Shri Sarwan Singh Chandel, Solan V. ITO, Baddi

ITA 340/CHANDI/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5423 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMCCHANDIGARH BEFORE MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 340/CHD/2011 ASSESSMENT YEAR: 2005-06 SHRI SARWAN SINGH CHANDEL, VS. I.T.O., BADDI, DISTT. SOLAN (HP). BADDI (HP). PAN NO. ABZPK-6281D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY: SMT. JAISHREE SHARMA ORDER THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF CIT(A), SHIMLA DATED 22.07.2010 RELATING TO ASSESSMENT YEAR S 2005-06 AGAINST ORDER PASSED U/S 143(3) OF THE ACT. 2. THE PRESENT APPEAL IS FILED AFTER A DELAY OF 133 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION O F DELAY IN FILING THE PRESENT APPEAL. THE ASSESSEE HAD RECEIVED THE O RDER OF THE CIT(A) ON 20.09.2010 AND THE APPEAL WAS DUE TO BE FILED BY 20.11.2011. THE PRESENT APPEAL WAS FILED ON 01.04.2011 I.E. AFTER D ELAY OF 133 DAYS. THE CONTENTION OF THE ASSESSEE IN THIS BEHALF IS TH AT IT HAD DELIVERED THE DOCUMENTS FOR FILING OF THE APPEAL IN THE OFFICE OF CHARTERED ACCOUNTANT, SHRI DALEEP SHARMA. THE SAID CA WAS NOT ATTENDING TO HIS OFFICE REGULARLY DUE TO CERTAIN PERSONAL FAMILY PRO BLEMS AND WAS UNABLE TO FILE THE APPEAL IN TIME. HE REALIZED THAT THE APPEAL HAD NOT 2 BEEN FILED IN THE PRESENT CASE ONLY WHEN THE INCOME TAX AUTHORITIES CONTACTED HIM FOR DEPOSIT OF THE DEMAND RAISED IN T HE PRESENT APPEAL IN THE MONTH OF MARCH,2011. THE SAID APPEAL WAS FILED BELATEDLY ON 01.04.2011. AN AFFIDAVIT OF SHRI DALEEP SHARMA, C. A. IN THIS REGARD HAS BEEN ENCLOSED ALONGWITH THE APPLICATION FOR CON DONATION OF DELAY. THE ASSESSEE HAS ALSO FILED ON RECORD AN AFFIDAVIT TO THIS EFFECT. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT BECAUSE OF THE DEFAULT ON THE PART OF THE C.A. THE ASSESSEE SHOULD NOT BE PENALIZ ED. THE LD. DR FOR THE REVENUE POINTED OUT THAT THE PRESENT APPEAL WAS BELATEDLY FILED THOUGH THE ORDER OF THE CIT(A) WAS RECEIVED BY THE ASSESSEE ON 20.09.2010. 3. ON PERUSAL OF THE RECORD, I FIND THAT MR.DALEEP SHARMA C.A. IN HIS AFFIDAVIT DECLARED AND AFFIRMED AS UNDER : 1. THAT I AM COUNSEL OF SHRI SARWAN CHANDEL, PROP. M/S ANJUMAN ELECTRONIC, SAI ROAD BADDI, DISTT. SOLAN HIMACHAL PRADESH. 2. THAT THE CIT(A) PASSED AN ORDER U/S 250(6) OF INCOME-TAX ACT,1961 WHICH WAS RECEIVED BY THE ASSESSEE ON 20.09.2010. 3. THAT THE COPY OF THE SAID ORDER WAS GIVEN TO ME FOR FILING AN APPEAL BUT DUE TO CERTAIN FAMILY PROBLEM AT MY END I WAS NOT IN A POSITION TO ATTEND MY OFFICE REGULARLY. 4. THAT DUE TO OVERSIGHT THE APPEAL COULD NOT BE FILED IN TIME AND IT WAS ONLY I RECEIVE THE TELEPHONE CALL FROM INCOME TAX DEPARTMENT FOR PAYMENT OF PENDING TAXES THEN I FILED THE INSTANT APPEAL. 5. THAT IT WAS DUE TO MY FAULT THAT THE APPEAL COULD N OT BE FILED IN TIME FOR WHICH THE ASSESSEE SHOULD NOT SUFFER. 3 4. THE ORIGINAL AFFIDAVIT IS AVAILABLE ON RECORD. THE ASSESSEE HAS ALSO FURNISHED AN AFFIDAVIT TO THE EFFECT THAT THE ORDER OF THE CIT(A) FOR FILING AN APPEAL BEFORE THE TRIBUNAL WAS HANDED OVER TO HIS C.A. MR.DALEEP SHARMA WHO COULD NOT FILE THE APPEAL IN T IME DUE TO PERSONAL FAMILY PROBLEMS. IN THE ENTIRELY OF FACTS AND CIRCUMSTANCES OF THE CASE, WHERE THE DELAY IS ATTRIBUTABLE TO TH E CONDUCT OF THE COUNSEL OF THE ASSESSEE, WHO IN TURN HAS EXPLAINED THE DELAY, I ALLOW THE APPLICATION FILED BY THE ASSESSEE AND THE DELAY OF 133 DAYS IN FILING THE APPEAL BELATEDLY IS HEREBY CONDONED. TH E PRESENT APPEAL IS TAKEN ON RECORD. 5. THE PRESENT APPEAL WAS DECIDED BY THE CIT(A) EX- PARTE AND THE SAME WAS DISMISSED IN-LIMINE BY THE CIT(A). UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME-TAX ACT, THE CIT(A) WHILE DISPOSING OF THE APPEAL IN WRITING, IS TO STATE THE POINTS FO R DETERMINATION, THE DECISION THEREOF AND THE REASONS FOR THE DECISION. THE AFORESAID PROCEDURE PRESCRIBED UNDER THE ACT IS TO BE FOLLOWE D BY THE CIT(A) WHILE DISPOSING OF THE APPEALS EVEN EX-PARTE THE AS SESSEE. I FIND THAT IN THE PRESENT CASE, THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED IN- LIMINE AS THERE WAS ALLEGED DEFAULT BY THE ASSESSEE IN APPEARANCE BEFORE THE CIT(A). BUT FROM THE PERUSAL OF THE ORDE R OF THE CIT(A), I FIND THAT REASONABLE OPPORTUNITY OF HEARING HAS NOT BEEN AFFORDED TO THE ASSESSEE BY THE CIT(A). FOLLOWING THE PRINCIPLE OF NATURAL JUSTICE, I REMAND THE PRESENT APPEAL BACK TO THE F ILE OF CIT(A) DIRECTING HIM TO DECIDE THE ISSUE ON MERITS, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS ALLOWED FOR S TATISTICAL PURPOSES. 4 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30TH D AY OF MAY, 2011 SD/- (SUSHMA CHOWLA) JUDICIAL MEMBER DATED : 30 TH MAY,2011 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT,CHANDIGARH