATION ON MERITS OF THE GRO UNDS RAISED BY THE ASSESSEE. NEEDLESS TO ADD, THE LD CIT(A) WILL AFFO RD THE ASSESSEE AND THE AO ADEQUATE OPPORTUNITY OF BEING HEARD ON ALL I SSUES RAISED BY THE ASSESSEE IN THE APPEAL BEFORE HIM BEFORE ADJUDICATI NG THEREON IN ACCORDANCE WITH LAW. WE HOLD AND DIRECT ACCORDINGLY . CONSEQUENTLY, GROUND NO.2 OF ASSESSEE'S APPEAL IS ALLOWED. 8. FROM THE ABOVE PARA REPRODUCED FORM THE TRIBUNAL ORDER, IT IS SEEN THAT IN THAT CASE, THERE WAS DELAY OF 229 DAYS IN FILING OF APPEAL BEFORE CIT(A) AND THE SAME WAS CONDONED BY THE TRIBUNAL BY FOLLOWING THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF COLLECTO R, LAND ACQUISITION VS. MST. KATIJI& OTHERS (SUPRA). THE REASONS FOR DELAY IN FILING OF APPEAL BEFORE CIT(A) IN QUANTUM PROCEEDINGS AS WELL AS PENALTY PR OCEEDINGS ARE STATED TO BE SAME I.E. THE MISTAKE OF THE CHARTERED ACCOUNTAN T OF THE ASSESSEE. NO DIFFERENCE IN FACTS COULD BE POINTED OUT BY LD. DR OF REVENUE AND HENCE, BY RESPECTFULLY FOLLOWING THE EARLIER TRIBUNAL ORDER I N ASSESSEES OWN CASE IN QUANTUM PROCEEDINGS FOR THE SAME YEAR, WE CONDONE T HE DELAY IN THE PENALTY PROCEEDINGS ALSO AND THEREFORE, WE SET ASID E THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR CONSIDE RATION AND ADJUDICATION ON MERIT OF THE GROUNDS RAISED BY THE ASSESSEE AFTER P ROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION AT PRESENT IS CALLED FOR ON MERIT. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS 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 29 TH NOVEMBER, 2018. /MS/ ITA NO. 2727/BANG/2017 PAGE 6 OF 6 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.