Late Rameshbhai Shankarbhai Jadav, Baroda V. The Income Tax Officer, Ward-3(2), Baroda

ITA 3478/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8284 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 23-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 144

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIA L MEMBER ./ I.T.A. NO.3478/AHD/2016 ( / ASSESSMENT YEAR : 2008-09) LATE RAMESHBHAI SHANKARBHAI JADAV L/H HANSABEN RAMESHBHAI JADAV 4, MATRUCHHAYA SOCIETY SUBHANPURA NEAR PANCHRATNA APARTMENT BARODA 390 023 / VS. THE INCOME TAX OFFICER WARD-3(2) NEW WARD-1(3)(2) BARODA % ./ ./ PAN/GIR NO. : AGEPJ 9480 F ( %( / APPELLANT ) .. ( )%( / RESPONDENT ) %(* / APPELLANT BY : SHRI SAKAR SHARMA, AR )%( +* / RESPONDENT BY : SHRI SAURABH SINGH, SR.DR ,- + / DATE OF HEARING 03/05/2018 ./01 + / DATE OF PRONOUNCEMENT 14 /05/2018 / O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II , BARODA [LD.CIT(A) IN SHORT] DATED 20.12.2012 FOR THE ASSESSMENT YEAR (AY) ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 2 - 2008-09 ARISING OUT OF THE ASSESSMENT ORDER DATED 1 4/12/2010 PASSED U/S.144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER RE FERRED TO AS 'THE ACT'). 2. BEFORE GOING INTO THE MERITS OF THE MATTER, WE W OULD LIKE TO MENTION THAT THERE IS A DELAY OF 1390 DAYS IN PREFE RRING THE INSTANT APPEAL BY THE ASSESSEE. THE ASSESSEE SUBMITTED AN AFFIDAV IT AFFIRMED ON 26/12/2016 EXPLAINING THE DELAY PRAYING FOR CONDONA TION OF THE SAME. THE RELEVANT PORTION WHEREOF READS AS FOLLOWS:- THE APPEAL IS DELAYED BY 1390 DAYS ON ACCOUNT OF F OLLOWING REASONS AND I REQUEST THE HON'BLE TRIBUNAL TO CONDO NE THE DELAY CONSIDERING THE BELOW MENTIONED FACTS: . (A) MY HUSBAND WAS CARRYING ON BUSINESS OF AUTO PA RTS IN THE NAME OF JAI MAHAKALI TRADERS AT BARODA. HE FILED R ETURN OF INCOME FOR A.Y. 2008-09 ON 30/03/2009. (B) NOTICE U/S 143(2) WAS ISSUED ON 19/09/2009 FIXING HEARING ON 28/08/2009 (AS GATHERED FROM THE ASSESSMENT ORDE R). SOON AFTER MY HUSBAND EXPIRED ON 20 TH SEPTEMBER, 2009. ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 3 - (C) SINCE I AM NOT MUCH LITERATE (I.E. STUDIED UPTO 6-7 TH STANDARD) AND WAS NOT AWARE OF FINANCIAL TRANSACTIONS UNDERTA KEN BY MY HUSBAND, HIS BUSINESS MATTERS AND HIS TAXATION MAT TERS, ONE OF MY RELATIVE WHO SAW NOTICE OF INCOME-TAX AT MY RESIDEN CE INFORMED THE ASSESSING OFFICER THROUGH PERSONAL VISIT ABOUT DEATH OF MY HUSBAND AND SUBMITTED COPY OF DEATH CERTIFICATE SOM EWHERE IN NOVEMBER, 2010. (D) THE ASSESSING OFFICER PASSED ASSESSMENT ORD ER U/S 144 ON 14/12/2010 DETERMINING INCOME OF RS.15,22,262/- BY MAKING ADDITION OF RS. 16,69,828/-IN RESPECT OF UNEXPLAINE D CREDIT CARD PAYMENTS. (E) THE ASSESSMENT ORDER SO PASSED WAS CHALLENG ED BEFORE THE LD. CIT (A) BY PREFERRING APPEAL ON 13/01/2011 WITH THE ASSISTANCE OF MY RELATIVES. (F) I KEPT ON SEEKING ADJOURNMENTS BEFORE THE LD. CIT (A) WITH THE ASSISTANCE OF MY RELATIVES BECAUSE I HAD TO ADD UCE COPIES OF CREDIT CARD STATEMENTS IN ORDER TO PROVE THAT CREDI T CARD PAYMENTS WERE NOT UNEXPLAINED BUT WHICH WERE NOT READILY IN MY POSSESSION. SOME OF THE STATEMENTS, CORRESPONDENCE WAS FOUND AT RESIDENCE ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 4 - BUT COMPLETE STATEMENTS WERE NOT IN MY POSSESSION F OR WHICH I WAS MAKING SERIOUS EFFORTS. (G) THE LD. CIT (A) PASSED EX-PARTE ORDER ON 20 /12/2012 AFFIRMING ACTION OF ASSESSING OFFICER DUE TO NONE A PPEARANCE/ NOT SEEKING ADJOURNMENT ON 19/12/2012. (H) I RECEIVED ORDER OF LD. CIT (A) ON 03/01/20 13. I APPROACHED TAX PRACTITIONER THROUGH ONE OF MY RELATIVE FOR FIL ING FURTHER APPEAL BEFORE THE HON'BLE IT AT. THE TAX PRACTITIONER ADVI SED ME TO MAKE PAYMENT OF APPEAL FEES OF RS. 10,000/-IN ORDER TO M AKE APPEAL TO THE HON'BLE ITAT. I MADE PAYMENT OF APPEAL FEES ON 17 TH JUNE, 2013. (I) THEREAFTER, TAX PRACTITIONER PREPARED APPE AL, GOT IT SIGNED FROM ME AND ALSO PREPARED AFFIDAVIT FOR CONDONATION OF DELAY WHICH WAS SIGNED BEFORE THE NOTARY ON 27/06/2013 UN DER REGISTRATION NO. 18439. COPY OF APPEAL WITH STATEME NT OF FACTS AND GROUNDS SO PREPARED ALONG WITH AFFIDAVIT, IS AN NEXED AS ANNEXURE-A. (J) I RECEIVED RECOVERY LETTER DATED 07/10/201 6- FROM THE ASSESSING OFFICER REQUESTING ME TO MAKE PAYMENT OF ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 5 - RS.6,48,070/- AND FIXING HEARING ON 17/10/2016. ON THE DATE OF HEARING I INFORMED THE ASSESSING OFFICER THAT MY AP PEAL IS PENDING BEFORE THE HON'BLE ITAT AND THEREFORE, RECOVERY MAY NOT BE PURSUED. COPY OF LETTER OF ASSESSING OFFICER AND MY REPLY IS ANNEXED AS ANNEXURE-B. (K) SUBSEQUENT TO THIS I WAS INFORMED BY ASSESSING OFFICER THROUGH TAX PRACTITIONER WHO DRAFTED THE REPLY TO R ECOVERY NOTICE THAT NO APPEAL IS PENDING BEFORE THE HON'BLE ITAT I N MY CASE. (L) TAX PRACTITIONER APPROACHED CHARTERED ACCO UNTANT AT AHMEDABAD TO INQUIRE ABOUT STATUS OF PENDENCY OF AP PEAL IN MY CASE BEFORE THE HON'BLE ITAT. THE CHARTERED ACCOUNT ANT AFTER SEARCHING THE ITAT PORTAL ONLINE AS WELL AS THROUGH PERSONAL VISIT TO THE HON'BLE TRIBUNAL INFORMED THAT NEITHER THE A PPEAL WAS PREFERRED NOR IT IS PENDING BEFORE THE HON'BLE TRIB UNAL FOR A.Y. 2008-09. (M) THE TAX PRACTITIONER ON COMING KNOW OF THIS FACT UNDER MY INSTRUCTION ADVISED CHARTERED ACCOUNTANT TO PREPARE THE APPEAL TO BE FILED BEFORE THE HON'BLE TRIBUNAL. ACCORDINGLY, REL EVANT DOCUMENTS WERE PROVIDED TO HIM INCLUDING AVAILABLE COPIES OF ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 6 - CREDIT CARD STATEMENTS ETC. COPY OF LETTER DTD 13/1 2/2016 ADDRESSED TO THE CHARTERED ACCOUNTANT IS ANNEXED AS ANNEXURE- C. (N) THE CHARTERED ACCOUNTANT PREPARED THE APPEA L, MAILED IT TO THE TAX PRACTITIONER AT BARODA FOR MY SIGNATURES. T HE APPEAL WAS SIGNED AND SENT BACK TO AHMEDABAD AND THE SAME HAS BEEN FILED ON 23/012/2016. 3. WE HAVE GONE THROUGH THE SAID AFFIDAVIT AND WE FIND THAT SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE A SSESSEE IN FILING THE INSTANT APPEAL BEFORE THE TRIBUNAL HAS BEEN SHOWN. IT IS A SETTLED PRINCIPLE OF LAW THAT THE LATCHES ON THE PART OF TH E COUNSEL OR THE CHARTERED ACCOUNTANT AS THE CASE MAY BE THE LITIGAN T SHOULD NOT SUFFER. THE LD.DR HAS NOT RAISED ANY OBJECTION IN THIS REGA RD. THE SAID DELAY IS, THEREFORE, CONDONED AND THE APPEAL OF THE ASSESSEE IS BEING DISPOSED OF ON MERIT. THE APPEAL HAS BEEN FILED BY THE ASSESSEE WITH THE FOLLOWING GROUNDS:- 1. THE LD.CIT(A) ERRED ON FACTS AND IN LAW IN DISMISSI NG APPEAL OF APPELLANT EX-PARTE. ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 7 - 2. THE LD.CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMI NG ACTION OF ASSESSING OFFICER IN PASSING ORDER U/S.144 OF TH E ACT. 3. THE LD.CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMI NG ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.16,69 ,828/- BEING PAYMENTS MADE TO VARIOUS CREDIT CARDS. 4. THE GROUND NOS.1 TO 3 ARE CO-RELATED TO EACH OTH ER. BASICALLY, THE ASSESSEE HAS CHALLENGED THE ORDER UNDER APPEAL ON THE GROUND THAT THE SAME HAS BEEN PASSED EX-PARTE BY THE CIT(A) RELYING ON THE EX-PARTE ORDER PASSED BY THE ASSESSING OFFICER (AO). 5. THE LD.AR, AT THE TIME OF HEARING OF THE MATTER, SUBMITTED AT THE OUTSET BEFORE US THAT THE ASSESSMENT ORDER WAS PAS SED EX-PARTE U/S.144 OF THE ACT BY THE AO. THE LD.CIT(A) HAS ALSO PASS ED EX-PARTE ORDER. IT WAS THUS URGED THAT THE SAME BE SENT BACK TO THE FI LE OF AO UPON CONDONING THE DELAY AND THE AO BE DIRECTED TO DECI DE THE MATTER AFRESH UPON GIVING PROPER OPPORTUNITY TO THE ASSESSEE. TH E LD.DR HAS NOT RAISED ANY SUBSTANTIVE OBJECTION IN THIS MATTER. T HEREFORE, IN THE LARGER INTEREST OF JUSTICE WE ARE INCLINED TO REMIT THE MA TTER BACK TO THE FILE OF LD.CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE RAIS ED BY THE ASSESSEE ON MERIT UPON GIVING REASONABLE AND PROPER OPPORTUNITY OF HEARING. IT IS NEEDLESS TO MENTION THAT THE ASSESSEE SHOULD CO-OPE RATE IN THE APPELLATE PROCEEDINGS AS AND WHEN CALLED FOR BY THE LD.CIT(A) . ITA NO. 3478/AH D/2016 LATE RAMESHBHAI SHANKARBHAI JADAV (L/H.HANSABEN RAMESHBHAI JADAV) VS.ITO ASST.YEAR 2008-09 - 8 - 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 14 / 0 5 /201 8 SD/- SD/- ( ) ( ) ( PRADIPKUMAR KEDIA ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14/ 05 /2018 5 ..,,. ,../ T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )%( / THE RESPONDENT. 3. 67 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-II, BARODA 5. 9:; ,7 , 7 1 , 6 / DR, ITAT, AHMEDABAD 6. ;=>- / GUARD FILE. / BY ORDER, )9 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..3.5.18 (DICTATION-PAD 11- PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3.5.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.14.5.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.5.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER..