Dr Veena Manjunath, Kasargode V. ACIT, Calicut

ITA 276/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58258 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 22-11-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 23-04-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Charitable institution; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND SANJAY AROR A, AM I.T.A NOS. 276 & 277/COCH/2010 ASSESSMENT YEARS: 2002-03 & 2003-04 DR. VEENA MANJUNATH, GYNAECOLOGIST, UNITED MEDICAL CENTRE, KOTEKANI ROAD, KASARGODE-671 121. [PAN: ALPPK 9315E] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, KOZHIKODE. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI ARUN RAJ S. ADV. REVENUE BY MS. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 22/11/2011 DATE OF PRONOUNCEMENT 31/01/2012 O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF TWO APPEALS BY THE ASSESSEE AR ISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCHI (CIT (A) FOR SHORT) DATED 4.1.2010 PASSED IN COMMON IN RESPECT OF THE ASSESSEE-APPELLA NT FOR THE ASSESSMENT YEARS (AYS) 2002-03 AND 2003-04. 2. THE ISSUE ARISING IN BOTH THE APPEALS BEING COMM ON, THE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF VIDE THIS COMMON, CONSOLI DATED ORDER. 3. AT THE VERY OUTSET, IT WAS CONVEYED BY THE LD. A R, THE ASSESSEES COUNSEL, THAT THE LD. CIT(A) HAS NOT DECIDED HER APPEAL ON MERITS, BU T DISMISSED THE SAME AS NOT MAINTAINABLE, BEING BELATED BY A PERIOD OF 34 DAYS, I.E., IN VIEW OF S. 249(2) OF THE I.T.A. NOS. 276 & 277/COCH/2010 DR. VEENA MANJUNATH V. ASSTT. CIT, KOZIKODE 2 INCOME-TAX ACT, 1961 ('THE ACT', HEREINAFTER), WHIC H REQUIRES THAT THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY BE PRESENTED WITHIN A PER IOD OF 30 DAYS OF THE SERVICE OF THE NOTICE OF DEMAND RELATING TO ANY ASSESSMENT OR LEVY OF PENALTY BEING APPEALED AGAINST. ON BEING QUESTIONED WITH REGARD TO THE DELAY, IT WA S SUBMITTED BY HIM THAT THE ASSESSEES ADVOCATE WAS OUT OF STATION AT THE RELEVANT TIME. BUT THE SAME DID NOT FIND FAVOUR WITH THE LD. CIT(A) AS THE SAME COULD NOT BE SUBSTANTIAT ED. THE LD. DR, ON THE OTHER HAND, WOULD CONTEND THAT THE LD. CIT(A) HAS PASSED A WELL -REASONED AND SPEAKING ORDER, IN CONFORMITY WITH LAW, DRAWING EXTENSIVELY ON CASE LA W, WHICH STANDS CITED AT PGS. 3 AND 4 OF HIS ORDER. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 THE APPEAL IN BOTH THE CASES HAS BEEN FILED BY THE ASSESSEE ON MARCH 6, 2009, I.E., 64 DAYS AFTER ITS SERVICE, SO THAT THE LD. CIT(A) H AS CORRECTLY DETERMINED THE DELAY AT 34 DAYS AS AGAINST 22 DAYS CONTENDED BY THE ASSESSEE. SO, HOWEVER, WE ARE UNABLE TO INFER WANT OF DILIGENCE ON THE ASSESSEES PART IN PREFERR ING THE APPEALS. IT MAY NOT BE ALWAYS POSSIBLE TO CORRELATE OR MATCH EXACTLY THE DELAY WI TH THE UNDERLYING REASONS LEADING THERETO, AS THE NON-AVAILABILITY OF THE ADVOCATE FO R SOME TIME DURING FEBRUARY, 2009 IN THE INSTANT CASE, EVEN AS THE ASSESSEE, IN VIEW OF THE FAMILIARITY WITH THE ASSESSEES CASE, IS OBLIGED TO - IN THE INTEREST OF HIS CASE PREFE R HIS ADVOCATE, I.E., CHANGING THE ADVOCATE MAY NOT ALWAYS BE A VIABLE OPTION TO PREVENT THE DE LAY. WE ARE CAUTIOUS OF THE FACT THAT THE DELAY HAS TO BE SUITABLY EXPLAINED BY A REASONA BLE CAUSE EXTENDING OVER THE ENTIRE PERIOD OF DELAY, BUT THAT WOULD NOT IMPLY TAKING A PEDANTIC APPROACH IN THE MATTER, SEEKING TO EXPLAIN THE DELAY BY THE DAY, IF NOT BY THE HOUR, MORE SO WHERE IT IS NOT INORDINATE WHEN RECKONED AS A WHOLE. THE APEX COURT HAS CLARIFIED TIME AND AGAIN, AS IN THE CASE OF VEDABAI ALIAS VAIJAYANTABAI BABURAO PATIL VS. SHANT ARAM BABURAO PATIL AND OTHERS (2002) 253 ITR 798 (SC) AND COLLECTOR, LAND ACQUISITION VS. MST KATIJI AND OTHERS (1987) 167 ITR 47 1 (SC), THAT A PRAGMATIC APPROACH SHOULD INFORM THE COURTS EXERCISING THE DISCRETION ON THE FACTS OF THE CASE, KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADV ANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE AND, AS SUCH, THE SAID EXPRESSION SHOULD RECEIVE A LIBERAL CONSTRUCTION. I.T.A. NOS. 276 & 277/COCH/2010 DR. VEENA MANJUNATH V. ASSTT. CIT, KOZIKODE 3 THOUGH, NO DOUBT, SEC. 5 OF THE LIMITATION AT, 1963 IS APPLICABLE TO THE PROCEEDINGS UNDER THE ACT, THE BASIS OF THE SAID PROVISION IS T HAT THE PROCEEDINGS ATTAIN FINALITY WITH THE LAPSE OF TIME, SO THAT THE OTHER (OPPOSITE) PAR TY ACQUIRES A VESTED RIGHT THUS, WHICH CANNOT BE DIVESTED. IN THE PROCEEDINGS UNDER THE TA XATION LAWS, ON THE OTHER HAND, THE REVENUE CANNOT CLAIM A VESTED INTEREST IN RETAINING THE MONEY OF A TAX PAYER IN-AS-MUCH AS TAX CAN ONLY BE COLLECTED UNDER THE AUTHORITY OF LAW (ART. 265 OF THE CONSTITUTION OF INDIA), SO THAT DELAYS, THE CONSEQUENCE OF WHICH IS NOT SPECIFICALLY SPELT OUT UNDER THE LAW, MUST BE VIEWED WITH A DEGREE OF LATITUDE. ON T HE FACTS OF THE CASE, THE DELAY OF 34 DAYS CANNOT BE CONSIDERED AS INORDINATE SO AS TO IN FER LACHES OR NEGLIGENCE. ALSO, WE CANNOT LOOSE SIGHT OF THE FACT THAT THE CIT(A) IS T HE FIRST APPELLATE AUTHORITY, SO THAT NON- CONDONATION OF THE DELAY WOULD IMPLY ABSENCE OF ANY CONSIDERATION/REVIEW OF THE MATTER BY ANY HIGHER AUTHORITY. IN FACT, THE MEMO OF APPEA L IS SIGNED ON 24-02-2009, SO THAT THE DELAY IN PRESENTING THE APPEAL, WHICH WAS ON 06-03- 2009, WOULD NORMALLY BE ATTRIBUTABLE TO THE COUNSEL, AND WHICH THOUGH UNFORTUNATE SHOULD NOT BE ALLOWED TO PREJUDICE THE ASSESSEES CASE, PARTICULARLY IN THE MATTERS OF PRO CEDURE. 4.2 NEXT, COMING TO THE CASE LAW RELIED UPON B Y THE LD. CIT(A). IN NIHALKARAN V. CWT , 175 ITR 14 (MP), THE DELAY WAS FOR 3 MONTHS AND, SECONDLY, THE REASON/S ADVANCED ITSELF REVEALED LACHES. IN THE CASE OF CIT VS. RAM MOHAN KABRA (2002) 257 ITR 773 (P&H), THE COURT DECLINED TO INTERFERE AS IN ITS VI EW NO QUESTION OF LAW AROSE, AS WAS ALSO THE CASE IN THE CASE OF SITAL PRASAD VS. CIT , 187 ITR 135 (ALL.), WHEREIN THE APPEAL WAS FILED MUCH LATER. SIMILARLY, IN THE CASE OF SURINDER KUMAR BAVEJA VS. CWT (2006) 287 ITR 52 (DEL.), THE APPEAL WAS FILED WITH A DELAY OF 245 DAYS, WITH THE TRIBUNAL FINDING THAT THE ASSESSEE WAS IN FACT SATISFIED WITH THE ORDER O F THE FIRST APPELLATE AUTHORITY, SO THAT HE DID NOT PROPOSE TO PREFER AN APPEAL THERE-AGAINST I N THE FIRST INSTANCE. IN THE CASE OF CIT VS. NAGARMAL BISHESHAR LAL (1991) 190 ITR 468 (ALL.), ALL THAT THE HONBLE CO URT HAS CLARIFIED IS THAT THE APPEAL TO THE FIRST APPELLATE AUTHORITY WAS MAINTAINABLE IN VIEW OF THE ASSESSING OFFICER REFUSING TO CONDONE THE DELAY ATT ENDING ITS APPLICATION FOR REGISTRATION BY THE ASSESSEE-FIRM. THE CITED CASE LAWS, THUS, ST AND RENDERED IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THOSE CASES, AND DO NOT IN ANY MAN NER IMPINGE ON FACTS OF THE INSTANT I.T.A. NOS. 276 & 277/COCH/2010 DR. VEENA MANJUNATH V. ASSTT. CIT, KOZIKODE 4 CASE. A DELAY OF 38 DAYS WAS CONDONED IN THE CASE O F SREENIVAS CHARITABLE TRUST V. DY. CIT , 280 ITR 357 (MAD.), FOLLOWING INTER ALIA , THE DECISIONS IN THE CASE OF VEDABAI VS. SHANTARAM BABURAO PATIL (SUPRA) AND GANGA SAHAI RAM SWAROOP & ANR. V. ITAT , 271 ITR 512 (ALL.); THE APEX COURT HAVING CLARIFIED THA T A DISTINCTION OUGHT TO BE MADE BETWEEN AN INORDINATE DELAY THAT FOR A FEW DAYS. 5. WE, THEREFORE, UNDER THE CIRCUMSTANCES OF THE CASE, VACATING THE FINDINGS OF THE LD. CIT(A), RESTORE THE APPEALS BACK TO HIS FILE FOR A DECISION ON MERITS IN ACCORDANCE WITH LAW, AND AFTER HEARING BOTH THE SIDES. WE DECIDE A CCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWED. SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 31ST JANUARY, 2012 GJ COPY TO: 1. DR. VEENA MANJUNATH, GYNAECOLOGIST, UNITED MEDIC AL CENTRE, KOTEKANI ROAD, KASARGODE - 671 121. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRA L CIRCLE-1, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE . (ASSISTANT REGISTRAR) ITAT, COCHIN BENCH