Basudev Construction, Prop: Basudev Kumar Nayak, Koraput V. ITO, Jeypore Ward, Jeypore

ITA 361/CTK/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5306 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P R MOHANTY

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH CUTTACK BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER ./ ITA NO. 36 1 / CTK /20 1 7 ( / ASSESSMENT YEAR : 20 12 - 20 1 3 ) BASUDEV CONSTRUCTION, PROP: BASU DEVA KUMAR NAYAK, PAILO STREET, JEYPORE, DIST - KORAPUT - 764001 VS. ITO, JEYPORE WARD ./ ./ PAN/GIR NO. : A DWPN 8450 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI P.R.MOHANTY , AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 26 / 1 2 /201 7 / DATE OF PRONOUNCEMENT 27 / 12 /201 7 / O R D E R TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 2 , BHUBANE SWAR , DATED 22.08.2016 . 2. IN THIS APPEAL, THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO MERIT OF THE CASE ON THE GROUND THAT THE DELAY IN FILING THE APPEAL IS NOT CONDON ED. 3. THE AR OF THE ASSESSEE SUBMITTED BEFORE ME THAT THE APPEAL WAS DULY ADMITTED BY THE CIT(A) AND HEARD THRICE ON 7.3.2017, 26.4.2017 AND 5.6.2017 WHEN HE DID NOT INSIST ON ANY EVIDENCE FOR ILLNESS OF THE ASSESSEE WHICH WAS THE EXPLANATION OF THE ASSE SSEE BEFORE THE CIT(A) FOR FILING THE APPEAL BELATEDLY BY 12 DAYS BEFORE HIM. HE SUBMITTED THAT THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) WAS OF 12 DAYS WHICH CANNOT BE CONSIDERED BY ANY STANDARD AS AN ABNORMAL DELAY IN FILING THE APPEAL BEFORE THE CIT(A). THE ASSESSEE HAS EXPLAINED THE REASON FOR ITA NO. 36 1 /CTK/201 7 2 DELAY WAS THE ILLNESS OF THE ASSESSEE. HE SUBMITTED, THAT THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) SHOULD BE CONDONED AND THE MATTER SHOULD BE REMANDED TO THE FILE OF CIT(A) FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS AFTER HEARING THE ASSESSEE. 4. THE DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE CIT(A). 5. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE I NSTANT CASE, THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) ON 30.4.2015 WHICH WAS BARRED BY LIMITATION OF 12 DAYS. THE ASSESSEE EXPLAINED THE REASON FOR DELAY BEFORE THE CIT(A) THAT THE ASSESSEE WAS ILL DURING THE PERIOD FROM 16.4.2015 TO 29.4.2015. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT NO EVIDENCE WAS FILED WITH THE CONDONATION PETITION BEFORE HIM FOR SHOWING ILLNESS OF THE ASSESSEE DURING THE PERIOD FROM 16.4.2015 TO 29.4.2015. BEFORE ME, THE C ONTENTION OF AR IS THAT THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) BY THE ASSESSEE WAS NOT INTENTIONAL AND WAS ON ACCOUNT OF ILLNESS OF THE ASSESSEE. HE HAS SUBMITTED THAT THE DELAY IN PRESENTING THE APPEAL 12 DAYS LATE BEFORE THE CIT(A) IS NOT AN AB NORMAL DELAY BY ANY STANDARD AND SHOULD NOT BE CONSIDERED AS SO FATAL TO NOT TO ADMIT THE APPEAL OF THE ASSESSEE FOR HEARING. HE HAS PRAYED THAT TO RENDER SUBSTANTIAL JUSTICE THE DELAY IN FILING THE APPEAL OF 12 DAYS BEFORE THE CIT(A) SHOULD BE CONDONED AN D THE MATTER BE RESTORED TO THE FILE OF CIT(A) FOR DECIDING THE APPEAL OF ASSESSEE ON MERITS AFTER CONDONING THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). ITA NO. 36 1 /CTK/201 7 3 I FIND FORCE IN THE SUBMISSIONS OF THE AR OF THE ASSESSEE. IN MY CONSIDERED VIEW, WHERE TECHNICA LITIES AND SUBSTANTIAL JUSTICE IS PITTED AGAINST EACH OTHER, THEN IT IS THE DUTY OF A QUASI JUDICIAL AUTHORITY TO IGNORE THE TECHNICALITIES AND SHOULD GO IN FAVOUR OF RENDERING OF SUBSTANTIAL JUSTICE TO THE ASSESSEE. I FIND THAT THE ASSESSEE HAS FILED CONDONATION PETITION BEFORE THE CIT(A) EXPLAINING THE REASON FOR DELAY OF 12 DAYS AS ILLNESS OF THE ASSESSEE. IT IS TRUE THAT NO EVIDENCE WAS FILED BY THE ASSESSEE BY WAY OF A DOCTOR CERTIFICATE BEFORE THE CIT(A) TO EVIDENCE THE ILLNESS OF THE ASSESSEE. I ALSO FIND THAT THE CIT(A) HAD NOT ASKED THE ASSESSEE TO DO SO AND WITHOUT ALLOWING HIM SUCH AN OPPORTUNITY WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE BY NOT CONDONING THE DELAY IN PRESENTING THE APPEAL BEFORE HIM BELATEDLY BY 12 DAYS. I FI ND THAT IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE, THE DELAY OF 12 DAYS SHOULD BE CONDONED AND THE APPEAL OF THE ASSESSEE SHOULD BE HEARD ON MERITS. I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 12 /201 7 . SD/ - (N. S. SAINI) / ACCOUNTANT MEMBER CUTTACK ; DATED 27 / 12 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO. 36 1 /CTK/201 7 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//