Kajodmal Sharma, Jaipur V. ITO, Jaipur

ITA 273/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5123 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA CIT DR DHK
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 273/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI KAJODMAL SHARMA VPO- BHAMBORIA, BAD KE BALAJI JAIPUR CUKE VS. THE ITO WARD- 7 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: CIOPS 7330 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI O.P. BHATEJA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/07/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28 /07/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 26-02-2014 FOR THE ASSES SMENT YEAR 2006-07 RAISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS GROSSLY ERRED IN NOT CONDONING THE D ELAY IN FILING OF APPEAL BEFORE HIM BY VIRTUE OF POWER VEST ED U/S 249(3) WITHOUT PROPERLY APPRECIATING THE REASONABLE CAUSE IN NOT FILING WITHIN THE PRESCRIBED TIME, THUS ACTION OF THE LD. CIT(A) DESERVES TO BE HELD BAD IN LAW AND THE CONSE QUENT ORDER PASSED BY THE LD. CIT(A) DESERVES TO BE SET A SIDE THE AND THE LD. CIT(A) BE DIRECTED TO DECIDE THE MATTER AFRESH ON MERITS. ITA NO. 273/JP/2014 SHRI KAJODMAL SHARMA VS. ITO , WARD- 7(4), JAIPU R . 2 1.1. THE LD. CIT(A) HAS FURTHER ERRED IN NOT APPREC IATING THE FACT THAT ASSESSMENT ORDER DISPATCHED BY THE AO ON 26- 12-2008 WAS NEVER REACHED THE APPELLANT, RESULTED I NTO DELAY IN FILING OF THE APPEAL, THUS THE ACTION OF THE LD. CIT(A) IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE, DESERVES TO BE HELD BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTIO N OF THE AO IN COMPLETING THE ASSESSMENT U/S 144 OF THE I.T. ACT WITHOUT AFFORDING ADEQUATE OPPORTUNITY TO THE ASSES SEE, ARBITRARILY, THUS THE CONSEQUENT ORDER PASSED DESER VES TO BE HELD BAD IN LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ADDIT ION OF RS. 25.50 LACS AS UNDISCLOSED INCOME OF THE ASSESSEE FR OM OTHER SOURCES ARBITRARILY. 3.1 THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING ADDI TION MADE BY THE AO ON WHIMS AND FANCIES TREATING BANK E NTRY IN RESPECT OF THE DEPOSIT OF THE SAID SUM REPRESENTIN G THE CASH DEPOSIT BY THE ASSESSEE AS UNDISCLOSED INCOME OF TH E ASSESSEE WITHOUT APPLICATION OF MIND AND WITHOUT CONSIDERING VARIOUS INFORMATION, EVIDENCE AND ANY A DVERSE MATERIAL ON RECORD, ARBITRARILY. CONSEQUENTLY, THE ADDITION SUSTAINED DESERVES TO BE DELETED. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) AGAINST THE ORDER OF THE AO AND THE SAME WAS DISMISSED BY HIM ON THE GROUND THAT THE APPEAL FILED BEFORE HIM WAS FILED LATE BY 468 DAYS. THE LD . AR OF THE ASSESSEE DURING THE COURSE OF HEARING ALSO PRAYED FOR CONDO NATION OF DELAY IN LATE ITA NO. 273/JP/2014 SHRI KAJODMAL SHARMA VS. ITO , WARD- 7(4), JAIPU R . 3 FILING THE APPEAL FOR WHICH THE ASSESSEE HAS FILED AN AFFIDAVIT WITH FOLLOWING SUBMISSIONS. 1. THAT I AM ASSESSED AT PAN: CIOPS 7330 F WITH I TO WARD- 7(4), JAIPUR 2. THAT THE ASSESSMENT IN MY CASE WAS COMPLETED VID E EX-PARTE ORDER DATED 27-12-2008 STATED TO BE DISPAT CHED ON 26-12- 20078 WHICH WAS NEVER SERVED UPON ME. 3. THAT I LEARNT ABOUT THE IMPUGNED ASSESSMENT ORDE R ONLY ON RECEIPT OF ORDER LEVYING PENALTY U/S 271(1) ((B) AND 271(1)(C) DATED 25-06-2009 WHICH WERE SERVED ON 6-0 7-2009 4. THAT APPEAL AGAINST THE SAID ASSESSMENT ORDER CO ULD NOT BE FILED DUE TO UNAVAILABILITY OF ASSESSMENT OR DER FOR WHICH REQUESTS WERE MADE TO AO VIDE LETTERS DATED 31-08-2 009 AND 9-03- 2010 AND FINALLY THE SAME WAS RECEIVED ON 9-03-2010 . 5. THAT AFTER RECEIPT OF ORDER ON 9-03-2010, I DELI VERED THE SAME TO THE OFFICE OF MY COUNSEL WHERE DUE TO S HIFTING OF THEIR OFFICE, THE PAPERS GOT DUMPED AND ULTIMATELY THEY F ILED THE APPEAL ON 21-06-2011 I.E. AFTER THE DELAY OF 468 DAYS. 6. THAT INADVERTENTLY IN FORM 25 FILED BEFORE LD. C IT(A) DATE OF SERVICE OF ORDER WAS WRONGLY MENTIONED AS 2 6-12-2008 AS AGAINST 09-03-2010, THE ORDER UNDER APPEAL WAS DESP ATCHED BY DEPARTMENT ON 27-12-2008. 7. THAT THE DELAY IN FILING OF APPEAL IS BONA FIDE AND LOOKING TO MY OLD AGE AND IN THE INTEREST OF JUSTIC E IT IS PRAYED FOR THE CONDONATION OF THE SAME. 2.2 THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A ) AND VEHEMENTLY ARGUED FOR NOT ALLOWING THE CONDONATION OF DELAY IN LATE FILING THE APPEAL BY THE ASSESSEE. ITA NO. 273/JP/2014 SHRI KAJODMAL SHARMA VS. ITO , WARD- 7(4), JAIPU R . 4 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT EMERGES FROM THE RECORD AND ARGUMENTS THAT THE DELAY OF 468 DAYS IN FILING THE APPEAL IS NOT ON ACCOUNT OF THE ASSESSEE BUT IT WAS NON-RECEIPT OF THE ASSESSMENT O RDER AND THE SAME WAS SERVED UPON HIM ON 09-03-2010. FURTHER ON RECEIPT O F THE ASSESSMENT ORDER ON 9-032010, THE SAME WAS DELIVERED TO THE O FFICE OF HIS COUNSEL WHICH COULD NOT BE LOCATED BY HIS COUNSEL DUE TO SH IFTING HIS OFFICE AND ULTIMATELY THE ASSESSEE HAD TO SUFFER. THUS THE ASS ESSEE COULD NOT FILE THE APPEAL BEFORE THE LD. CIT(A) IN TIME. IT APPEARS T HAT SUCH DELAY OF 468 DAYS MAY BE CONDONED IN VIEW OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS, 167 ITR 471 WHEREIN THE HON'BLE COURT HAS OBSERVED AS UNDER:- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELA Y BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION ' SUFFICIENT CAUS E ' IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTI CE--THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTIO N OF COURTS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON P RINCIPLE. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT IMPL Y A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE A CCORDED THE SAME TREATMENT AND THE LAW IS ADMINISTERED IN AN EVENHAN DED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEP-MOTHERLY T REATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. ITA NO. 273/JP/2014 SHRI KAJODMAL SHARMA VS. ITO , WARD- 7(4), JAIPU R . 5 'WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON-DELIBERATE DELAY.' THUS, IN VIEW OF THE DELIBERATIONS OF HON'BLE AP EX COURT IN THE CASE OF COLLECTOR , LAND ACQUISITION VS. MST. KATIJI AND OT HERS (SUPRA), THE DELAY IS CONDONED AND THE APPEAL OF THE ASSESSEE IS RES TORED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE IT AFRESH ON MERIT BY PROV IDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS T HE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28/07/201 6 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28 /07/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI KAJODMAL SHARMA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7(4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 273/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR