Narra Bapuji, Vijayawada V. The Deputy Commissioner of Income Tax(International Taxation), Visakhapatnam

ITA 33/VIZ/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7294 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 23-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Condonation of delay
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER I.T.A. NO. 33/VIZ/2020 (ASST. YEAR : 201 5 - 1 6 ) NARRA BAPUJI, D.NO. 40 - 25 - 22/1, NARRAVARI STREET, PATAMATALANKA, VIJAYAWADA . VS. DCIT (INTERNATIONAL TAXATION) , VISAKHAPATNAM. PAN NO. BDHPB 3775 J (APPELLANT) (RESPONDENT) ASSESSEE BY : SRI C.SUBRAHMANYAM , F CA DEPARTMENT BY : SMT. SUMAN MALIK , SR.DR DATE OF HEARING : 31 /0 3 /2021. DATE OF PRONOUNCEMENT : 31/03 /2021. O R D E R PER N.K. CHOUDHRY , JUDICIAL MEMBER BY THIS ORDER WE SHALL DISPOSE OFF THE ASSESSEES APPLICATION DATED 16 /03 /20 21 FOR CONDONATION OF DELAY. 2. DURING THE HEARING OF APPEAL, IT WAS OBSERVED BY THE BENCH THAT THERE IS A DELAY OF 52 DAYS IN THE FILING OF THE INSTANT APPEAL, THEREFORE, THE BENCH FOUND IT APPROPRIATE TO ADJUDICATE FIRST THE A PPLICATION OF ASSESSEE FOR CONDONATION OF DELAY FILED ON DATED 16 TH MARCH , 2021. 2 ITA NO.33/VIZ/2020 (NARRA BAPUJI) 2.1 THE APPEAL IS REQUIRED TO BE FILED WITHIN TIME, HOWEVER , IF THE SAME IS NOT FILED WITHIN TIME THEN IT MUST BE SUPPORTED BY AN AFFIDAVIT ALONG WITH APPLICATION FOR CONDONATION OF DELAY. IN THIS CASE THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH CONDONATION OF DELAY APPLICATION SUBSEQUENT TO THE FILING OF THE APPEAL. THE QUESTION EMERGE AS TO WHETHER APPLICATION FOR CONDONATION OF DELAY, FILED AT BELATED STAGE CAN BE ENTERTAINED AND MAINTAINABLE OR NOT. 2.2 THE APEX COURT IN THE CASE OF STATE OF M.P. AND ANR VS PRADEEP KUMAR & ANR . , DECIDED ON 12 TH SEPTEMBER, 2000 {2000 SUPP (3) SCR 235} HAS HELD AS UNDER : THE OBJECT OF ENACTING RULE 3 - A IN ORDER 41 OF THE CODE SEEMS TO BE TWO - FOLD. FIRST IS, TO INFORM THE APPELLANT HIMSELF WHO FILED A TIME BARRED APPEAL THAT IT WOULD NOT BE ENTERTAINED UNLESS IT IS ACCOMPANIED BY AN APPLICATION EXPLAINING THE DELAY. SECOND IS, TO COMMUNICATE TO THE RESP ONDENT A MESSAGE THAT IT MAY NOT BE NECESSARY FOR HIM TO GET READY TO MEET THE GROUNDS TAKEN UP IN THE MEMORANDUM OF APPEAL BECAUSE THE COURT HAS TO DEAL WITH APPLICATION FOR CONDONATION OF DELAY AS A CONDITION PRECEDENT. BARRING THE ABOVE OBJECTS, WE CANN OT FIND OUT FROM THE RULE THAT IT IS INTENDED TO OPERATE AS UNREMEDIABLY OR IRREDEEMABLY FATAL AGAINST THE APPELLANT IF THE MEMORANDUM IS NOT ACCOMPANIED BY ANY SUCH APPLICATION AT THE FIRST INSTANCE. IN OUR VIEW, THE DEFICIENCY IS A CURABLE DEFECT, AND IF THE REQUIRED APPLICATION IS FILED SUBSEQUENTLY THE APPEAL CAN BE TREATED AS PRESENTED IN ACCORDANCE WITH THE REQUIREMENT CONTAINED IN RULE 3 - A OF ORDER 41 OF THE CODE. 2.3 RESPECTFULLY, FOLLOWING THE DICTUM OF THE HON'BLE APEX COURT, WE ARE OF THE CONSIDERED OPINION THE APPLICATION FOR CONDONATION OF DELAY FILED AT A LATER STAGE IS ALSO MAINTAINABLE AND ENTERTAINABLE. LET US TO PROCEED ON MERITS OF THE APPLICATION FOR CONDONATION OF DELAY. 3 ITA NO.33/VIZ/2020 (NARRA BAPUJI) 3 . T HE ASSESSEE IN ORDER TO CORROBORATE HIS CONTENTIONS AS RAISED IN THE APPLICATION UNDER CONSIDERATION AND I N SUPPORT OF CONDONATION OF DELAY, ALSO FILED HIS AFFIDAVIT . LD.AR ALSO SUBMITTED THAT THE ASSESSEE HAS ALREADY INITIATED PROCESS FOR SETTLING THE DISPUTE UNDER THE DIREC T TAX VIVAD S E VISHWAS ACT, 2020 (HEREINAFTER CALLED AS THE VSV SCHEME) WHICH IS SUBJECT TO THE ADMISSION OF THE INSTANT APPEAL. 3. 1 . LD. DR RAISED NO OBJECTION ON THE APPLICATION FOR CONDONATION OF DELAY, IF THE ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD S E VISHWAS SCHEME. 4. H EARD THE PARTIES AND CONSIDERED THE SUBMISSIONS AND DOCUMENTS SPECIFICALLY AFFIDAVIT OF THE ASSESSEE AVAILABLE ON RECORD. 4.1 . IT IS WELL SETTLED THAT BONAFIDE LIS CANNOT BE THROWN OUT ON THE BASIS OF LEGAL TECHNICALITIES AND IT IS UTMOST DUTY OF THE COURTS TO ADJUDICATE THE SAME. I T IS WELL SETTLED THAT THE PERIOD OF DELAY IS NOT RELEVANT FOR CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY. WHAT IS REQUIRED TO BE SEEN IS AS TO WHETHER A PARTY SEEKING CONDONATION OF DELAY HAS MADE OUT A SUFFICIEN T CAUSE OR NOT. 4.2 . IN THE INSTANT CASE, THE ASSESSEE HAS DEMONSTRATED THE REASONS IN ITS APPLICATION, FOR NON - FILLING OF THE APPEAL WITHIN THE TIME LIMIT. THE ASSESSEE SPECIFICALLY AVERRED THAT AS HIS REGULAR TAX CONSULTANT AT VIJAYAWADA EXPRESSED HIS INABILITY TO REPRESENT 4 ITA NO.33/VIZ/2020 (NARRA BAPUJI) ASSESSEES CASE . AS THE ASSESSEE IS NOT IN INDIA, HE HAD TO DEPEND UPON THE SERVICES OF HIS TAX CONSULTANT AT VIJAYAWADA. HE COORDINATED WITH THE TAX CONSULTANT AT HYDERABAD TO FILE THE APPEAL BEFORE ITAT . THE ASSESSEE WAS REGULARLY PURSUING WITH HIS TAX CONSULTANT AT VIJAYAWADA ABOUT THE FILING OF APPEAL. HE WAS ADVISED THAT A FEE OF RS.10,000 N EEDS TO BE PAID AS APPEAL FEE TO FILE THE APPEAL, WHICH WAS PAID BY THE ASSESSEE ON 10 TH DECEMBER, 2019. IT WAS INFORMED TO THE ASSESSEE THAT THE DUE DATE OF FILING THE APPEAL EXPIRED ON 02 ND DECEMBER, 2019. THEN IT WAS INFORMED THE ASSESSEE THAT, THE TAX CONSULTANT AT HYDERABAD WAS BUSY IN TAX SCRUTINY ASSESSMENTS OF OTHER CLIENTS TILL THE END OF DECEMBER, 2019. THEN THE APPEAL HAD BEEN DRAFTED AND SOFT COPIES WERE SENT TO THE ASSESSEE THROUGH EMAIL. IT WAS ALSO INFORMED TO THE ASSESSEE THAT, ONLY PHYSICAL LY SIGNED DOCUMENTS ARE PERMITTED WHILE FILING THE APPEAL BEFORE THE ITAT . THE ASSESSEE SENT SUCH DOCUMENTS, DULY SIGNED BY HIM , TO HIS TAX CONSULTANT AT VIJAYAWADA. HE SENT THE SAME TO HYDERABAD TAX CONSULTANT, WHO ULTIMATELY GOT THEM FILED BEFORE THE ITAT ON 23 RD JANUARY, 2020. THE EXPLANATION OF THE ASSESSEE IS SUPPORTED BY HIS AFFIDAVIT AND THE DEPARTMENT DID NOT EXPRESS REFUTE THE STAND TAKEN BY THE ASSESSEE. THE DELAY IN FILING THE APPEAL IS OCCURRED DUE TO ASSESSEE I S STAYING IN ABROAD , THEREF ORE THERE SEEMS TO BE NO MALAFIDE INTENTION FOR CAUSING DELAY BUT THE SAME PRIMA FACIE APPEARS TO BE BONAFIDE AND REASONABLE, HENCE IN OUR CONSIDERED OPINION THE ASSESSEE HAS SHOWN THE SUFFICIENT CAUSE FOR DELAY AND THEREFORE THE DELAY OF 52 DAYS IN FILING OF THE APPEAL DESERVES TO BE CONDONED. 5 ITA NO.33/VIZ/2020 (NARRA BAPUJI) EVEN THE ASSESSEE INTENDS TO GET SETTLED THE DISPUTE THROUGH THE VSV SCHEME AND HAS ALREADY INITIATED THE PROCESS AND WILLING TO PAY THE RELEVANT TAXES. IT IS THE PUBLIC POLICY OF NATION THAT LITIGAT IONS MUST COME TO AN END. HENCE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES COLLECTIVELY, WE ARE INCLINED TO ADMIT THE APPEAL BY CONDONING THE DELAY OF 52 DAYS IN FILING OF THE APPEAL, CONSEQUENTLY THE DELAY STANDS CONDONED. 5 . APPEAL IS ADMITTED. 6 . THE REGISTRY IS DIRECTED TO PO ST THIS APPEAL FOR HEARING ON 29 /0 4 /2021. HEARING OF THE CASE WAS ALREADY PRONOUNCED IN THE OPEN C OURT IN THE PRESENCE OF PARTIES, HENCE NO NEED TO SEND FRESH NOTICE TO THE PARTIES. 7 . IN THE RESULT, APPLICATION FOR CONDONATION OF DELAY FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF MARCH , 2021. S D / - S D / - (D.S. SUNDER SINGH) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST MARCH , 2021. VR/ - 6 ITA NO.33/VIZ/2020 (NARRA BAPUJI) COPY TO: 1. THE ASSESSEE NARRA BAPUJI, D.NO. 40 - 25 - 22/1, NARRAVARI STREET, PATAMATALANKA, VIJAYAWADA. 2. THE REVENUE DCIT (INTERNATIONAL TAXATION) , VISAKHAPATNAM . 3. THE CIT (IT & TOP) , HYDERABAD . 4. THE CIT(A) - 10 , HYDERABAD . 5. THE D.R., VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.