Ganesh Soundarrajan, CHENNAI V. ITO Non Corporate Ward 8(2), CHENNAI

ITA 2802/CHNY/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5175 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 21-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AWAJIT RAKSHIT JCIT D R
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI S.JAYARAMAN , ACCOUNTANT MEMBER ./ I.T.A.NO.2802/CHNY/2017 / ASSESSMENT YEAR :2013-14 MR.GANESH SOUNDARRAJAN , 14,IOC DEALER, KALIAMMAN KOIL STREET, KOYAMBEDU, CHENNAI 600 107. VS. THE INCOME TAX OFFICER, NON CORPORATE WARD-8(2), CHENNAI-34. [PAN AVEPS 3255 L ] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE !' /RESPONDENT BY : MR.AWAJIT RAKSHIT, JCIT, D.R # $ %& / DATE OF HEARING : 31 - 0 5 - 201 8 '( %& / DATE OF PRONOUNCEMENT : 31 - 0 5 - 201 8 !' / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-9, CHENNAI IN ITA ITA NO.2802/CHNY/2017 :- 2 -: NO.53/CIT(A)-9/2016-17 DATED 29.08.2017 FOR TH E ASSESSMENT YEAR 2013-14. 2. SHRI S.SRIDHAR REPRESENTED ON BEHALF OF THE ASS ESSEE AND SHRI AWAJIT RAKSHIT REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY LD.A.R THAT THE ASSESSEE IS AN INDIVIDUAL, WHO IS DOING THE BUSINESS OF DEALER IN SELLING PETR OL, DIESEL AND LUBRICANTS OF INDIAN OIL CORPORATION. IT WAS A SUB MISSION THAT THE ASSESSMENT U/S.143(3) OF THE ACT IN THE CASE OF ASS ESSEE WAS COMPLETED ON 09.03.2016 AND THE ASSESSMENT ORDER WA S SERVED ON THE ABOVE ADDRESS OF ASSESSEE ON 10.03.2016. IT WAS A SUBMISSION THAT THE ASSESSMENT ORDER WAS MISPLACED IN THE FILES OF THE ASSESSEE. IT WAS A SUBMISSION THAT ONLY WHEN THE PENALTY PROCEED INGS WERE INITIATED, THE ASSESSEE WAS MADE AWARE THAT APPEAL HAS NOT BEEN FILED AGAINST THE ASSESSMENT ORDER. IMMEDIATELY, ASSESSE E TRACED THE ASSESSMENT ORDER AND THE APPEAL WAS FILED WITH A DE LAY OF 261 DAYS BEFORE THE LD.CIT(A). IT WAS A SUBMISSION THAT ON A PPEAL, THE LD.CIT(A) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL IN LIMINE . IT WAS A SUBMISSION THAT BY NOT CONDONING THE DELAY, THE ASS ESSEE HAS BEEN PUT TO SUBSTANTIAL INJUSTICE. IT WAS THE PRAYER THA T THE DELAY IN FILING OF ITA NO.2802/CHNY/2017 :- 3 -: APPEAL MAY BE CONDONED AND THE LD.CIT(A) MAY BE DIR ECTED TO DISPOSE OF THE APPEAL ON MERITS. 4. IN REPLY, LD.D.R VEHEMENTLY SUPPORTED THE ORDER OF LD.CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. CON SIDERING THE BASIC PRINCIPLES, ON APPELLATE PROCEEDINGS THAT WHE N SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EAC H OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FO R THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON-DELIBERATE DELAY. THIS PROPOSITION HAS BEEN ENU NCIATED BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LA ND ACQUISITION V. MST. KATIJI AND OTHERS IN [1987] 167 ITR 471 (SC). IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE DOES NOT DERIVE ANY BENEFIT BY NOT FILING THE APPEAL ON TIME. IN F ACT, THE EXPLANATION GIVEN BY THE ASSESSEE IS A PLAUSIBLE EXPLANATION. T HE AFFIDAVIT FILED BY THE ASSESSEE HAS ALSO NOT BEEN FOUND TO BE FALSE. T HIS BEING SO, WE ARE OF THE VIEW THAT THE DELAY OF 261 DAYS IN FILIN G OF THE APPEAL BEFORE THE LD.CIT(A) IS LIABLE TO BE CONDONED AND WE DO SO . CONSEQUENTLY DELAY IN FILING THE APPEAL BELATEDLY BEFORE THE LD. CIT(A) IS CONDONED. ITA NO.2802/CHNY/2017 :- 4 -: AND THE ISSUE IN THIS APPEAL OF ASSESSEE IS RESTORE D TO THE FILE OF LD.CIT(A) FOR ADJUDICATION ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSIO N OF HEARING ON 31ST MAY, 2018, AT CHENNAI. SD/ - SD/ - ( ) (S. JAYARAMAN) # !$ /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) % !$ / JUDICIAL MEMBER ) $ / CHENNAI * / DATED: 31 ST MAY, 2018. K S SUNDARAM + !%,- . -% / COPY TO: 1 . / APPELLANT 4. # /% / CIT 2. !' / RESPONDENT 5. -01 !%2 / DR 3. # /% () / CIT(A) 6. 15 6$ / GF