Smt. Machamam C.K., Bangalore V. ITO, Bangalore

ITA 336/BANG/2011

• Counselvise Citation: 33621114 RSA 2011
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SUSAN THOMAS JOSE
• Keywords: Rectification of order; Reasonable cause; Condonation of delay
• Section: 80C; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER I.T.A. NO.336/BANG/2011 (ASSESSMENT YEAR : 2006-07) SMT. C.K. MACHAMMA, NO.994(8/174), P.B. ROAD, YELAHANKA, BANGALORE-560 063 . APPELLANT. PAN AHWPM9444R VS. INCOME TAX OFFICER, WARD 14(8), BANGALORE. .. RESPONDENT. APPELLANT BY : MR.BALRAM R. RAO. RESPONDENT BY : MRS.SUSAN THOMAS JOSE. DATE OF HEARING : 30.1.2012. DATE OF PRONOUNCEMENT : 30.1.2012. O R D E R PER N.K. SAINI, A.M. : THIS IS AN APPEAL BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER DATED 28.1.2011 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V, BAN GALURU. 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS A PPEAL : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN PASSING THE ORDER TO THE MANNER HE DID. 2. THE LEARNED CIT(A) GROSSLY ERRED IN DISMISSING THE APPEAL WHEN THE APPELLANT HUMBLY SUBMITTED THAT THE DELAY CAUSED TO FILE THE APPEAL WAS NOT INTENTIONAL, BUT WAS ONLY A BONA FIDE MISTAKE. THE LEARNED CIT(A) O UGHT TO HAVE CONSIDERED THE BONA FIDE REASONS GIVEN BY THE APPELLANT AND CONDONED TH E DELAY IN FILING THE APPEAL AND TO DISPOSE OF THE SAME ON MERITS. 2 ITA NO.336/BANG/11 3. WITHOUT PREJUDICE, THE ADDITIONS MADE IN THE AS SESSMENT ORDER HAVING BEEN NOT RECTIFIED UNDER SECTION 154 OF THE ACT, THE LEARNED CIT(A) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE IN THE INTEREST OF JUSTICE AND E QUITY. 4. THE LEARNED CIT(A), OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE APPELLANT AND ALLOWED EXEMPTION UNDER SECTION 10(10C) AND DEDUCTI ON UNDER SECTION 80C OF THE ACT AS CLAIMED BY THE APPELLANT IN FULL. 5. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED TH AT THERE WAS A SCHEME FOR VOLUNTARY RETIREMENT BY THE COMPANY WHICH SATISFIED THE CONDITIONS UNDER SECTION 10(10C) OF THE ACT READ WITH RULE 2(BA) AND THUS TH E APPELLANT WAS ENTITLED TO EXEMPTION UNDER SECTION 10(10C) OF THE ACT AS CLAIM ED. 6. ON THE FACTS THE CIT(A) OUGHT TO HAVE APPRECIAT ED THAT UNDER SIMILAR CIRCUMSTANCES THE EXEMPTION WAS ALLOWED IN THE CASE OF VOLUNTARY RETIREMENT GIVEN TO THE EMPLOYEE OF RBI BY THE HON'BLE HIGH COURT OF BOMBAY IN THE C ASE OF KOODATHIL KALLYATAN AMBUJAKSHAN REPORTED IN 219 CTR (BOM) 80, WHICH JUD GEMENT HAD BEEN ACCEPTED BY THE BOARD AND THUS BINDING AND CONSEQUENTLY THE LEA RNED CIT(A) OUGHT TO HAVE TO HAVE ALLOWED THE EXEMPTION UNDER SECTION 10(10C) OF THE ACT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) OUGHT TO HAVE ALLOWED THE RELIEF UNDER SECTION10(10C) AND DEDUCTI ON UNDER SECTION 80C OF THE ACT AS CLAIMED IN FULL AND OUGHT TO HAVE ALLOWED THE REFUN D AS PRAYED FOR BY THE APPELLANT. 8. WITHOUT PREJUDICE, THE ADDITIONS ARE ARBITRARY, EXCESSIVE AND UNREASONABLE AND OUGHT TO BE REDUCED SUBSTANTIALLY. 9. FOR THESE AND SUCH OTHER GROUNDS THAT MAYBE URG ED AT THE TIME OF HEARING THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 3. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE ACTION OF THE LEARNED CIT(A) IN DISMISSING THE APPEAL BY NOT CONDONING TH E DELAY IN FILING THE APPEAL BEFORE HIM. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FI LED HER RETURN OF INCOME ON 31.8.2006 DECLARING TOTAL INCOME OF RS.1,57,305 WHICH WAS PROCESSED UND ER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED AS THE ACT) ON 26.12. 2007. LATER ON THE ASSESSING OFFICER WHILE INVOKING THE PROVISIONS OF SECTION 154 OF THE ACT O BSERVED THAT THE ASSESSEE WHILE CLAIMING EXEMPTION UNDER SECTION 10(10C) OF THE ACT AMOUNTIN G TO RS.5 LAKHS HAD NOT ENCLOSED THE DETAILS OF THE VOLUNTARY RETIREMENT SCHEME, THEREFORE THE S AME WAS NOT VERIFIABLE. HE ALSO OBSERVED THAT THE ASSESSEE HAD NOT ENCLOSED PROOF IN SUPPORT OF DEDUCTION CLAIMED UNDER SECTION 80C TO THE TUNE OF RS.90,700. THE ASSESSING OFFICER MADE THE ADDITION OF RS.5,90,700 (RS.5,00,000 3 ITA NO.336/BANG/11 RS.90,700). AGAINST THE SAID ORDER OF THE ASSESSIN G OFFICER PASSED UNDER SECTION 154 OF THE ACT ON 27.6.2008, THE ASSESSEE PREFERRED THE APPEAL TO THE LEARNED CIT(A) WHO DISMISSED THE SAME BY OBSERVING AS UNDER : THE ASSESSING OFFICER PASSED RECTIFICATION ORDER FOR THE ASSESSMENT YEAR 2006-07 UNDER SECTION 154 OF THE I.T. ACT, 1961 ON 27.6.200 8 DETERMINING THE TOTAL INCOME AT RS.7,48,010 AGAINST THIS ORDER THE APPELLANT FILED THE APPEAL ON 23.11.2009, WITH A DELAY OF 485 DAYS. AS THE APPEAL WAS FILED BEYOND THE PRESCRIBED TIME LIMIT AND NO REASONABLE CAUSE WAS SHOWN BY THE APPELLANT THE DEL AY IS NOT CONDONED. IN VIEW OF THIS THE APPEAL IS NOT ADMITTED AND TREATED AS DISM ISSED. NOW THE ASSESSEE IS IN APPEAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DELAY BEFORE THE LEARNED CIT(A) AND EXPLAINED THE REASON FOR DELAY IN FILING THE APPEAL WITH THE LEARNED CIT(A) WHO HAS NOT APPRECIA TED THE SAME IN RIGHT PERSPECTIVE AND EVEN DID NOT CONSIDER THE APPLICATION WHILE DISMISSING T HE APPEAL IN LIMINE. IT WAS STATED THAT THE APPLICATION FILED BY THE ASSESSEE WAS RECEIVED IN T HE OFFICE OF THE LEARNED CIT(A) ON 20.12.2010. COPY OF THE SAID APPLICATION WAS FURNISHED WHICH IS AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE LEARNED CIT (A) OUGHT TO HAVE ADMITTED THE APPEAL OF THE ASSESSEE AND ALLOW THE BENEFIT UNDER SECTION 10(10C ) OF THE ACT AND 80C OF THE ACT FOR WHICH THE CLAIM OF THE ASSESSEE WAS AS PER LAW. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE IN HER R IVAL SUBMISSIONS SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT TH E APPEAL FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) WAS BARRED BY LIMITATION BY 485 DAYS AND NO EXPLANATION WAS GIVEN FOR THE DELAY. THEREFORE, THE LEARNED CIT(A) WAS JUSTIFIED IN TREA TING THE APPEAL OF THE ASSESSEE AS UNADMITTED AND DISMISSING THE SAME. 4 ITA NO.336/BANG/11 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOT ICED THAT THE ASSESSEE MOVED AN APPLICATION FOR CONDONATION OF DELAY OF 485 DAYS IN FILING THE APPE AL BEFORE THE LEARNED CIT(A) VIDE AN APPLICATION WHICH WAS RECEIVED IN THE OFFICE OF THE LEARNED CIT (A) ON 20.12.2010. HOWEVER, WHILE DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE, THE LEARNED C IT(A) HAS NOT DISCUSSED THE EXPLANATION OF THE ASSESSEE GIVEN IN THE SAID APPLICATION. WE, THEREF ORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND REMAND THE CASE TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED AFRESH AFTER PROVIDING DUE AND REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JAN., 2012.) SD/- SD/- (P. MADHAVI DEVI) (N.K. SAINI) JUDICIAL MEMB ER ACCOUNTANT MEMBER BANGALORE, DATED: 30.1.2012. *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, -BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR, ITAT, BANGALORE .