Mr. Pradeep Agarwal, Bareilly V. Income Tax Officer-2(2), Bareilly

ITA 353/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4153 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI. P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T VARKEY, JUDICIAL MEMBER ITA NO.353/LKW/2016 ASSESSMENT YEAR:2008-09 MR PRADEEP AGARWAL 633, BRIJ LOK COLONY BAREILLY V. INCOME TAX OFFICER WARD 2(2) BAREILLY TAN/PAN:ABHPA5761G (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI RAJNISH YADAV, D.R. DATE OF HEARING: 28 07 2016 DATE OF PRONOUNCEMENT: 29 07 2016 O R D E R PER ABY T VARKEY, J.M: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AG AINST THE ORDER OF THE LD. CIT(A), BAREILLY DATE D 3.2.2106 FOR THE ASSESSMENT YEAR 2008- 09. 2. NONE APPEARED ON BEHALF OF TH E ASSESSEE. HOWEVER, WE ARE INCLINED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. D.R. FIRST OF ALL WE NOTICE THAT THERE IS A DELAY OF 24 DAYS IN FILING OF THE APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONA TION OF DELAY AND THE REASON OR DELAY IN FILING THE APPEAL HAS BEEN ATTR IBUTED FOR HIS SICKNESS ON ACCOUNT OF SPIN AL DISC PROBLEM AND WAS ADVISED BY THE DOCTOR TO TAKE ITA NO.353/LKW/2016, A.Y. 2008-09 2 COMPLETE BED REST FROM 13.5.2016 TO 5.6.2016. MEDICAL CERTIFICATE IN THIS REGARD HAS BEEN PERUSED BY US . HAVING CAREFULLY EXAMINED THE CONTENTS OF THE APPLICATION FOR CONDO NATION OF DELAY AND THE EVIDENCE FILED ALONG WITH IT, WE ARE OF THE VI EW THAT THERE IS A REASONABLE CAUSE FOR DELAY IN FILING OF TH E APPEAL. WE ARE, THEREF ORE, INCLINED TO CONDONE THE DELAY IN FILING OF THE APPEAL BE FORE US AND ADMIT THE APPEAL FOR HEARING, AND PROCEED TO DISPOSE OF TH E APPEAL AFTER HEARING THE LD. D.R. 2. WE HAVE HEARD THE LD. D.R. AND PERUSED THE RECORD. WE TAKE NOTE THAT THIS IS THE SECOND ROUND OF APPEAL BEFORE US. IN THE FIRST ROUND, THE TRIBUNAL IN ITA NO. 489/LKW/2013 BY ORDER DATED 17.7.2014 RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A) AND HAS ALLOWED THE ASSESSEE TO PREFER A CONDONATION APPL ICATION BEFORE THE LD. CIT(A) BY DIRECTING THE LD. CIT(A) TO DECIDE THE CONDONATION APPLICATION AND THEREAFTER TO DECIDE THE MATTER. WE FIND THAT IN THE FIRST ROUND THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE SI NCE THERE WAS NO CONDONATION APPLICATION F ILED BEFORE HIM. WHEN IT WAS AGITATED BEFORE THE TRIBUNAL, THE TRIBUNAL DIRECTED TH E ASSESSEE TO PREFER A CONDONATION APPLICATION BEFORE THE LD. CIT(A) WITH IN 30 DAYS AND WE TAKE NOTE THAT THE ASSESSEE HAD IN FACT FILED A CO NDONATION APPLICATION DATED 13.8.2014 BEFORE THE LD. CIT(A) PURSUANT TO THE ORDER OF THE TRIBUNAL DATED 17.7.2014. HOWEVER, WE NOTE THAT THE ASSESSEE HAD ATTRIBUTED THE ITA NO.353/LKW/2016, A.Y. 2008-09 3 CAUSE FOR DELAY IN FILING TH E APPEAL BEFORE THE FIRS T APPELLATE AUTHORITY AS THAT HIS COUNSEL, SHRI RAJEEV KUMA R AGARWAL, THOUGH THE ASSESSEE HAD SUBMITTED ALL THE DOCUMENTS TO THE COUNSEL, SHRI RAJEEV KUMAR AGARWAL ON 19.2.2010 ITSELF, BUT HE DID NOT F ILE THE APPEAL ON TIME AND WAS MISLEADING THE ASSESSEE. LATER ON WHEN HE CAME TO KNOW ABOUT THIS FACT OF NON-FILING OF THE APPEAL ON TIME, THE ASSESSEE CHANGED HIS COUNSEL AND THEREAFTER TH E APPEAL WAS FILED ON 4.6.2010. HOWEVER, THE LD. CIT(A) WAS NOT IMPRESSED BY THE SA ID REASON GIVEN BY THE ASSESSEE. ACCORDING TO HIM, IF THIS REASON IS ALLOWED FOR CONDONATION OF DELAY, THEN EVERY ASSESSEE WILL COME UP WITH THE SAME REASON AND THERE WILL BE NO SANCTITY FOR THE TIME LIMIT PRESCRIBED BY THE STATUTE. WE DO NOT AGREE WITH THE LD. CIT(A) ON THIS REAS ON FOR REJECTING THE CONDONATION APPLICATION FILED BEFORE HIM. WE NOTE THAT THE ASSESSEE HAD SUBMITTED ALL THE DOCUMENTS TO HIS COUNSEL AND THE NAME OF THE COUNSEL HAS ALSO BEEN SPECIFICALLY GIVEN. THE ASSESSEE HAS CLEARLY STATED THAT HE HAS GIVEN ALL THE DOCUMENTS DULY SIGNED TO THE COUNSEL ON 19.2.2010 WHO DID NOT FILE THE APPEAL ON TIME AND WAS MISLEADING HIM. ANYWAY WHEN HE CAME TO KNOW ABOUT IT, THE COUNS EL WAS PROMPTLY CHANGED AND THE APPEAL WAS FILED BEFORE THE LD. CIT(A) ON 4.6.2010. 3. IT SHOULD BE REMEMBERED TH AT THE ASSESSEE CANNOT BE PENALIZED FOR THE FAULT OF THE CO UNSEL/A.R. WHO IS DUTY BOUND TO ITA NO.353/LKW/2016, A.Y. 2008-09 4 DISCHARGE HIS DUTY AND IF HE DID NOT DO HIS DUTY, THEN THE ASSESSEE OUGHT NOT TO BE PENALIZE D AND A LIBERAL VIEW SHOU LD BE EXERCISED WHILE CONSIDERING SUCH APPLICATION BECAUSE FILING OF APPEAL IS A STATUTORY RIGHT. 4. IT IS WELL SETTLED LAW THAT THE JURISDICTION TO CONDONE THE DELAY SHOULD BE EXERCISED LIBE RALLY. THE MATTER RELATING TO CONDONATION OF DELAY SHOULD BE JUDGED BROADLY AND NOT IN A PEDANTIC MANNER. IN THE CASE OF COLLECTOR OF LAND ACQUISITIO N V. MST. KATIJI [1987] 167 ITR 471 (SC), THE HONBLE SUPREME COURT OF IN DIA HELD THAT ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODG ING AN APPEAL LATE. THE HONBLE SUPREME COURT FURTHER RULED THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EA CH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FO R THE OTHER SIDE CA NNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. IT HAS ALSO BEEN HELD BY THE HON BLE SUPREME COURT TH AT THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. 5. THEREFORE, WE ARE INCLINED TO CONDONE THE DELAY FOR THE REASON GIVEN BY THE ASSESSEE IN NOT FILING TH E APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. SINCE NONE APPEARED FOR THE ASSESSEE BEFORE US, WE ARE NOT INCLINED TO PASS THE ORDER ON MERIT. SO WE CONDONE THE DELAY FOR NOT ITA NO.353/LKW/2016, A.Y. 2008-09 5 FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND SET ASIDE HIS ORDER AND DIRECT HIM TO DECIDE THE MATTER ON MERIT BY PASSING A SPEAKING ORDER AFTER HE ARING THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.7.2016. SD/- SD/- [P. K. BANSAL] [ABY T VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JULY, 2016 JJ:2807 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR