M/s. Amtex Dye Chem Industries, Ahmedabad V. The ACIT.,Circle-6, Ahmedabad

ITA 3372/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76881 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 21-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: K C THAKER
• Keywords: Principle of natural justice; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO.3372/AHD/2010 A.Y.2005-06 M/S. AMTEX DYE CHEM INDUSTRIES, PLOT NO.281, 282, PHASE-II GIDC ESTATE, VATVA, AHMEDABAD. PAN: AADFA 0481G VS ACIT, CIRCLE-6, AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.C. MATHEWS, SR.D.R., ASSESSEE(S) BY : SHRI K.C. THAKER, A.R. / DATE OF HEARING : 03/07/2014 / DATE OF PRONOUNCEMENT: 11/07/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M AN ORDER OF THE LD. CIT(A)-XVI AHMEDABAD, DATED 08.11.2010. THE APPELLANT IS MAINLY AGGRIEVED BY THE DECISION OF LEARNED CIT(A) FOR NON CONDONATION OF DELAY AND THE GROUNDS RAISED ARE AS UNDER: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL AS TIME BARRED INCORRECTLY OBSERVING THAT THERE ARE NO GROUND OF APPEAL REGARDING CONDONATION OF DELAY, IGNORING THE FACT THAT THERE WAS SPECIFIC GROUND NUMBER 4 MENTIONING THAT THE APPEAL WAS LATE BY ABOUT A MONTH AND A HALF AND REQUESTING FOR CONDONATION OF DELAY, R ELYING UPON THE HON'BLE SUPREME COURT DECISION REPORTED IN 167 ITR 471. 2. THE LEARNED CIT(A) HAVING HEARD THE APPEAL ON 27 -10-2010 AND HAVING RECEIVED WRITTEN SUBMISSIONS DT. 23-10-2010 AND 28- 10- 2010, THEREBY CLEARLY INDICATING THAT THE SMALL DELAY WAS CONDONED HAS ER RED IN LAW AND ON FACTS AND HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE IN SUBSEQUENTLY DISMISSING ITA NO.3372/AHD/2010 M/S. AMTEX DYE CHEM INDUSTRIES VS. ACIT, CIRCLE-6, AHMEDABAD. FOR A.Y. 2005-06 - 2 - THE APPEAL ON THE GROUND OF DELAY, PARTICULARLY BEC AUSE ON MERITS THE ORDER UNDER APPEAL BEFORE HIM WAS UNSUSTAINABLE IN LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CLT(A) OUGHT TO HAVE NOTICED THE SPECIFIC GROUND NU MBER 4 REQUESTING FOR CONDONATION OF DELAY AND OUGHT TO HAVE ALLOWED THE APPEAL. IT IS THEREFORE PRAYED THAT THE ORDERS OF THE LOWER AUTHORITIES MAY BE CANCELLED. 2. AN ASSESSMENT ORDER WAS PASSED U/S. 143(3) R.W.S . 264 OF IT ACT DATED 27.01.2009, CERTAIN ADDITIONS WERE MADE AND D UE TO THOSE ADDITIONS PENALTY PROCEEDINGS WERE INITIATED. AN ORDER U/S.27 1(1)(C) WAS PASSED DATED 30 TH OF JULY, 2009, THEREUPON A PENALTY OF RS.7,19,960/ - WAS LEVIED. THAT ORDER WAS CHALLENGED BEFORE LEARNED CIT(A). AC CORDING TO FORM 35 IN ADDITION TO THE GRIEVANCE RAISED AGAINST THE 271 (1)(C) ORDER THE APPELLANT HAS ALSO RAISED A GROUND IN RESPECT OF LA TE FILING OF APPEAL BEFORE LEARNED CIT(A). RELEVANT GROUND NO.4 AS PER FORM 35 WAS AS UNDER: 4. THIS APPEAL IS FILED LATE BY ABOUT A MONTH AND A HALF. THE DELAY IN FILING THE APPEAL WAS ON ACCOUNT OF CIRCUMSTANCES B EYOND THE CONTROL OF THE APPELLANT AND FOR NO FAULT ON HIS PART. IN THE CIRC UMSTANCES THE SMALL DELAY IN FILING THIS APPEAL MAY KINDLY BE CONDONED KEEPING I N VIEW THE SUPREME COURT DECISION REPORTED IN 167 ITR 471. 2.1 HOWEVER, LEARNED CIT(A) HAS NOTED THAT THE NOTI CE OF DEMAND WAS SERVED ON 31 ST OF JULY, 2009, THEREFORE, APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 30 TH OF AUGUST, 2009. ACCORDING TO LEARNED CIT(A), THER E WAS NO PRAYER FOR CONDONATION OF DELAY; HENCE, HE HAS D ISMISSED THE APPEAL IN LIMINE BEING BARRED BY LIMITATION. 3. FROM THE SIDE OF THE APPELLANT, LEARNED AR, MR. K.C. THAKER HAS OBJECTED THE MANNER IN WHICH THE APPEAL WAS DISMISS ED. HE HAS PLEADED THAT ON 20 TH OF AUGUST, 2010, THE ASSESSEE HAS ALSO RAISED AN A DDITIONAL GROUND AND THAT TOO WAS NOT DISCUSSED BY LEARNED CI T(A). FURTHER, HE HAS ITA NO.3372/AHD/2010 M/S. AMTEX DYE CHEM INDUSTRIES VS. ACIT, CIRCLE-6, AHMEDABAD. FOR A.Y. 2005-06 - 3 - PLEADED THAT THE ASSESSEE HAS SPECIFICALLY RAISED A GROUND PERTAINED TO THE DELAY IN FILING OF THE APPEAL AND IN THAT GROUND HE HAS ALSO REFERRED A DECISION OF HONBLE SUPREME COURT PRONOUNCED IN THE CASE OF COLLECTOR LAND ACQUISITION VS MST KATIJI AND OTHERS, 167 ITR 471 (SC) BUT THAT DECISION HAS ALSO NOT BEEN DEALT WITH BY LEARNED CI T(A). HE HAS ALSO MENTIONED THAT ON MERITS THE ASSESSEE HAS STRONG CA SE. 4. FROM THE SIDE OF THE REVENUE, LEARNED SR.D.R., M R. K.C. MATHEWS HAS PLEADED THAT IN THE ABSENCE OF PROPER APPLICATI ON FOR CONDONATION OF DELAY, LEARNED CIT(A) WAS JUSTIFIED IN DISMISSING T HE APPEAL. LEARNED DR HAS ALSO PLEADED THAT THE APPELLANT HAS NOT GIVEN A NY SPECIFIC REASON FOR FILING OF THE APPEAL BELATEDLY. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES. WE ARE OF THE CONSIDERED OPINION THAT THIS APPELLANT DESERVES A C HANCE TO EXPLAIN BEFORE THE REVENUE AUTHORITY, THE REASON FOR FILING OF APP EAL BELATEDLY BY ONE AND A HALF MONTH. ACCORDING TO US, LEARNED CIT(A) S HOULD HAVE GIVEN PROPER OPPORTUNITY TO DESCRIBE THE REASON FOR THE S AID DELAY. THE APPELLANT HAS FILED THE ADDITIONAL GROUND ON 20 TH OF AUGUST, 2010 AND THE ORDER WAS PASSED BY LEARNED CIT(A) ON 08.11.2010, T HEREFORE, THAT ADDITIONAL GROUND SHOULD HAVE BEEN IN THE KNOWLEDGE OF LEARNED CIT(A) BUT IT WAS NOT DECIDED. BECAUSE OF THESE REASONS, W E DEEM IT PROPER TO RESTORE THIS ISSUE, AS RAISED BEFORE US IN THE GROU NDS, BACK TO LEARNED CIT(A) WITH THE DIRECTION THAT THE QUESTION OF COND ONATION OF DELAY MAY BE DECIDED IN THE LIGHT OF A WELL KNOWN DECISION OF HONBLE SUPREME COURT PRONOUNCED IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST KATIJI AND OTHERS (SUPRA) . IF LEARNED CIT(A) CONSIDER IT PROPER TO ITA NO.3372/AHD/2010 M/S. AMTEX DYE CHEM INDUSTRIES VS. ACIT, CIRCLE-6, AHMEDABAD. FOR A.Y. 2005-06 - 4 - CONDONE THE DELAY THEN NATURALLY HE CAN PROCEED TO DECIDE THE MAIN ISSUE ON MERITS. WITH THESE DIRECTIONS, WE HEREBY ALLOW T HE GROUNDS OF THE APPEAL ONLY FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED ONLY FOR STATISTICAL PURPOSE. SD/- SD/- (N.S. SAINI) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/07/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD