M/s. Medinova Diagnostics Ltd, Hyderabad V. The DCIT, Circle - 16(2), Hyderabad

ITA 29/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59118 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T DIWAKAR PRASAD
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE CHANDRA POOJARI, ACCOUNTANT MEMBER & SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO.29/HYD/2011 ASSESSMENT YEAR 2006-07 M/S MEDINOVA DIAGNOSTICS LIMITED, HYDERABAD VS THE DCIT, CIRCLE 16(2), HYDERABAD (PAN : AACCM 2130 N) APPELLANT RESPONDENT APPELLANT BY : SHRI C.P. RAMASWAMY RESPONDENT BY : SHRI T. DIWAKAR PRASAD DATE OF HEARING : 17.1.2012 DATE OF PRONOUNCEMENT : 17.1.2012 ORDER PER ASHA VIJAYARAGHAVAN, JM . THIS APPEAL PREFERRED BY THE ASSESSEE IS DIREC TED AGAINST THE ORDER PASSED BY THE CIT(A) V, HYDERABAD DATED 27.1 0.2010 AND PERTAINS TO THE ASSESSMENT YEAR 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A COMPANY ENGAGED IN THE BUSINESS OF MEDICAL DIAGNOSTIC SERVI CES. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE IT ACT, 1961 BY THE ASSESSING OFFICER AFTER MAKING CERTAIN ADDITIONS. 3. AGGRIEVED BY THE ASSESSMENT, THE ASSESSEE PREFE RRED APPEAL TO THE CIT(A). THE APPEAL HAD BEEN FILED BELATEDL Y AND THERE HAS BEEN A DELAY OF 14 DAYS IN FILING THE APPEAL BEFORE THE CIT(A). ITA NO.29/H/2011 MEDINOVA DIAGNOSTICS LTD., HYD. 2 4. THE CIT(A) HELD THAT AS PER SECTION 249 OF THE ACT, THE APPEAL IS TO BE PRESENTED WITHIN 30 DAYS OF THE DATE OF SE RVICE OF ASSESSMENT ORDER. IN THIS CASE THE APPEAL IS CLEAR LY LATE BY 14 DAYS. THE CIT(A) HAS OBSERVED THAT THE ASSESSEE HA S NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY ALONG WITH FORM NO.35 AND ALSO DURING THE APPEAL PROCEEDINGS. THE CIT(A) FURTHER HELD THAT THE ASSESSEE HAS FURNISHED FALSE INFORMATION I N THE FORM NO.35 WITH RESPECT TO SERVICE OF ASSESSMENT ORDER A ND DEMAND NOTICE BY STATING THAT THE SAME WERE SERVED ON 27.1 .2009 INSTEAD OF 12.1.2009. THE CIT(A), THEREFORE DID NO T ADMIT THE APPEAL SINCE THERE WAS NO APPLICATION OR REQUEST FO R CONDONATION OF DELAY BY THE ASSESSEE. 5. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI C.P. RAMASWAMY FILED AN AFFIDAVIT BY THE DIRECTOR OF THE COMPANY VIZ., SRI. SUPRIYA B ASU TAKUR IN WHICH IT HAS BEEN AFFIRMED AS FOLLOWS: THIS IS TO AVER THAT DUE TO INADVERTENCE IN MY OFF ICE THE DATE OF RECEIPT OF THE IMPUGNED ASSESSMENT ORDER WA S NOT COMMUNICATED TO THE CHARTERED ACCOUNTANT, WHO FILED THE FIRST APPEAL. CONSEQUENTLY, THE DATE ON WHICH THAT ORDER WAS SENT TO THE AUDITORS VIZ., 27 TH JANUARY, 2009 WAS MISTAKENLY TAKEN AS THE DATE OF SERVICE OF THE IMPU GNED ASSESSMENT ORDER AND ACCORDINGLY ENTERED IN FORM NO .35. AS IT WAS NOT NOTICED AT THE TIME OF FILING OF THE APPEAL, NO PETITION FOR CONDONING THE DELAY COULD BE FILED. H OWEVER, WE DID NOT RECEIVE ANY NOTICE IN THIS REGARD FROM T HE OFFICE OF THE CIT(A) V, HYDERABAD. CONSEQUENTLY, THE REA SON FOR THE DELAY IN FILING THE FIRST APPEAL COULD NOT BE E XPLAINED. ITA NO.29/H/2011 MEDINOVA DIAGNOSTICS LTD., HYD. 3 THEREFORE IT WAS SUBMITTED THAT THE DELAY OF 14 DAY S IN FILING THE APPEAL BEFORE THE CIT(A) WAS NON DELIBERATE AND THE SAME SHOULD BE CONDONED. 6. WE HEARD BOTH PARTIES. WE FIND THAT THE APPEAL WAS DISMISSED IN LIMINE BY THE CIT(A) AND THE ASSESSEE HAD NOT SUBSTANTIATED THE REASON FOR THE DELAY OF 14 DAYS I N FILING THE APPEAL BEFORE THE CIT(A) DUE TO THE MISTAKEN BELIEF ON HIS PART WITH RESPECT TO DATE OF SERVICE OF NOTICE. AS THE ASSESSEE HAS BY AN AFFIDAVIT AFFIRMED THE REASON FOR DELAY BEFORE U S, WE DEEM IT FIT TO REMIT THE ISSUE TO THE FILE OF THE CIT(A) WH O SHALL PERUSE THE AFFIDAVIT OF THE ASSESSEE AND SHALL CONDONE THE DEL AY IF HE IS SATISFIED THAT THE DELAY IS DUE TO INADVERTENCE AND THEREAFTER DECIDE THE ISSUE ON MERITS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON : 17. 1. 2012 SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER. DATED THE 17 TH JANUARY, 2012 COPY FORWARDED TO: 1. C/O J.B. REDDY & CO., C AS, 206, SRINILAYA ESTATE, AMEERPET, HYDERABAD-500 073. 2. THE DCIT, CIRCLE 16(2), HYDERABAD 3. THE CIT(A)-V, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP/