Mr. L.Somasundaram, CHENNAI V. ACIT, CHENNAI

ITA 311/CHNY/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61149 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR YOGE SH KAMATHJCIT
• Assessee Lawyers: S SRIDHAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI N.S.SAINI, ACCOUNT ANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.311/MDS/2010 (ASSESSMENT YEAR: 2005-06) MR. L.SOMASUNDARAM, C/O. SHRI S.SRIDHAR, ADVOCATE NEW NO.14 OLD NO.82, FLAT NO.5 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI-600 020. PAN:AYPHS3314G VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-V, CHENNAI, (APPELLANT) (RESPONDENT) APPELLANT BY : MR. S.SRIDHAR, ADVOCATE RESPONDENT BY : DR. YOGE SH KAMATH,JCIT DATE OF HEARING : 31 ST MAY, 2012 DATE OF PRONOUNCEMENT : 8 TH JUNE, 2012 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE ASSESSEE HAS PREFERRED PRESENT APPEAL AGAINST THE ORDER OF THE CIT(A)-VIII, CHENNAI DATED 17.12. 2008. THE APPEAL HAS BEEN FILED WITH THE DELAY OF 396 DAYS. T HE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION O F DELAY STATING REASONS FOR THE DELAY. THE D.R. HAS OPPOSE D THE APPLICATION FOR CONDONATION OF DELAY. 2. WE HAVE GONE THROUGH THE APPLICATION CITING REAS ONS FOR DELAY OF 396 DAYS IN FILING THE APPEAL. W E ARE OF THE VIEW THAT ITA NO.311/MDS/ 2010 2 THE ASSESSEE/ APPELLANT HAS BEEN ABLE TO EXPLAIN TH E REASONS FOR DELAY IN FILING THE APPEAL. 3. THE HONBLE SUPREME COURT OF INDIA HAS REPEATEDL Y HELD THAT ACCEPTANCE OF EXPLANATION FURNISHED SHOULD BE THE RULE AND REFUSAL AN EXCEPTION. THE HONBLE APEX COURT IN TH E CASE OF RAM NATH SAHU & ORS. VS. GOBARDHAN SAO & ORS. REPOR TED AS 2002(3) SCC 195 HAS HELD THAT, WHILE CONSIDERING A PPLICATION FOR CONDONATION OF DELAY, BY TAKING A PEDANTIC AND HYPER TECHNICAL VIEW OF THE MATTER, THE EXPLANATION FURNI SHED SHOULD NOT BE REJECTED WHEN STAKES ARE HIGH AND/OR ARGUABL E POINTS OF FACTS AND LAW ARE INVOLVED IN THE CASE, CAUSING ENO RMOUS LOSS AND IRREPARABLE INJURY TO THE PARTY AGAINST WHOM TH E LIS TERMINATES EITHER BY DEFAULT OR INACTION AND DEFEAT ING VALUABLE RIGHT OF SUCH A PARTY TO HAVE THE DECISION ON MERIT AND COURTS HAVE TO STRIKE A BALANCE BETWEEN RESULTANT EFFECT O F THE ORDER, IT IS GOING TO PASS UPON THE PARTIES EITHER WAY. IN V IEW OF THE ABOVE LAW LAID DOWN BY THE HONBLE SUPREME COURT OF INDIA AND IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE , WE ARE SATISFIED THAT THE DELAY WAS DUE TO SUFFICIENT CAUS E AND EXPLAINED BY THE ASSESSEE. WE, THEREFORE, IN THE IN TEREST OF ITA NO.311/MDS/ 2010 3 JUSTICE, CONDONE THE DELAY OF 396 DAYS IN FILING TH E APPEAL AND ADMIT THE APPEAL FOR DISPOSAL. 4. THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) IN AN EX-PARTE ORDER DATED 17.12.2008 HAS DISMISSED THE APPEAL OF THE ASSESSEE. HE SUBMITTED THAT NO EFFECT IVE OPPORTUNITY OF HEARING WAS GRANTED TO THE ASSESSEE. THE CIT(A) HAS CONFIRMED THE ORDER OF THE ASSESSING OFF ICER WITHOUT APPRECIATING THE FACTS OF THE CASE. 5. ON THE OTHER HAND, THE D.R. SUBMITTED THAT AMPL E OPPORTUNITY OF HEARING WAS AFFORDED TO THE COUNSEL FOR THE ASSESSEE. DESPITE SEVERAL OPPORTUNITIES, NONE APPEA RED ON BEHALF OF THE ASSESSEE ON THE DATE OF FINAL HEARING . 6. WE HAVE GONE THROUGH THE IMPUGNED ORDER PASSED B Y THE CIT(A). A PERUSAL OF THE ORDER SHOWS THAT THE C ASE WAS ADJOURNED TWO TIMES AT THE REQUEST OF THE COUNSEL A PPEARING ON BEHALF OF THE ASSESSEE AND ON THREE OCCASIONS, N ONE APPEARED ON BEHALF OF THE ASSESSEE. ON THE FINAL DA TE OF HEARING NO ONE WAS PRESENT BEFORE THE CIT(A). THE CIT(A) DECIDED THE MATTER EX-PARTE ON MERITS IN THE ABSENC E OF THE COUNSEL FOR THE ASSESSEE. THE COUNSEL FOR THE ASSES SEE MADE ITA NO.311/MDS/ 2010 4 A STATEMENT AT BAR THAT GIVEN AN OPPORTUNITY HE HAS ALL THE MATERIALS WHICH HE CAN PRODUCE BEFORE THE CIT(A) T O DECIDE THE ISSUES UNDER CONSIDERATION ON MERITS. IN THE IN TEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REMIT THE MATTER BACK TO THE CIT(A) TO DECIDE THE MATTER AFRESH ON MERITS. WE T HEREFORE, SET ASIDE THE IMPUGNED ORDER DATED 17.12.2008 PASSE D BY THE CIT(A) AND REMIT THE MATTER BACK TO HIM FOR DEC IDING IT AFRESH, AFTER AFFORDING OPPORTUNITY OF HEARING TO T HE RESPECTIVE PARTIES. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, T HE 8 TH OF JUNE, 2012 AT CHENNAI. SD/- SD/- ( N.S. SAINI ) ( VIKAS AWASTHY ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 8 TH JUNE, 2012. SOMU COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F .