Kamal Suri, Ghaziabad V. ITO, Ghaziabad

ITA 3389/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97100 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 24-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: RAJESH GUPTA
• Keywords: Period of limitation; Corroborative evidences; Tax effect; Time period of passing order; Condonation of delay

Judgement Text

ITA NO. 3389/ DEL/ 2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO. 3 389 /DEL/201 5 A.Y. 2010 - 11 KAMAL SURI, PROP. SAI MERCHANDIN G CO., 257, SECTOR - 2, CHIRANJEEV VIHAR, GHAZIABAD (PAN: AFSPS5299G) VS. INCOME TAX OFFICER, WARD 1(3) GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJESH GUPTA, CA DEPARTMENT BY : SH. VIKRAM SAHAY, SR. DR DATE OF HEARING : 25 - 0 8 - 2015 DATE OF ORDER : 0 1 - 0 9 - 2015 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ), GHAZIABAD DATED 24.2.2015 PERTAINING TO ASSESSMENT YEAR 2010 - 11 ON THE FOLLOWING GROUNDS: - 1. IS THE HON'BLE CIT(A) LEGALLY JUSTIFIED IN PASSING THE IMPUGNED ORDER, REJECTING THE APPEAL OF THE APPELLANT ON GROUND OF DELAY IN FILING OF APPEAL BEYOND 30 DAYS, AND NOT DECI DI NG THE CASE ON 'MERITS' WHEREAS HE HAD DETAILED DISCUSSIONS WITH THE APPELLANT ON THE 'MERITS OF THE CASE' ITA NO. 3389/ DEL/ 2015 2 DURING PERSONAL HEARINGS HELD ON 16.1.201S AND 24.2.2 015 AND ALSO TAKING ON RECORD APPELLANT'S DETAILED SUBMISSION DATE D 24.2.201 5 ON THE FACTS OF THE CASE AND ALSO DISCUSS ING THE SAME ; 2 . IS THE HON'BLE CIT(A) LEGALLY JUSTIFIED IN 'NOT - CONDONING' THE DELAY IN FILING APPEAL WHEREAS THERE WAS SUFFICIENT CAUSE [UNDER SECTION 249(3) ] FOR NOT PRESENTING THE APPEAL WITHIN 30 DAYS LIMITATION PERIOD AS THE APPELLANT WAS SUFFERIN G FROM 'ACUTE NUROLOGICAL DISORDER CAUSING IRRATIONAL BEHAVIOR AND INABILITY TO TAKE CORRECT DECISION' AND THE APPELLANT HAD FILED CERTIFICATE FROM THE DOCTOR TO THIS EFFECT AND DULY DEMONSTRATED THAT THE DELAY IN FILING OF APPEAL WAS NOT MALAFIDE, DELIBER ATE OR INTENTIONAL, BUT EX - FACIE BONAFIDE OCCASIONED ENT IR ELY BY THE ILLNESS OF THE APPELLANT; 3. IS THE HON'BLE CIT(A) LEGALLY JUSTIFIED IN 'NOT - CONDONING' THE DELAY IN FILING THE APPEAL WHEREAS THE APPELLANT HAS DEMONSTRATED SUFFICIENT CAUSE FOR DELAY I N FILING APPEAL AND WHEREAS HON'BLE APEX COURT AND HIGH COURTS COURT HAVE CONSISTENTLY HELD THAT A LIBERAL APPROACH SHOULD BE ADOPTED WHILE CONSIDERING APPLICATIONS FOR CONDONATION OF DELAY AS THE OBJECT OF ITA NO. 3389/ DEL/ 2015 3 ADMINISTRATION OF JUSTICE IS ADJUDICATION ON MERI TS OF THE MATTER AND NOT DENIAL OF PETITIONER'S RIGHTS ON TECHNICAL / PROCEDURAL GROUNDS RESULTING FROM INVOKING LIMITATION. 2. T HE FACTS NARRATED BY THE REVENUE AUTHORIT IES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING SHRI RAJESH GUPTA, CA/ AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND STATED THAT THE ASSESSEE IS A POOR AND VERY SMALL B USINESSMAN WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF GARMENTS. HE STATED THAT THE ONLY TAX EFFECT IN THE PRESENT APPEAL IS RS. 6 LACS. HE FURTHER STATED THAT DUE TO BAD HEALTH OF THE ASSESSEE, ASSESSEE COULD NOT FILE APPEAL WITHIN TIME BEFORE THE LD. FIRST APPELLATE AUTHORITY FOR THAT ASSESSEE HAS FILED A CERTIFICATE FROM THE PRIME HOSPITAL, MULTI SPECIALITY, SHASTRI NAGAR, GHAZIABAD, BUT COULD NOT PRODUCE THE OTHER SUPPORTING EVIDENCE S DUE TO SHORTAGE OF TIME NOT GRANTED BY THE LD. CIT(A). H E MAKE A STATEMENT THAT ASSESSEE IS IN A POSSESSION OF ALL THE DOCUMENTARY EVIDENCE S FOR CONDONATION OF DELAY IN DISPUTE. EITHER THIS BENCH MAY BE GRANTED SOME TIME TO PRODUCE THE SAME OR DIRECTION MAY BE ISSUED TO THE LD. CIT(A) TO APPRECIATE THE EVIDEN CE TO BE PRODUCED BY THE ASSESSEE BEFORE HIM. HE STATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT TIME TO THE ASSESSEE FOR PRODUCING ITA NO. 3389/ DEL/ 2015 4 THE EVIDENCE FOR CONDONATION OF DELAY AND DISMISSED THE APPEAL OF THE ASSESSEE IN A HURRY MANNER. HE REQUESTED THAT THE M ATTER MAY BE SENT BACK TO THE LD. CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE ON CONDONATION OF DELAY AS WELL AS ON MERITS ALSO. 4. LD. DR OPPOSED THE REQUEST OF THE ASSESSEE AND STATED THAT ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE THE LD. CIT(A) F OR CONDONATION OF DELAY, THEREFORE, THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE PAPER BOOK CONTAINING PAGES 1 40 FILED BY THE LD. COUNSEL OF THE ASSESSEE IN WHICH HE HAS ATTAC HED THE APPEAL IN FORM NO. 36; STATEMENT OF FACTS; GROUNDS OF APPEAL; PRAYER; A POWER OF ATTORNEY IN FAVOUR OF MR. RAJESH GUPTA, FCA; COPY OF ORDER IN APPEAL IN ORIGINAL NO. 327/2013 - 14/GZB/354 DATED 24.2.2015; COPY OF CHALLAN FOR APPEAL; ANNEXURES I TO 8. 5.1 NO DOUBT THAT THE TAX DEMANDED BY THE REVENUE AUTHORITIES IN THE PRESENT A PPEAL IS RS. 6,28,410/ - AND THE ASSESSEE IS VERY SMALL BUSINESSMAN DOING THE BUSINESS OF THE MANUFACTURING OF THE GARMENTS. ASSESSEE HAS PRODUCED ONE CERTIFICATE FR OM THE PRIMA HOSPITAL, SHASTRI NAGAR, GHAZIABAD WHICH IS AT PAGE 37 OF THE APPEAL FILED BY THE ASSESSEE. THE CONTENTS OF THE SAID CERTIFICATE IS REPRODUCED HEREUNDER TO FACILITATE READY REFERENCE: PRIME HOSPITAL, MULTI - SPECIALITY HOSPITAL, SD - 20, SHAS TRI N AGAR, GHAZIABD (UP), PH: 0120 - 2752651 TO WHOM SO EVER IT MAY CONCERN ITA NO. 3389/ DEL/ 2015 5 CERTIFIED THAT MR. KAMAL SURI S/O SHIR HARISH SURI, R/O 257, SECTOR - 2, CHIRANJIV VIHAR, GHAZIABAD HAS BEEN SUFFERING FROM ACUTE ANXIETY NURSING CAUSING INTROVENE BEHAVIOUR AND INABILITY TO TAKE CORRECT DECISION. HE IS ADVISED BED REST. HE IS UNDERGOING TR EATMENT FROM AUGUST, 2011 TILL DATE. 4/6/13 SD/ - PRAMOD SABHARWAL MCI REG. 3452 5.2 AS STATED BY THE LD. COUNSEL OF THE ASSESSEE, THAT ASSESSEE IS IN POSSESSION OF ALL THE SUPPORTING EVIDENCE S OF THE SAID CERTIFICATE DATED 4.6.2013 AND CAN PRODUCE BEFORE THIS BENCH OR BEFORE THE LD. CIT(A), IF THE MATTER IS SET ASIDE TO THE LD. CIT(A). IN THE INTEREST OF JUSTICE AND KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF T HE CONSIDERED VIEW THAT ASSESSEE IS ENTITLED FOR ONE MORE OPPORTUNITY TO PRODUCE THE SUPPORTING EVIDENCE S OF THE SAID CERTIFICATE BEFORE THE LD. CIT(A), WHO WILL DECIDE THE ISSUE OF CONDONATION OF DELAY SYMPATHETICALLY. IF THE LD. CIT(A) IS CONVINCED ON THE ISSUE OF CONDONATION OF DELAY, THEN AFTER CONDONING THE DELAY, HE SHOULD DECIDE THE ISSUE, AS PER LAW , ON MERITS AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. ITA NO. 3389/ DEL/ 2015 6 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 0 1 / 0 9 /20 15. S D / - S D / - [ L.P. SAHU ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 0 1 / 0 9 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES