SHRI CHANDER MOHAN ARORA., JAMMU V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, JAMMU

ITA 322/ASR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7135 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 07-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ GARG LD
• Assessee Lawyers: P N ARORA LD
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. VIKRAM SINGH YADAV , ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.322(ASR)/2019 ASSESSMENT YEAR:2013-14 CHANDER MOHAN ARORA HOUSE NO.789-A GANDHI NAGAR JAMMU (J & K) [PAN:ACCPA1863D] VS. DY. CIT CENTRAL CIRCLE, JAMMU (J&K) (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA ( LD. ADV.) RESPONDENT BY: SH. DHEERAJ GARG ( LD. DR) DATE OF HEARING: 26.07.2019 DATE OF PRONOUNCEMENT: 26.07.2019 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY TH E ASSESSEE/APPELLANT AGAINST THE ORDER DATED 12/04/2018 P ASSED BY THE LD. CIT(A)-5, LUDHIANA U/S. 250(6) OF INCOME T AX ACT, 1961 (HEREINAFTER CALLED AS THE ACT), WHEREBY THE L D. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON NON-PROSECUTION. 2 . AT THE OUTSET, IT WAS OBSERVED THAT THERE IS A DELAY OF 317 DAYS IN FILING OF THE INSTANT APPEAL, FOR WHICH TH E ASSESSEE HAS SUBMITTED THAT ASSESSEE COUNSEL SH. DEEPAK KAPAHI, CA WHO WAS HANDLING HIS CASE FROM TIME TO TIME AND FOR THE ASST. YEAR 2013-14 THE APPEAL U/S 271(1) (C ) WAS REJECTED BY THE LD. CIT(A) ON NON-PROSECUTION AND THE ORDER OF THE SAME WA S RECEIVED BY THE ASSESSEE ON 15.04.2018 AND IN THE MONTH OF 2 ITA NO.322/ASR/2019 (A.Y.2013-14) CHANDER MOHAN ARORA VS. DCIT MAY, 2018, THE ASSESSEE HANDED OVER THE APPEAL PAPER S UIT MR. DEEPAK KAPAHI, LD. CA, HOWEVER UNFORTUNATELY FATHER WHO WAS ILLING DUE TO CANCER SINCE MAY, 2008 ONWARDS AND HAD TO VISIT DELHI FOR THE TREATMENT OF HIS FATHER FROM TIME TO T IME, ULTIMATELY THE ASSESSEE COUNSEL FATHER DUE ON 15/11/2018 , THEREFORE, THE LD. CA WAS IN SHOCK AND SLIPS OUT FROM HI S MIND TO FILE THE APPEAL BEFORE THIS TRIBUNAL, THEREAFTER SOME WHERE IN THE MONTH OF APRIL, 2019, THE ASSESSEE APPROACHED HIS COUNSEL ENQUIRED OF HIS APPEAL WHICH WAS TO BE FILED TO BE BEFORE THE TRIBUNAL, HOWEVER, THE LD. CA ADVISED THE ASSESSEE TO CON SULT SOME OTHER ADVOCATE, THEREAFTER, ULTIMATELY THE APPEA L WAS FILED ON 7 TH MAY, 2019 BY SH. P.N. ARORA, THE LD. ADVOCATE AND H ENCE DUE TO THE CONTINUES ILL HEALTH AND ULTIMATELY DEMISE OF SH. DEEPAK KAPAHI, THE LD. CA WHO WAS EARLIER COUNSEL OF T HE ASSESSEEE AND THE DELAY OF 317 DAYS IS NOT INTENTIONAL BU T BONAFIDE. THE ASSESSEE IN SUPPORT OF ITS CONTENTION ALSO FILED THE AFFIDAVIT OF HIMSELF AS WELL AS OF SH. MR. DEEPAK KAPA HI, LD. CA. 3. ON THE CONTRARY, THE LD. DR REFUTED THE CLAIM OF THE ASSESSEE AND SUBMITTED THAT THERE IS INORDINATE DEALY OF 317 DAYS WHICH IS NOT LIABLE TO BE CONDONED. 4. HAVING HEARD THE APPLICATION FOR CONDONATION O F DELAY AND PERUSED THE AFFIDAVITS OF THE ASSESSEE AND ITS PREVIOU S COUNSEL THE REASONS STATED IN THE APPLICATION AND THE AFF IDAVITS SEEMS TO BE QUITE REASONABLE AND GENUINE. AS IT IS WELL SETTLED BY THE APEX COURT THAT PERIOD OF DELAY IS NOT PARAMO UNT CONSIDERATION BUT THE REASON OF DELAY HAS TO BE SEEN BY THE COURT WHILE CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY, WHICH IN THE INSTANT CASE WE FOUND IT TO BE GENUINE, 3 ITA NO.322/ASR/2019 (A.Y.2013-14) CHANDER MOHAN ARORA VS. DCIT UNINTENTIONAL AND BONAFIDE AND HENCE WE ARE INCLINED TO CONDONE THE DELAY OF 317 DAYS IN FILING THE INSTANT APPEAL. HE NCE, THE SAME STANDS CONDONED. 5. FROM THE ORDER IT REFLECTS THAT THOUGH THE LD. C IT(A) FIXED THE CASE FOR HEARING ON VARIOUS DATES, HOWEVER THE ASSESSE E NEITHER ATTENDED THE APPELLATE PROCEEDINGS NOR FILED ANY ADJOURNMENT APPLICATION AND IN THAT EVENTUALITY IT WAS OBSERVED BY THE LD. CIT(A) THAT THE APPELLANT IS NOT INTERESTE D IN PURSUING ITS APPEAL, THEREFORE, HE WAS PLEASED TO DISMISS THE APPE AL. 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ORDER IMPUGNED HEREIN. THE APPELLANT DID NOT BOTHER HIMSEL F TO APPEAR AND CO-ORDINATE WITH APPELLATE PROCEEDINGS EVEN AFTER AFFORDING VARIOUS OPPORTUNITIES. ALTHOUGH THE INSTANT APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT T O THE PRINCIPLE THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTI VE AND SLEEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DISPUTED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF LAW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE I S EXPRESSED IN THE MAXIM VIGILANTIBUS, NON DORMIENTIBUS, JURA SUB VENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEE P OVER THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOR THAN AN ABSTRACT PH ILOSOPHY, THE UNINTENTIONAL LAPSE ON THE PART OF A LITIGANT SHO ULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDI CTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAK E 4 ITA NO.322/ASR/2019 (A.Y.2013-14) CHANDER MOHAN ARORA VS. DCIT COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIBLE TO E NTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING T HE FACTS THAT THE LD. CIT(A) DID NOT PASS THE ORDER UNDER CHALL ENGE ON MERIT, HENCE WE FEEL IT APPROPRIATE AND PROPER TO RE MAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) TO DECID E AFRESH ON MERITS, WHILE AFFORDING PROPER AND REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT, IN ORDER TO FOLL OW THE PRINCIPLE OF NATURAL JUSTICE. WE ALSO FEEL IT APPROPRIATE TO DIRECT THE ASSE SSEE/APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN T HE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, THE ASSESSEE SHALL NOT BE SUBJECTE D TO ANY LENIENCY. 44 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 26.07.2019. SD/- SD/- ( VIKRAM SINGH YADAV ) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED:26.07.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) CHANDER MOHAN ARORA, HOUSE NO.789-A, GANDHI NAGA R, JAMMU (J&K) (2) THE DCIT, CENTRAL CIRCLE-JAMMU (J&K) (3) THE CIT(A)-5, LUDHIANA (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER