K.Malmarugan, CHENNAI V. ACIT Non Corporate Circle 17, CHENNAI

ITA 2741/CHNY/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5233 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 14-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: R K V SUNDAR
• Section: 90

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , , BEFORE SHRI DUVVURU RL REDDY , JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NO. 2741/CHNY/2017 / ASSESSMENT YEAR : 2014-15 K. MALMARUGAN, 4/153 SELVARAJ AVENUE, KALATHUMEETTU ST, KOTTIVAKKAM, CHENNAI 600 041 [PAN: AANPM 9751H] VS. ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE -17, CHENNAI 600 034. ( / APPELLANT) ( / RESPONDENT) '( / APPELLANT BY : SHRI. R.K.V. SUNDAR, ADVOCATE +,'( / RESPONDENT BY : SHRI. N. MADHAVAN, JCIT ( /DATE OF HEARING : 05.04.2018 ( /DATE OF PRONOUNCEMENT : 09.04.2018 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI IN ITA NO. 146/CIT( A)-5/2016-17 DATED 28.08.2017 FOR ASSESSMENT YEAR 2014-15. :-2-: ITA NO: 2741/CHNY/2017 2. THE APPEAL IS FILED BELATED BY THREE DAYS. THE ASSESSEE SUBMITTED THAT THE ORDER OF THE CIT(A) WAS MISPLACED. HE HAD TO A PPLY FOR A DUPLICATE COPY, THE RECEIPT OF WHICH WAS DELAYED. HENCE, THE DELAY IN FILING THE APPEAL IS BONAFIDE AND PLEADED FOR CONDONING THE DELAY. WE HE ARD THE RIVAL CONTENTIONS AND CONDONE THE DELAY IN FILING THE APPEAL. 3. SHRI. K. MALMARUGAN, THE ASSESSEE, AN INDIVIDUAL EARNED SALARY FOR THE FIRST 10 MONTHS IN INDIA AND OTHER TWO MONTHS IN BR AZIL, WHERE TAX WAS DEDUCTED AT SOURCE. HE CLAIMED THE BENEFIT OF RELI EF U/S. 90 AND PAID THE BALANCE TAX AS SELF-ASSESSMENT TAX. WHILE COMPLETI NG THE ASSESSMENT U/S. 143(3), THE ASSESSING OFFICER REFUSED TO GRANT SUCH RELIEF FOR WANT OF DETAILS. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), BUT BELATEDLY. THE CIT(A) DISMISSED THE APPEAL FOR THE REASON THAT THE ASSESSEE HAS NOT EXPLAINED THE DELAY ON DAY TO DAY BASIS. 4. THE AR SUBMITTED THAT AT THE TIME OF FILING THE APPEAL BEFORE THE CIT(A), THE ASSESSEE WAS RESIDING IN BRAZIL AND HIS NEIGHBOUR IN INDIA IS THE ONLY PERSON TO INTIMATE ABOUT THE LETTERS RECEIVED BY THE ASSESSEE AND HENCE THE ASSESSEE WAS UNABLE TO RESPOND TO THE ORDER WIT HIN THE SPECIFIED DATE. HE PLEADED TO CONDONE THE DELAY AND DECIDE THE APPE AL ON MERITS. HOWEVER, THE LD. CIT(A) REFUSED TO CONDONE THE DELAY AND DIS MISSED THE APPEAL AS BARRED BY LIMITATION . PER CONTRA, THE DR SUPPORTE D THE ORDER OF THE CIT(A). :-3-: ITA NO: 2741/CHNY/2017 5. WE HEARD THE RIVAL SUBMISSIONS. THE ASSESSEE IS AN INDIVIDUAL AND AT THE TIME OF APPEAL, HE WAS RESIDING AT BRAZIL. HE PLEADED THAT HE HAD TOTALLY DEPENDENT ON HIS NEIGHBOUR IN INDIA AND HE HAD RECE IVED INTIMATION ABOUT THE INCOME TAX DEPARTMENT ORDER MUCH LATER AND HENCE HE WAS UNABLE TO RESPOND TO THE ORDER WITHIN THE SPECIFIED DATE. TH E SUPREME COURT HAS HELD THAT EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE WHY NOT EVERY HOURS DELAY, EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE, PRAGMATIC MANNER. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO N ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON- DELIBERATE DELAY. THERE IS NO PRESUMPTION THAT DEL AY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALAFIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING T O DELAY. IN FACT HE RUNS A SERIOUS RISK. IT MUST BE GRASPED THAT JUDICIARY IN RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUND S BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. IN T HIS CASE, THE ASSESSEE IS AN INDIVIDUAL, EARNED SALARY FOR THE FIRST 10 MONTHS I N INDIA AND OTHER TWO MONTHS IN BRAZIL, WHERE TAX WAS DEDUCTED AT SOURCE, FOR WHICH HE HAS FILED THE DETAILS BEFORE THE CIT(A) AND EXPLAINED THE REASONS FOR DELAY WHICH DO NOT APPEAR TO BE MALAFIDE. FURTHER, HE IS SEEKING RELI EF BASED ON CERTAIN MATERIAL. :-4-: ITA NO: 2741/CHNY/2017 IN THE FACTS AND CIRCUMSTANCES, WE CONDONE THE DELA Y IN FILING THE APPEAL BEFORE THE CIT(A) AND DIRECT THE CIT(A) TO HEAR THE CASE ON MERITS AND DECIDE THE ISSUE, AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MONDAY, THE 09 TH DAY OF APRIL, 2018 AT CHENNAI. SD/- ( . ' ) (DUVVURU RL REDDY) $% /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) % /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED: 09 TH APRIL, 2018 JPV (+3454 /COPY TO: 1. ' / APPELLANT 2. +,' /RESPONDENT 3. 6 ) ( /CIT(A) 4. 6 /CIT 5. 4+ /DR 6. 9 /GF