Shri Girishbhai M. Mehta, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-5, RAJKOT-GUJARAT

ITA 360/RJT/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80090 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 06-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PM F ACIT CRICLE RAJKOT
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 360/RJT/2014 ASSESSMENT YEAR : 2004-05 SHRI GIRISHBHAI M. MEHTA, PROP. OF M/S. JESAL GEMS, 203, MAHAVIR CHAMBER, NAVANAKA ROAD, RAJKOT PAN : ABYPM 9165 F ( / APPELLANT) ACIT, CRICLE-5, RAJKOT / RESPONDENT / ASSESSEE BY SHRI D.M. RINDANI, CA / REVENUE BY SHRI AVINASH KUMAR, DR / DATE OF HEARING 15.07.2014 !'# / DATE OF PRONOUNCEMENT 18.07.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 28.04.2014 OF LD. CIT(A)-IV, RAJKOT REFUSING TO CONDONE THE DELAY OF 204 DAYS IN FILING THE APPEAL FOR THE ASSESSMENT YEAR 2004-05. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. AGAINST THE PENALTY ORDER DATED 25.03.2013 OF ASSESSING OFFICER U/S 271 (1)(C) OF THE ACT, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A)-IV, RAJKOT ON 20.11.2013. ON VERIFICATION OF FORM NO.35, THE LD. CIT(A) NOTICED THAT THE DEMAND NOTICE WAS SERVED ON 26.03.2013, THUS THERE WAS A DELAY OF AROUND 204 DA YS IN FILING THE APPEAL. THE LD. CIT(A), VIDE LETTER DATED 25.11.2013, ASKED THE ASS ESSEE TO FURNISH THE REASON FOR DELAY IN FILING THE APPEAL. IN RESPONSE TO THIS LET TER, BEFORE THE LD. CIT(A), THE ASSESSEE VIDE LETTER DATED 04.12.2013 SUBMITTED THE REASONS FOR DELAY IN FILING THE APPEAL WHICH READS AS UNDER:- THE ASSESSING OFFICER HAS PASSED ORDER OF PENALTY IN THE MONTH OF MARCH AND THE SAME IS SERVED IN THE FIRST WEEK OF APRIL. BUT SIR, AT THAT TIME I HAVE IN BOMBAY DUE TO SUFFERED FROM MASSIVE HEART ATTACK AN D IT IS NOT POSSIBLE TO ME TO TRAVEL BY ROAD, AIR OR TRAIN AS PRESCRIBED BY TH E DOCTOR. MOREOVER MY CLOSE RELATIVE IS ALSO EXPIRED IN BOMBAY SO I HAVE TO STA Y THERE. AS SOON AS I CAME TO RAJKOT I HAVE SEEN THE ORDER AND IMMEDIATELY FIL E THE APPEAL. THE CIRCUMSTANCES IS BEYOND MY CONTROL. SO KINDLY GRANT THE CONDONATION OF DELAY FOR FILING THE APPEAL. 3. IN THE IMPUGNED ORDER, LD. CIT(A) VIDE PARAGRAPH 3 REFUSED TO CONDONE THE DELAY. THE REASONING GIVEN BY THE LD. CIT(A) IS REP RODUCED HEREUNDER:- 2 360-RJT-2014 - SHRI GIRISHBHAI M. MEHTA 271(1)(C) (SMC) 3. I HAVE GONE THROUGH THE REASONS CITED IN THE PE TITION FOR DELAY CONDONATION. AS MENTIONED BY THE APPELLANT IN THE F ROM NO.35, THE DATE OF SERVICE OF RELEVANT NOTICE OF DEMAND IS 26.03.2013, WHEREAS THE APPEAL WAS FILED ON 20.11.2013. THERE IS A SUBSTANTIAL DELAY O F AROUND 204 DAYS. THE REASONS GIVEN FOR DELAY IN FILING APPEAL ARE NOT SA TISFACTORY HENCE APPEAL IS NOT ADMITTED FOR ADJUDICATION. 4. AGGRIEVED WITH THE ORDER OF LD. CIT(A) THE ASSES SEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL, ON THE FOLLOWING GROUNDS:- (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)-IV, RAJKOT HAS ERRED IN NOT ALLOWING THE CONDONATION OF DELAY ON G ENUINE GROUND IS UNWARRANTED, UNJUSTIFIED AND BAD IN LAW. (2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-IV, AHMEDABAD HAS ERRED IN INITIATING PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE IT ACT IS UNWARRANTED, UNJUSTIFIED AND BAD IN LAW. 5. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D.M. RINDANI, CA, APPEARED AND FAIRLY ADMITTED THAT THERE WAS A DELAY OF AROUND 204 DAYS IN FILING THE APPEAL. THE LD. COUNSEL OF THE ASSESSEE DREW MY ATT ENTION TO LETTER DATED 04.12.2013 WHICH WAS SUBMITTED BEFORE THE LD. CIT(A) FOR CONDO NATION OF DELAY AND CONTENDED THAT IN THE IMPUGNED ORDER THE LD. CIT(A) REJECTED THE EXPLANATION OF THE ASSESSEE ON DOUBT AND SUSPICION. THE LD. COUNSEL OF THE ASSESSE E REITERATED THAT AS THE ASSESSEE WAS SUFFERED A MASSIVE HEART ATTACK, IT WAS NOT POS SIBLE FOR HIM TO TRAVEL BY ROAD, AIR OR TRAIN AS PRESCRIBED BY THE DOCTOR. APART FROM TH IS, HIS CLOSE RELATIVE ALSO EXPIRED IN BOMBAY AND FOR THESE REASONS, HE HAD TO STAY THERE AT BOMBAY. HE ALSO SUBMITTED THAT THE CIRCUMSTANCES LEADING TO THE DELAY WERE BE HIND THE CONTROL OF THE ASSESSEE; THEREFORE, THE LD. CIT(A) OUGHT TO HAVE TAKEN A LEN IENT VIEW IN CONDONING THE DELAY. TO SUM UP, THE LD. COUNSEL OF THE ASSESSEE SUBMITTE D THAT THE LD. CIT(A) BE DIRECTED TO CONDONE THE DELAY OF 204 DAYS IN FILING THE APPE AL AND DECIDE THE APPEAL OF THE ASSESSEE ON MERITS. 6. ON THE OTHER HANDS, SHRI AVINASH KUMAR, DR, APPE ARED ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A ). HE SUBMITTED THAT BEFORE THE LD. CIT(A) THE ASSESSEE HAS NOT FURNISHED ANY EVIDE NCE IN SUPPORT OF HIS CLAIM THAT HE SUFFERED A MASSIVE HEART ATTACK; THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) IN REFUSING TO CONDONE THE DELAY IN FILING THE APPEAL BE UPHELD. 3 360-RJT-2014 - SHRI GIRISHBHAI M. MEHTA 271(1)(C) (SMC) 7. IN REJOINDER, LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT EVIDENCE OF ILLNESS WAS NEVER ASKED BY THE LD. CIT(A). HAD HE ASKED FOR THE EVIDENCES, THE SAME COULD HAVE BEEN PRODUCED. 8. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. SECTION 249(3) OF THE INCOME-TAX ACT GIVES A POWER TO THE COMMISSIONER (APPEALS) TO CONDONE THE DELAY IN FILI NG THE APPEAL TO THE COMMISSIONER (APPEALS). THE POWER TO CONDONE THE DE LAY AS CONTAINED IN SECTION 253(5) OF THE INCOME-TAX ACT IS DISCRETIONARY AND T HE DISCRETION MUST BE JUDICIALLY EXERCISED AS HELD BY HONBLE JAMMU & KASHMIR HIGH C OURT IN THE CASE OF SMALL SCALE INDUSTRIES DEVELOPMENT CORPN LTD., V. DY. CIT (1949) 71 ITD 367 (ASR). THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF L AND ACQUISITION VS. MRS. KATIJI & OTHERS (1987)167 ITR 471(SC), ALSO HELD THAT COURT SHOULD HAVE PRAGMATIC AND LIBERAL APPROACH. THE HONBLE SUPREME COURT IN THE CASE OF N. BALKRISHNAN VS. M. KRISHNAMURTHY REPORTED IN (1998) 7 SCC 123, HAD ALS O CONDONED A DELAY OF 833 DAYS. WHILE CONDONING THIS DELAY, HONBLE SUPREME C OURT OBSERVED THAT CONDONATION OF DELAY IS A MATTER OF DISCRETION OF THE COURT AND THE ONLY CRITERION IS THE ACCEPTABILITY OF EXPLANATION IRRESPECTIVE OF THE LENGTH OF DELAY. KEEPING IN VIEW THE AFORESAID PRONOUNCEMENTS AND LOOKING TO THE REASON FOR DELAY IN FILING THE APPEAL AS EXPLAINED BY THE ASSESSEE BEFORE THE LD. CIT(A), I AM OF THE VIEW THAT, KEEPING IN VIEW THE CONSPICUOUS FACTS OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE CONDONE THE DELAY OF 204 DAYS IN FILING THE APPEAL. SINCE THIS WAS NOT DONE , I HEREBY DIRECT THE LD. CIT(A) TO CONDONE THE DELAY OF 204 DAYS IN FILING THE APPEAL AND DECIDE THE APPEAL OF THE ASSESSEE ON MERIT IN ACCORDANCE WITH LAW. 9. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 18.07.2014 !$ /RAJKOT *BT 4 360-RJT-2014 - SHRI GIRISHBHAI M. MEHTA 271(1)(C) (SMC) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- SHRI GIRISHBHAI M. MEHTA, PROP. OF M/ S. JESAL GEMS, 203, MAHAVIR CHAMBER, NAVANAKA ROAD, RA JKOT 2. / RESPONDENT- ACIT, CRICLE-5,RAJKOT 3. ,/,0 * * 1 / CONCERNED CIT-III, RAJKOT 4. * * 1- / CIT(A)-IV, RAJKOT 5 . 456 0, * 0#, !$ / DR, ITAT, RAJKOT 6 . 68 9: / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT