Sri Puttaswamachari (HUF) , Mysore V. The Income Tax Officer Ward-1(2), Mysore

ITA 2737/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2245 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 03-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K N DHANDA
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 271(1)(c); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO S . 2 736 TO 2738 /BANG/201 8 ASSESSMENT YEAR : 20 06 - 07 SHRI PUTTASWAMACHARI [HUF], S/O. LATE SRI HONNACHARI, HANCHYA VILLAGE, KASABA HOBLI, MYSORE. PAN: AANHP7522B VS. THE INCOME TAX OFFICER, WARD 1 [2], MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE RE VENUE BY : SHRI K.N. DHANDAPANI, JCIT (DR) DATE OF HEARING : 1 3 .0 6 .201 9 DATE OF PRONOUNCEMENT : 21. 0 6 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER ALL THESE THREE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST 3 SEPARATE ORDERS OF LD. CIT(A), MYSURU DATED 22.09.2017 IN QUANTUM PROCEEDINGS FOR ASSESSMENT YEAR 2006-07, DATED 31.10.2017 FOR THE SAME ASSESSMENT YEAR 2006- 07 IN PENALTY PROCEEDINGS U/S. 271(1)(B) OF IT ACT AND DATED 31.10.2017 FOR SAME ASSESSMENT YEAR 2006-07 IN PENALTY PROCEEDINGS U/S. 271(1)(C) OF IT ACT. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THERE IS DELAY OF 188 DAYS IN FILING THESE APPEALS BEFORE THE TRIBUNAL AND ASSESSEE HAS MADE A REQUEST FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT. IT WAS SUBMITTED THAT IN THE AFFIDAVIT, IT HAS BEEN EXPLAINED THAT AFTER RECEIPT OF THE ORDER OF CIT(A), THE ASSESSEE COULD NOT IMMEDIATELY CONTACT THE AR OF ASSESSEE MR. LINGARAJE GOWDA, ADVOCATE BECAUSE OF ILL-HEALTH OF THE ASSESSEES BROTHER SHRI MANCHACHARI WHO WAS SUFFERING POOR HEALTH AND THE ITA NOS. 2736 TO 2738/BANG/2018 PAGE 2 OF 4 ASSESSEE WAS THE ONLY ONE TO LOOK AFTER HIM AND LATER ON, WHEN THE ASSESSEE RECEIVED A CALL FROM THE IT DEPARTMENT ABOUT THE ARREARS, THE ASSESSEE ALONG WITH HIS AILING BROTHER CONTACTED THE AR AND BY THEN, THE DUE DATE FOR FILING THE APPEAL HAD ALREADY EXPIRED. IT WAS SUBMITTED THAT UNDER THESE FACTS AND IN THE INTEREST OF JUSTICE, THE DELAY SHOULD BE CONDONED AND THESE APPEALS SHOULD BE ADMITTED. THE LD. DR OF REVENUE SUBMITTED THAT THIS DELAY SHOULD NOT BE CONDONED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN VIEW OF THE FACTS DISCUSSED ABOVE, IT IS SEEN THAT THE DELAY HAS BEEN CAUSED BECAUSE OF THE ILL-HEALTH OF THE ASSESSEES BROTHER AND CONSIDERING THE FACTS OF PRESENT CASE AND IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY AND ADMIT THESE THREE APPEALS. 4. REGARDING THE MERIT OF THESE APPEALS, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS PER THE ORDER OF LD. CIT(A) IN QUANTUM PROCEEDINGS, IT IS HELD BY CIT(A) THAT THE ASSESSEE FAILED TO FURNISH THE VALID PAN AS PER LAW AND STATED THAT PAN IN FORM 35 IS PRESCRIBED UNDER RULE 45 OF THE INCOME TAX RULES, 1962 AND BECAUSE OF THIS, IT IS HELD THAT THE APPEAL IS NOT ADMISSIBLE AS PER LAW. IN THIS REGARD, HE SUBMITTED A COPY OF PAN NO. RECEIVED FROM THE IT DEPARTMENT AANHP7522B AND POINTED OUT THAT THIS PAN WAS ALLOTTED ON 18.05.2014 I.E. AFTER THE INSTITUTION OF APPEAL BEFORE CIT(A) ON 28.04.2014. HE ALSO SUBMITTED THAT NO ONE COULD APPEAR BEFORE CIT(A) FOR THE SAME REASONS I.E. THE ILLNESS OF THE ASSESSEES BROTHER. HE SUBMITTED A COPY OF THE TRIBUNAL ORDER RENDERED IN THE CASE OF SHRI MANCHACHARI [HUF] VS. ITO IN ITA NOS. 2739 TO 2741/BANG/2018 DATED 12.04.2019 AND DRAWN OUR ATTENTION TO PARA 4.4 OF THIS TRIBUNAL ORDER AND POINTED OUT THAT IN THIS CASE ALSO, THE APPEAL OF ASSESSEE WAS DISMISSED BY CIT(A) FOR THE SAME REASON THAT THE ASSESSEE HAS NOT MENTIONED THE PAN IN FORM NO. 35 FILED BY THE ASSESSEE BEFORE CIT(A). THEREAFTER IN PARA 4.6.1 OF SAME TRIBUNAL ORDER, THE TRIBUNAL HELD THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE ORDER OF CIT(A) DATED 22.09.2017 IS SET ASIDE AND THE MATTER IS RESTORED BACK TO CIT(A) FOR DISPOSAL ON MERIT BECAUSE IN THAT CASE ALSO, PAN WAS OBTAINED BY THE ASSESSEE LATER AND COPY WAS FURNISHED BEFORE THE TRIBUNAL. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION. HE ALSO SUBMITTED THAT IN THE PRESENT CASE, THE ASSESSEE HAS FILED LETTER SEEKING ITA NOS. 2736 TO 2738/BANG/2018 PAGE 3 OF 4 ADJOURNMENT OF HEARING BEFORE CIT(A) ON 18.09.2017 AND HE SUBMITTED A COPY OF DULY ACKNOWLEDGED LETTER. HE ALSO SUBMITTED A COPY OF THE LETTER ISSUED BY CIT(A) DATED 11.09.2017 FIXING THE DATE OF HEARING ON 18.09.2017 AND POINTED OUT THAT IN THE SAID LETTER, THE LD. CIT(A) HAS ALSO MENTIONED THE PAN OF THE ASSESSEE. HE SUBMITTED THAT IN THE FACTS OF PRESENT CASE, THE ORDERS OF CIT(A) IN ALL THREE PROCEEDINGS SHOULD BE SET ASIDE AND THE MATTER MAY BE RESTORED BACK TO HIS FILE FOR DECISION ON MERIT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA NO. 3 OF THE ORDER OF CIT(A) IN QUANTUM PROCEEDINGS IN ITA NO. 2736/BANG/2018. THIS PARA READS AS UNDER. 3. THE ADMITTED FACTS PERTAINING TO THE APPELLANT THAT ARE STATED BOTH IN THE IMPUGNED ORDER OF ASSESSMENT AND IN THE STATEMENT OF FACTS SHOW THAT THE APPELLANT FAILED TO FURNISH A VALID PERMANENT ACCOUNT NUMBER AS PER THE STATUTORY REQUIREMENTS OF THE PROVISIONS OF SECTION 139A OF THE INCOME TAX ACT, READ WITH RULE 114 OF THE INCOME TAX RULES, 1962. THUS, THE APPELLANT ADMITTEDLY FAILED TO SATISFY THE STATUTORY REQUIREMENT OF OBTAINING AND FURNISHING THE PERMANENT ACCOUNT NUMBER. THE APPELLANT OUGHT TO HAVE OBTAINED A PERMANENT ACCOUNT NUMBER AS PER LAW AND STATED THAT PERMANENT ACCOUNT NUMBER IN FORM 35 PRESCRIBED UNDER RULE 45 OF THE INCOME TAX RULES, 1962, AS PER THE STATUTORY REQUIREMENTS CONTAINED IN THE PROVISIONS OF SECTION 249 OF THE INCOME-TAX ACT, 1961. AS THE APPELLANT ADMITTEDLY FAILED TO COMPLY WITH THE AFORESAID STATUTORY REQUIREMENT, THE APPEAL IS FOUND INADMISSIBLE, AS PER LAW. 6. AS PER ABOVE PARA REPRODUCED FROM THE ORDER OF CIT(A), IT IS SEEN THAT THE BASIS OF DECISION OF CIT(A) IS THIS THAT THE ASSESSEE FAILED TO FURNISH VALID PAN AS PER LAW AND NOT STATED THAT PAN IN FORM 35 PRESCRIBED UNDER RULE 45 OF THE INCOME TAX RULES, 1962. THE HEARING IS NOTED BY THE CIT(A) IN ITS ORDER WAS 18.09.2017. AS PER THE NOTICE OF HEARING ISSUED BY CIT(A) ON 11.09.2017, COPY AVAILABLE ON RECORD, LD. CIT(A) HAS MENTIONED THE PAN OF THE ASSESSEE AS AANHP7522B. MOREOVER, IT IS SEEN THAT ON 18.09.2017, THE ASSESSEE HAS FILED LETTER BEFORE CIT(A) SEEKING ADJOURNMENT ON THIS BASIS THAT THE ASSESSEES AR IS SUFFERING FROM VIRAL ARTHRITIS AND SEVERE JOINT PAIN. THE LD. CIT(A) HAS NOT GRANTED THE ADJOURNMENT AND DECIDED THE APPEAL OF THE ASSESSEE ON THIS BASIS THAT PAN WAS NOT FURNISHED ALTHOUGH IN THE LETTER DATED ITA NOS. 2736 TO 2738/BANG/2018 PAGE 4 OF 4 11.09.2017, LD. CIT(A) HAS MENTIONED THE PAN OF THE ASSESSEE. SIMILARLY, IN THE PROCEEDINGS U/S. 271(1)(B) OF IT ACT, EX-PARTE ORDER WAS PASSED BY CIT(A) AND IN THIS APPEAL ALSO, THE DATE OF HEARING FIXED WAS 18.09.2017. SIMILARLY, IN THE PROCEEDINGS U/S. 271(1)(C) OF IT ACT ALSO, THE ORDER OF CIT(A) IS DATED 31.10.2017 AND THIS IS ALSO EX-PARTE ORDER QUA THE ASSESSEE AND THE APPEAL WAS FIXED FOR HEARING ON 18.09.2017. CONSIDERING THE FACTS OF PRESENT CASE AS DISCUSSED ABOVE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE ALL THE THREE ORDERS OF CIT(A) AND RESTORE ALL THE 3 MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 7. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST JUNE, 2019. /MS/ 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.