Daluayi Rama Krishna , Akividu V. Income Tax Officer, Ward-2, , Bhimavaram

ITA 31/VIZ/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2857 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 24-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: K SIVA RAM KUMAR
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HONBLE ACCOUNTANT MEMBER ITA NO. 31 / VIZ /201 9 (ASST. YEAR : 20 1 1 - 1 2 ) DALUAYI RAMA KRISHNA, D.NO. 8 - 4 - 2/1, MAIN ROAD, NEAR WEDNESDAY MARKET, AKIVIDU, W.G. DISTRICT. V S . IT O , WARD - 2 , BHIMAVARAM . P AN NO. AHJPD 1632 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SIVA RAM KUMAR , CA DEPARTMENT BY : SMT. SUMAN MALIK , SR. DR DATE OF HEARING : 10 / 0 6 /201 9 . DATE OF PRONOUNCEMENT : 12 / 06 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A) - 12 , HYDERABAD , DATED 21 / 03 /201 8 FOR THE ASSESSMENT YEAR 20 1 1 - 1 2 . 2. THI S APPEAL IS BARRED BY LIMITATION BY 232 DAYS. LD.AUTHORISED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE DELAY MAY BE CONDONED AND THE ORDER PASSED BY THE LD.CIT(A) MAY BE SET ASIDE AND SENT IT BACK TO THE LD. CIT(A) TO PASS THE ORDERS ON MERITS. 2 ITA NO. 31 /VIZ/201 9 ( DALUAYI RAMA KRISHNA ) 3. LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGLY OPPOSED FOR CONDONATION OF DELAY. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE CONDONATION APPLICATION. 5. THE ASSESSEE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY, WHICH IS REPRODUCED AS UNDER: - 3. PETITIONER - APPELLANT HAS ENTRUSTED THE FILING OF APPEAL TO AN AUDITOR AT PALAKOLE. AS YOUR APPELLANT IS NOT WELL EDUCATED, HE COULDN'T UNDERSTAND THE PURPORT OF THE NOTICES SERVED ON HIM AND IT IS SUBMITTED THAT THERE WAS NO REFUSAL OF RECEIPT OF NOTICE BY ME AS STATED IN THE APPELLATE ORDER OF CIT (APPEALS); I RESPECTFULLY SUBMIT THAT THE NOTICE WOULDN'T HAVE BEEN TAKEN BY MY FAMILY MEMBERS WITH LACK OF KNOWLEDGE AND A SENSE OF FEAR. 4. YOUR PETITIONER STUDIED ONLY UP TO 9 TH CLASS AND HIS WIFE ALSO IS MUCH LESS EDUCATED. YOUR APPELLANT AND HIS FAMILY FACED SERIOUS DIFFICULTIES CAUSED BY THE DEFAULT OF THE BUYERS OF FISH, WHO ARE LOCATED IN ORISSA AND YOUR APPELLANT HAD TO ENSURE COLLECTION OF THE DUES BY STAYING IN ORISSA FOR WEEKS AND MONTHS. AFTER RECEIPT OF THE ORDERS FROM THE CIT(APPEALS) BY POST, YOUR APPELLANT HAD TO GO AND STAY IN ORISSA TO COLLECT THE RECEIVABLES FOR THE FISH SUPPLIED THRO' HIM, AS THE BUYERS OF THE FISH D IDN'T PAY AND HE WAS UNABLE TO FACE THE TREMENDOUS PRESSURE FROM THE FISH FARMERS AND YOUR APPELLANT'S FAMILY MEMBERS ALSO HAD TO LIVE ELSEWHERE TO PROTECT THEMSELVES FROM THE PRESSURE . YOUR APPELLANT HAD BEEN SHUTTLING BETWEEN AKIVIDU AND CUTTACK AND OTHE R PLACES, COLLECTING DUES IN PARTS AND REPAYING TO FISH FARMERS. IN THIS SITUATION OF SEVERE ADVERSITY AND ANXIETY, YOUR APPELLANT COULDN'T EVEN LOCATE THE ENVELOPE CONTAINING THE LD.CIT (APPEAL)'S ORDERS WHICH WAS MISPLACED AFTER ITS RECEIPT BY YOUR PETIT IONER'S WIFE AND WAS RETRIEVED ONLY VERY RECENTLY, AFTER YOUR PETITIONER WAS CONTACTED BY THE INCOME - TAX DEPARTMENT FOR PAYMENT OF REGULAR TAX, AS THE APPEAL BEFORE THE LD.CIT(APPEALS) WAS DISMISSED FOR DEFAULT. 5. THE EX PARTE DISMISSAL OF THE APPEAL BY THE LEARNED CIT (APPEALS) WAS NOT KNOWN TO YOUR PETITIONER TILL HE WAS CONTACTED BY THE INSPECTOR OF INCOME - TAX TO PAY THE TAX DEMAND. IMMEDIATELY THEREAFTER, I APPROACHED A COUNSEL AT MACHILIPATNAM AND GOT THE APPEAL MEMORANDUM PREPARED ON 21.1.2019 AND A RRANGED THE DISPATCH OF THE SAME BY POST/COURIER. 6. IT IS HUMBLY AND RESPECTFULLY SUBMITTED THAT THE APPEAL COULDN'T BE FILED IN VIEW OF THE ABOVE DIFFICULTY. IN VIEW OF THE 3 ITA NO. 31 /VIZ/201 9 ( DALUAYI RAMA KRISHNA ) ABOVE, THERE IS AN UNINTENDED DELAY OF 232(TWO HUNDRED THIRTY TWO) DAYS IN FILIN G THE APPEAL (THE APPEAL BEFORE THE HON'BLE TRIBUNAL IS DUE BY 6.6.2018, AS THE ORDER IN DISPUTE WAS SERVED ON 7.4.2018). WE FIND THAT THE REASONS ASSIGNED IN THE AFFIDAVIT ARE SUFFICIENT CAUSE FOR NON - FILING THE APPEAL IN TIME. THEREFORE, WE ARE OF THE OPINION THAT IT IS A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, DELAY IS CONDONED. 6 . L EARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) PASSED AN EX - PARTE ORDER AND PRAYED THAT MATTER MAY BE SET ASIDE TO THE LD.CIT(A) AND ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE. 7 . ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT AS MANY AS OPPORTUNITIES HAVE BEEN GRANTED BY THE LD. CIT(A) , BUT OF NO AVAIL. THEREFORE, NO FURTHER OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE AND REQUESTED TO CONFIRM THE ORDER OF THE LD. CIT(A) . 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9 . WE FIND THAT THE LD. CIT(A) AFTER GIVING SEVERAL OPPORTUN IT IES TO THE ASSESSEE PASSED AN EXPARTE ORDER BY APPLYING THE DECISION IN THE CASE OF CIT VS. MULTIPLAN (38 ITD 320) INSTEAD OF PASSING THE APPEAL ON MERITS . BY FOLLOWING THE PRINCIPLES OF NATURAL 4 ITA NO. 31 /VIZ/201 9 ( DALUAYI RAMA KRISHNA ) JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PURSUE HIS APPEAL , THEREFORE, WE SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND DIRECT HIM TO PASS THE ORDERS IN ACCORDANCE WITH LAW AFTER PROVIDING AFFORDABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALS O DIRECTED TO APPEA R BEFORE THE LD. CIT(A) ON THE DATE GIVEN FOR HEARING WITHOUT FAIL. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 2 T H DAY OF JUNE , 201 9 . S D / - S D / - (D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 2 T H JUNE , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE - DALUAYI RAMA KRISHNA, D.NO. 8 - 4 - 2/1, MAIN ROAD, NEAR WEDNESDAY MARKET, AKIVIDU, W.G. DISTRICT. 2. THE REVENUE ITO, WARD - 2 , BHIMAVARAM . 3. THE P R. CIT, RAJAHMUNDRY . 4. THE CIT(A) - 12 , HYDERABAD . 5. THE D.R . , VISAKHAPATNAM . 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SENIOR PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.