Shri Shailesh Amrutlal Kotecha, RAJKOT-GUJARAT V. The Commr. of Income Tax - II, RAJKOT-GUJARAT

ITA 343/RJT/2014

• Counselvise Citation: 34324914 RSA 2014
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NOS. 342 & 343/RJT/2014 ASSESSMENT YEAR : 2008-09 & 2009-10 SHAILESH AMRUTLAL KOTECHA 6 KANTA STRI VIKAS GRUH, DHEBAR ROAD, RAJKOT PAN : AGCPK 0930 F ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX RAJKOT-II, RAJKOT / RESPONDENT / ASSESSEE BY SHRI D R ADHIA, AR / REVENUE BY SHRI AVINASH KUMAR, DR / DATE OF HEARING 30.06.2014 !'# / DATE OF PRONOUNCEMENT 16.07.2014 / ORDER THESE TWO APPEALS BY THE ASSESSEE ARE AGAINST THE C OMMON ORDER DATED 05.05.2014 OF COMMISSIONER OF INCOME-TAX, RAJKOT-II , RAJKOT U/S 119(2)(B) OF THE INCOME-TAX ACT, REJECTING THE APPLICATION OF THE AS SESSEE FOR CONDONATION OF DELAY IN FILING THE RETURN OF INCOME FOR THE AYS 2008-09 AND 2009-10. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE FILED RETURNS OF INCOME ON 26.03.2012, CLAIMING REFUND OF RS.77,105/ - AND RS.78,750/- FOR THE AYS 2008-09 AND 2009-10 RESPECTIVELY, ON ACCOUNT OF TDS DEDUCTED FROM COMMISSION INCOME. THE ASSESSEE ALSO FILED AN APPLICATION FOR CONDONATION OF DELAY ON 24.03.2014 IN FILING THE RETURN OF INCOME, WHICH WA S RECEIVED BY LD. CIT, RAJKOT-II ON 29.04.2014. IN THIS APPLICATION, IT WAS MENTIONED THAT THE RETURNS OF INCOME FOR BOTH THE ASSESSMENT YEARS WERE DELAYED DUE TO REASONABLE CAUSE. IN THE IMPUGNED ORDER, THE LD. COMMISSIONER OF INCOME-TAX, RAJKOT-I I, RAJKOT REFUSED TO CONDONE THE DELAY ON THE GROUND THAT THE ASSESSEE HAD NOT GIVEN ANY SPECIFIC REASON WHICH CAUSED THE ASSESSEE NOT TO COMPLY WITH THE STATUTOR Y OBLIGATION. AGGRIEVED WITH THE ORDER OF LD. COMMISSIONER OF INCOME-TAX, RAJKOT-II, RAJKOT, THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E SHRI D R ADHIA, AR, APPEARED AND MADE THE FOLLOWING WRITTEN SUBMISSIONS :- 1. THE ASSESSEE HAS FILED RETURNS OF INCOME CLAIM ING REFUND OF RS.77,105/- FOR A.Y. 2008-09 AND RS. 78,750/- FOR A .Y. 2009-10. THE RETURNS FILED WERE LATE AND WERE FILED ON 26-3-2012. THEREA FTER THE ASSESSEE MADE AN 2 342&343-RJT-2014 SHAILESH AMRUTLAL KOTECHA (SMC) U/S 119(2)(B) APPLICATION TO THE LD. CLT REQUESTING HIM TO CONDON E THE DELAY IN FILING THE RETURNS AS PER APPLICATION DATED 24-3-2014 ENCLOSED HERE WITH. 2. AS APPARENT FROM THE APPLICATION FOR CONDONATIO N OF DELAY, THE ASSESSEE SPECIFICALLY MENTIONS THAT MY RETURNS ARE MAINLY DELAY DUE TO REASONABLE CAUSE SINCE MY INCOME IS NOT TAXABLE AND TDS IS DUE TO REFUND TO ME I REQ UEST TO KINDLY ISSUE ORDER / AUTHORIZATION TO THE ITO TO PLEASE GRANT ME THE ABOVE REFUND BY CONDONING DELAY U/S 119(2)(B) 3. IT WAS ALSO FOUND THAT ON RECEIPT OF THE ABOVE APPLICATION, THE LD. CLT, SIR USE TO FIX HEARING AND ALSO USE TO GIVE OPPORTU NITY TO THE ASSESSEE TO SUBMIT THE EVIDENCES IN SUPPORT OF HIS CLAIM AND TH EREAFTER AFTER CONSIDERATION THEREOF HE USE TO PASS SUCH ORDERS. IN THE FOLLOWIN G CASES THE LD. CLT, SIR HAS ACCEPTED AND FOLLOWED THE ABOVE CRITERIA: 1. MAYURIBEN HITESHBHAI HATHI (APPLICATION FOR COND ONATION EXACTLY TO SIMILAR TO ABOVE MADE BY HER AND LETTER ASKING HER TO FURNISH THE EVIDENCE THEREOF BY THE LD. CLT - II, SIR IS ENCLOS ED HERE WITH FOR KIND PERUSAL. ON CONSIDERATION OF THE REASONS IN DEEP TH E LD. CIT SIR HE ALSO CONDONE THE DELAY IN THIS CASE). 2. NIRMALABEN HARILAL UNADKAR (APPLICATION FOR CON DONATION EXACTLY TO SIMILAR TO ABOVE MADE BY HER AND LETTER ASKING HER TO FURNISH THE EVIDENCE THEREOF BY THE LD. CIT -II, SIR IS ENCLOSE D HERE WITH FOR KIND PERUSAL. ON CONSIDERATION OF THE REASONS IN DEEP TH E LD. CIT SIR HE ALSO CONDONE THE DELAY IN THIS CASE). 3. PANSURIYA GIRISHBHAI JADAVBHAI (APPLICATION FOR CONDONATION EXACTLY TO SIMILAR TO ABOVE MADE BY HER AND LETTER ASKING H ER TO FURNISH THE EVIDENCE THEREOF BY THE LD. CIT -IL, SIR IS ENCLOSE D HERE WITH FOR KIND PERUSAL. THE LD. CLT SIR REJECTED TO CONDONE THE DE LAY VIDE ORDER DATED 18-7-2013 BUT THE SAID ORDER CANCELLED BY THE HON. ITAT, RAJKOT IN ITA NO. 444/RJT/2013 DATED 26-11-2013 WITH DIRECTION TO THE CIT TO CONDONE THE DELAY). 4. THUS IT IS EVIDENCE FROM THE ABOVE THAT ON RECE IPT OF THE APPLICATION MENTIONING THAT RETURNS ARE DELAYED DUE TO REASONAB LE CAUSE, THE LD. CIT, SIR USE TO GIVE OPPORTUNITY TO THE ASSESSEE TO SUBMIT H IS CASE AND THEREAFTER PASSED NECESSARY ORDERS. THE ASSESSEE HUMBLY RELY O N THE FOLLOWING DECISIONS WHEREIN IT IS PRESCRIBED THAT WHEN THERE IS FAILURE TO GIVE REASONABLE OPPORTUNITY, PRINCIPALS OF NATURAL JUSTI CE ARE VIOLATED 1. 134 ITR 214(GUJ.)-CIT V/S.VALIMOHMAD AHMEDBHAI 2. 249 ITR 216 (SC) - TIN BOX & CO. VLS, CIT 5. THUS IT IS MANDATORY FOR THE LD. CIT TO GIVE REA SONABLE OPPORTUNITY TO THE ASSESSEE I TO SUBMIT HIS AS PER ABOVE JUDICIAL DECISIONS AS ALSO AS PER HIS OWN DECISIONS FOLLOWED IN THE CASES MENTIONED AT PA RA 3 ABOVE. 6. THE LD. CIT HOWEVER GAVE NO OPPORTUNITY THE ASS ESSEE AT ALL AND STRAIGHT WAY PASSED THE ORDER REJECTING THE APPLICA TION OF THE ASSESSEE. THIS IS AN ACTION NOT SUSTAINABLE IN THE EYE OF LAW AND AGA INST THE JUDICIAL GUIDELINES, DESERVES TO BE QUASHED. 7. MORE EVER ALSO THE ASSESSEE RELIES ON THE DECIS IONS OF THE HON. KERALA HIGH COURT (311 ITR 177) IN THE CASE OF PALA MARKET ING CO-OP. SOCIETY LTD. HAS BEEN PLEASED TO HOLD THAT THE BOARD SHOULD CONDONE THE DELAY IF FAILURE TO CO NDONE THE DELAY CAUSES GENUINE HARDSHIP TO THE ASSESSEE, NO MATTER WHETHER THE DELAY IN FILING RETURN IS METICULOUSLY EXPLAINED OR NOT 3 342&343-RJT-2014 SHAILESH AMRUTLAL KOTECHA (SMC) U/S 119(2)(B) 8. THE ASSESSEE THEREFORE HUMBLY PRAY THAT THE ORDE R PASSED BY THE LD. CIT AGAINST THE GUIDELINES OF THE HON. SUPREME COURT AN D HON. GUJARAT HIGH COURT SINCE THE ORDER PASSED BY THE LD. CIT IS EXTR EMELY AGAINST THE PROVISIONS OF THE LAW AND HE MAY BE DIRECTED TO GIV E OPPORTUNITY TO SUBMIT THE REASONS FOR DELAY AND TO PASS FRESH ORDER ACCORDING LY. THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT ON RECEIPT OF ASSESSEES APPLICATION FOR CONDONATION OF DELAY, IT WAS THE DU TY OF THE LD. CIT TO FIX THE PETITION FOR HEARING. THIS HEARING IS GRANTED BY LD. CIT IN OTHE R CASES NAMELY (I) MAYURIBEN HITESHBHAI HATHI, (II) NIRMALABEN HARILAL UNADKAR A ND (III) PANSURIYA GIRISHBHAI JADAVBHAI. THE LD. COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT HAD THE LD. CIT ALLOWED THE OPPORTUNITY TO PRODUCE THE EVIDENCE OF REASONABLE CAUSE, IN THAT EVENT THE ASSESSEE COULD HAVE PRODUCED THE NECESSARY DETA ILS WITH EVIDENCE. THE LD. COUNSEL OF THE ASSESSEE ALSO RELIED UPON THE FOLLOW ING DECISIONS WHEREIN IT IS PRESCRIBED THAT WHEN THERE IS FAILURE TO GIVE REASO NABLE OPPORTUNITY, PRINCIPLES OF NATURAL JUSTICE ARE VIOLATED. A. 134 ITR 214(GUJ.)-CIT V/S.VALIMOHMAD AHMEDBHAI B. 249 ITR 216 (SC) - TIN BOX & CO. VLS, CIT THUS, HE SUBMITTED THAT IT IS MANDATORY FOR THE LD. CIT TO GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS CASE WIT H NECESSARY EVIDENCES. SINCE SUCH OPPORTUNITY HAS NOT BEEN PROVIDED TO THE ASSES SEE, THE ACTION OF THE LD. CIT IS NOT SUSTAINABLE IN THE EYES OF LAW. THE LD. COUNSEL OF THE ASSESSEE ALSO RELIED UPON TH E DECISIONS OF HONBLE KERALA HIGH COURT IN THE CASE OF PALA MARKETING CO. OP. SOCIETY LTD. (311 ITR 177), WHEREIN IT WAS HELD THAT THE BOARD SHOULD CONDONE THE DELAY IF FAILURE TO CONDONE THE DELAY CAUSES GENUINE HARDSHIP TO THE ASSESSEE, NO M ATTER WHETHER THE DELAY IN FILING RETURN IS METICULOUSLY EXPLAINED OR NOT. IN VIEW OF THE ABOVE, THE LD. COUNSEL OF THE ASSES SEE SUBMITTED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT BE SET ASIDE A ND HE MAY BE DIRECTED TO ALLOW THE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE NECE SSARY DETAILS OF REASONABLE CAUSE AND EVIDENCE THEREOF. 4. ON THE OTHER HAND, SHRI AVINASH KUMAR, DR, APPEA RED FOR THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT. HE POINTED OUT THAT IT WAS THE DUTY OF 4 342&343-RJT-2014 SHAILESH AMRUTLAL KOTECHA (SMC) U/S 119(2)(B) THE ASSESSEE TO FURNISH THE DETAILS OF REASONABLE C AUSE WITH EVIDENCES ALONGWITH APPLICATION FOR CONDONATION OF DELAY AND SINCE THIS WAS NOT DONE, THE LD. CIT WAS HAVING NO OPTION BUT TO REJECT THE APPLICATION OF T HE ASSESSEE. 5. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT THE APPLICATION FOR CONDONATION OF DELAY OF THE ASSESSEE WAS DEFECTIVE. BE THAT IT MAY BE, IT WAS D UTY OF THE LD. CIT TO FIX BOTH THE PETITIONS FOR CONDONATION OF DELAY FOR HEARING. IN THIS CASE, BEFORE REJECTING THE APPLICATION, LD. CIT NEITHER FIXED THE APPLICATION OF THE ASSESSEE FOR HEARING NOR ASKED THE ASSESSEE TO PRODUCE NECESSARY DETAILS OF REASON ABLE CAUSE AND EVIDENCES THEREOF. I, THEREFORE, IN THE INTEREST OF JUSTICE, SET ASIDE THE IMPUGNED ORDER OF LD. CIT AND DIRECT HIM TO ALLOW AN OPPORTUNITY TO THE ASSES SEE TO FURNISH THE DETAILS OF REASONABLE CAUSE ALONGWITH EVIDENCES THEREOF AND TH EREAFTER PASS AN APPROPRIATE ORDER ON THE APPLICATIONS OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, BOTH TH E APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 16.07.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- SHAILESH AMRUTLAL KOTECHA, 6 KANTA STRI VIKAS GRUH, DHEBAR ROAD, RAJKOT 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, RAJK OT-II, RAJKOT 3. ,0,1 * * 2 / CONCERNED ADDL. CIT, RANGE 2, RAJKOT 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT