Mrs. Shantidevi Kanhaisingh, JAMNAGAR V. The Commissioner of Income Tax, JAMNAGAR

ITA 365/RJT/2014

• Counselvise Citation: 36524914 RSA 2014
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: ASHOK TRIVEDI
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 365/RJT/2014 ASSESSMENT YEAR : 2005-06 MRS. SHANTIDEVI KANHAISINGH C/O. ASHOK H. TRIVEDI, JAY HARSIDDHI, PANCHESHWAR TOWER ROAD, OPP. INDRAPRASTH, JAMNAGAR PAN : AKKPR 6350 C ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX JAMNAGAR / RESPONDENT / ASSESSEE BY SHRI ASHOK TRIVEDI, ADVOCATE / REVENUE BY SHRI AVINASH KUMAR, DR / DATE OF HEARING 01.07.2014 ! '# / DATE OF PRONOUNCEMENT 17.07.2014 / ORDER THIS PETITION BY THE ASSESSEE IS AGAINST THE ORDER DATED 24.03.2009 OF COMMISSIONER OF INCOME-TAX, JAMNAGAR U/S 119(2)(B) OF THE INCOME-TAX ACT, 1961, REJECTING THE APPLICATION OF THE ASSESSEE FOR CONDO NATION OF DELAY IN FILING THE RETURN OF INCOME FOR THE AY 2005-06. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A WIDOW. HER HUSBAND MR. KANHAISINGH RAMLAKHANSINGH DIED IN A CAR ACCIDENT O N 04.09.1996. ON DEATH OF HER HUSBAND, THE ASSESSEE RECEIVED COMPENSATION FROM MO TOR ACCIDENT CLAIM TRIBUNAL (MACT). ON THIS COMPENSATION, TDS OF RS.22,883/- WA S DEDUCTED. IN ORDER TO CLAIM THE REFUND OF TDS, THE ASSESSEE FILED HER RETURN OF INCOME FOR THE AY 2005-06 ON 08.12.2008 WITH ITO, WARD 2(2), JAMNAGAR. SINCE THE RE WAS A DELAY IN CLAIMING THE REFUND, THE ASSESSEE FILED AN APPLICATION FOR CONDO NATION OF DELAY U/S 119(2)(B) ON 08.12.2008 WITH LD. CIT, JAMNAGAR. LD. CIT, JAMNAG AR VIDE IMPUGNED ORDER DATED 24.03.2009 U/S 119(2)(B) OF THE ACT REJECTED THE PE TITION OF THE ASSESSEE ON THE GROUND THAT, AS PER PAN APPLICATION, THE ASSESSEE HAS GIVEN RESIDENTIAL ADDRESS OF BIHAR I.E. BEGOMAN, PARIA PUNAKALLA, GAYA, BIHAR. THEREFORE, THE JURISDICTION OF THE ASSESSEE DOES NOT FALL IN THE REGION OF JAMNAGAR CI TY. AGGRIEVED WITH THE AFORESAID ORDER OF LD. CIT, JAMNAGAR, THE ASSESSEE HAS FILED THIS PETITION BEFORE THIS TRIBUNAL ON 09.06.2014, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT HAS ERRED IN LAW AND FACTS IN REJE CTING APPLICATION FOR CONDONATION OF DELAY MADE U/S. L19(2)(B) OF THE LT. ACT, 1961. 2 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) 2. THE LD. CIT HAS ERRED IN LAW AND FACTS IN NOT P ROVIDING ADEQUATE AND REASONABLE OPPORTUNITY TO THE APPELLANT AND AS SUCH THE ORDER PASSED BY HIM IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 3. THE LD. CIT HAS ERRED IN LAW AND FACTS IN REJECT ING THE APPLICATION ON IRRELEVANT GROUNDS, THE APPLICATION DESERVES CONDON ATION. 4. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN RE JECTING THE APPLICATION ON THE GROUND WHICH ARE NOT LAWFUL. 5. WITHOUT PREJUDICE, THE APPLICANT BEING A WIDOW HAVING RECEIVED THE AMOUNT OF COMPENSATION FROM JAMNAGAR, WHERE HER HUS BAND MET WITH AN ACCIDENT AND EXPIRED, THE LD. CIT, JAMNAGAR OUGHT T O HAVE CONSIDERED THE CASE ON A BROAD LINE, AND HUMANITY ANGLE AND OUGHT TO HAVE CONDONED THE DELAY TO ENABLE THE WIDOW TO GET HER LEGITIMATE AMO UNT LYING WITH THE INCOME TAX DEPARTMENT ON WHICH THE LAWFUL OWNERSHIP BELONG S TO THE LADY. THE APPLICATION DESERVES CONDONATION EVEN ON HUMANITY G ROUNDS. 6. THE LD. CIT HAS NOT CONSIDERED THE FACTS THAT A PPELLANT HAS FILED RETURN OF INCOME BEFORE ITO WARD-2(2), JAMNAGAR AND PAN WA S ALSO OWNING BY HIM AT THE TIME OF FILING THE RETURN AND ADDRESS IN PAN ALLOCATION LATER WAS ALSO OF JAMNAGAR. THE OTHER ADDRESS MENTIONED IN PAN DIRECT ORY WAS OF BIHAR, WHICH WAS A SUBSTITUTE ADDRESS BEING A DOMICILE STATE OF THE APPELLANT. 7. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY AND FACTUAL POSITION, THE APPLICATION MADE BY THE APPELLANT OUGHT TO HAVE BEE N ACCEPTED. 8. THE APPELLANT CRAVES LEAVE TO ADD/ ALTER/AMEND AND/OR SUBSTITUTE ANY/ALL GROUNDS OF APPEAL BEFORE THE ACTUAL HEARING TAKES P LACE 3. AT THE TIME OF HEARING BEFORE THE TRIBUNAL, ON B EHALF OF THE ASSESSEE, SHRI ASHOK TRIVEDI, ADVOCATE, APPEARED AND POINTED OUT T HAT THE PETITION FILED BY THE ASSESSEE IS TIME BARRED BY 1812 DAYS. FOR CONDONATI ON OF DELAY, THE LD. COUNSEL OF THE ASSESSEE POINTED THAT AN APPLICATION DATED 07.0 4.2014 IS FILED ALONGWITH MEMORANDUM OF APPEAL WHICH IS REPRODUCED HEREUNDER: - FROM MRS. SHANTIDEVI KANHAISINGH, CIA. ASHOK H. TRIVEDI, 'JAY HARSIDDHI', PANCHESHWAR TOWER ROAD, OPP. INDRAPRASTH, JAMNAGAR-361 001. TO, THE HONBLE MEMBERS, INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, 5 TH FLOOR, AMRUTA ESTATE, M.G. ROAD, NR. GIRNAR CINEMA, RAJKOT-360001 DATE : 07.04.2014 HONBLE SIRS, SUB: PRAYER FOR CONDONING THE DELAY IN FILING OF AP PEAL AGAINST ORDER U/S. 119(2)(B) OF THE LT. ACT, 1961 AND DECIDING THE SAM E ON MERITS- A.Y. 2005-06 -REG. IN CONNECTION WITH THE ABOVE, YOUR HONOURS' ABOVE N AMED APPELLANT MOST RESPECTFULLY BEGS TO SUBMIT AS UNDER: 3 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) (I) YOUR APPELLANT IS A WIDOW. MY HUSBAND DIED IN A N ACCIDENT ON 04/09/1996 AND THE AMOUNT UNDER REFERENCE WAS RECEIVED ON ACCO UNT OF ACCIDENT CLAIM SANCTIONED BY THE MOTOR ACCIDENT CLAIMED TRIBUNAL ( MACT) OUT OF THIS AMOUNT THOUGH NOT REQUIRED, TDS WAS MADE AMOUNTING TO RS. 22,883/-. THIS AMOUNT WAS VERY MUCH USEFUL TO A WIDOW LADY LIKE ME FOR MA INTENANCE, MARRIAGE AND OTHER EXPENSES TO BE INCURRED BY ME FOR MY CHILDREN , HAVING NO OTHER SOURCE OF INCOME. (II) I AM AN ILLITERATE PERSON AND ALSO COMING FROM A POOR AS WELL AS BACKWARD BACKGROUND. THEREFORE, I WAS NOT AWARE OF THE COMPL EX REQUIREMENT OF INCOME TAX LAW FOR RECEIVING THIS TDS MONEY BACK AS A REFU ND FROM INCOME TAX DEPARTMENT BY FILING AN INCOME TAX RETURN. SO, THE INCOME TAX RETURN WAS FILED LATE AND ALSO ON RECEIPT OF THE REJECTION ORD ER IN RESPECT OF SECTION119(2)(B) OF THE IT ACT, 1961 DATED 24/03/20 09 BY CLT, JAMNAGAR, INSTEAD OF CONSULTING SOME INCOME TAX PRACTITIONER, I KEPT THE SAME IN MY CUSTODY INADVERTENTLY. (III) SUBSEQUENTLY, IT WAS POINTED OUT BY MY INSURA NCE LAWYER THAT THE ORDER UNDER CONSIDERATION REMAINED IN THE INSURANCE FILE AND NO APPEAL COULD BE FILED. THEREFORE, THE APPEAL WAS NOT FILED IN TIME BEFORE THE PRESCRIBED TIME OF 60 DAYS FROM THE SERVICE OF THE SAID ORDER. THUS, S IR, I AM VERY SORRY TO SAY, BUT THE APPEAL IS DELAYED APPROXIMATELY BY 5 YEARS. IN SHORT, YOUR APPELLANT RELIED ON THE CONSULTATION OF TAX CONSULTANT WHO WA S ENTRUSTED THE TASK OF PREPARATION AND SUBMISSION OF RETURN OF INCOME. (IV) IN THE CIRCUMSTANCES, THE APPELLANT IS FILING THIS APPEAL BEYOND PRESCRIBED TIME LIMIT AND DELAY IN FILING OF THE APPEAL FOR WA S NOT INTENTIONAL BUT BECAUSE OF THE FACTS AND CIRCUMSTANCES MENTIONED ABOVE. THE APPELLANT REGRETS FOR THE INCONVENIENCE CAUSED AND PRAYS FOR SYMPATHETIC CONS IDERATION IN THE MATTER. (V) IN VIEW OF THE ABOVE, THE APPELLANT HUMBLY PRAY S TO THE HON'BLE MEMBERS THAT THE DELAY IN FILING THE APPEAL MAY KINDLY BE C ONDONED AND THE APPEAL MAY KINDLY BE ADMITTED AND DECIDED ON MERITS BY EXERCIS ING THE POWERS CONFERRED IN THE IT AT VIDE PROVISIONS OF SECTION 253(5) OF T HE I.T. ACT, 1961. THANKING YOU IN ANTICIPATION. YOURS FAITHFULLY, SD/- (MRS. SHANTIDEVI KANHAISINGH) RELYING ON THE AFORESAID APPLICATION FOR CONDONATI ON OF DELAY, THE LD. COUNSEL OF THE ASSESSEE PLEADED THAT THE DELAY IN FILING TH E PETITION BEFORE THE TRIBUNAL BE CONDONED. 4. ON THE OTHER HAND, SHRI AVINASH KUMAR, DR, APPEA RED FOR THE REVENUE, POINTED OUT THAT THERE IS AN INORDINATE DELAY IN FI LING THE PETITION; THEREFORE THE PETITION OF THE ASSESSEE SHOULD NOT BE ADMITTED. 5. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE CONTENTS OF THE APPLICATION FOR CONDONATION OF DELAY. THE ASSESSEE IS AN ILLITERATE LADY COMING FROM A POOR AS WELL AS BACKWARD BACKGROUND. SHE WAS NOT AW ARE OF THE COMPLEX PROVISIONS OF INCOME-TAX LAW FOR CLAIMING THE REFUND OF TDS FR OM THE IT DEPARTMENT. LOOKING TO THE PECULIAR FACTS OF THE CASE, THE DELAY IN FILING THE PETITION BEFORE THE TRIBUNAL OF 1812 DAYS IS CONDONED AND THE PETITION OF THE ASSES SEE IS ADMITTED. 4 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) 6. ON MERITS, THE LD. COUNSEL OF THE ASSESSEE DREW MY ATTENTION TO THE PAN ALLOTMENT LETTER WHICH IS AS UNDER:- FROM THE AFORESAID PAN ALLOTMENT LETTER, THE LD. C OUNSEL OF THE ASSESSEE POINTED OUT THAT THE PAN NO.AKKPR6350C HAS BEEN ALL OTTED TO THE ASSESSEE WITH THE INSTRUCTION FOR CONTACTING ITO WARD 2(2), JAMNAGAR FOR FILING THE RETURN OF INCOME. ON THIS BASIS, HE POINTED OUT THAT, JURISDICTION OV ER THE CASE OF THE ASSESSEE LIES WITH JAMNAGAR AND NOT IN BIHAR. THE LD. COUNSEL OF THE A SSESSEE FURTHER POINTED OUT THAT 5 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) THE ASSESSEE CAME TO JAMNAGAR BECAUSE HER HUSBAND W AS EMPLOYED IN JAMNAGAR ON THE RELIANCE CONSTRUCTION PROJECT OF LARSON AND TOURBO, ECC CONSTRUCTION GROUP, WHERE HE EXPIRED DUE TO A CAR ACCIDENT ON 04 .09.1996. THE LD. COUNSEL OF THE ASSESSEE ACCORDINGLY POINTED OUT THAT THE REASONING GIVEN BY LD. CIT, JAMNAGAR FOR REJECTING THE PETITION OF THE ASSESSEE IS FLIMSY; T HEREFORE, HE MAY BE DIRECTED TO ADMIT THE PETITION OF THE ASSESSEE AND CONDONE THE DELAY IN FILING THE RETURN OF INCOME FOR THE AY 2005-06. THE LD. COUNSEL OF THE ASSESSEE FU RTHER POINTED OUT THAT IF THERE IS SOME MISTAKE IN THE RETURN OF INCOME THE SAME BEING CORRECTED AS PER TDS CERTIFICATE ISSUED BY THE INSURANCE COMPANY. THE L D. COUNSEL OF THE ASSESSEE FURTHER ADMITTED THAT HER INCOME BE ADOPTED AS PER TDS CERT IFICATE FURNISHED ALONGWITH RETURN OF INCOME FILED BY HER ON 08.12.2008 WITH IT O, WARD 2(2), JAMNAGAR. 7. THE LD. DR COULD NOT CONTROVERT THE AFORESAID SU BMISSION MADE BY THE LD. COUNSEL OF THE ASSESSEE, EXCEPT REITERATING THE REA SONING GIVEN BY THE LD. CIT, JAMNAGAR THAT THE JURISDICTION OVER HER CASE LIES I N BIHAR AND NOT IN JAMNAGAR AS PER RESIDENTIAL ADDRESS OF THE ASSESSEE PROVIDED IN THE PAN APPLICATION. 8. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE IMPUGNED ORDER OF LD. CIT AND THE PAN ALLOTMENT LETTER OF TH E ASSESSEE. IT IS PERTINENT TO NOTE THAT IN THE PAN ALLOTMENT LETTER THE JURISDICTION O F THE AO MENTIONED AS ITO WARD 2(2), JAMNAGAR; AND THE ADDRESS OF PAN ALLOCATION LETTER IS ALSO OF JA MNAGAR, BUT ONLY THE SUBSTITUTE ADDRESS (OTHER ADDRESS) MEN TIONED BEING THE DOMICILE STATE OF THE ASSESSEE ; THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE HAS RIGHTLY FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-0 6 WITH THE ASSESSING OFFICER HAVING JURISDICTION AS MENTIONED IN THE PAN ALLOTME NT LETTER ISSUED TO THE ASSESSEE. THE LD. CIT OUGHT TO HAVE CONSIDERED THE ADDRESS ME NTIONED IN THE PAN ALLOCATION LETTER WHICH WAS OF JAMNAGAR. IT IS ALSO RELEVANT H ERE TO NOTE THAT THE ASSESSEE WAS RECEIVED INSURANCE CLAIM PAID BY NATIONAL INSURANCE COMPANY LTD., RAJKOT ON ACCOUNT OF ACCIDENTAL DEATH OF HER HUSBAND WHO WAS IN JAMNAGAR TO WORK ON THE RELIANCE PROJECT OF LARSON AND TOURBO. THE FORM NO. 16A, FOR MAKING TDS, WAS ALSO ISSUED BY NATIONAL INSURANCE COMPANY LTD., RAJKOT. LOOKING TO THE CONSPICUOUS FACTS OF THE CASE, THE LD. CIT OUGHT TO HAVE TAKEN A LENIENT VIEW KEEPING IN VIEW THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF P ANNALAL BINJRAJ V. UNION OF INDIA, 6 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) [1957] 31 ITR 565 (SC), WHEREIN IT WAS THAT A HUMA N AND CONSIDERATE ADMINISTRATION OF THE RELEVANT PROVISIONS OF THE INCOME-TAX ACT WO ULD GO A LONG WAY IN ALLAYING THE APPREHENSIONS OF THE ASSESSEE AND IF THAT IS DONE I N ALL THE TRUE SPIRIT, NO ASSESSEE WILL BE IN A POSITION TO CHARGE THE REVENUE WITH AD MINISTERING THE PROVISIONS OF THE ACT WITH AN EVIL EYE AND AN UNEQUAL HAND. THE HONBL E ANDHRA PRADESH HIGH COURT IN THE CASE OF K. RUDRA RAO V. ITO [1958] 34 ITR 216 ( AP), ALSO HELD THAT IN ADMINISTERING A TAX LAW, IRRITATION TO THE ASSESSEE IS INEVITABLE; AN OFFICER IS BOUND TO DO HIS DUTY IRRESPECTIVE OF THE SUSCEPTIBILITIES OF THE ASSESSEES OR EVEN AT THE RISK OF HURTING THEIR AMOUR PROPER. BUT THIS WOULD NOT JUST IFY THE OFFICERS FUNCTIONING UNDER THE ACT DOING THINGS IN AN UNREASONABLE WAY. IN THE P RESENT CASE, LD. CIT ACTED HYPER TECHNICAL IN NOT CONSIDERING THE PETITION OF THE AS SESSEE ON MERIT. IN OTHER WORDS, THE LD. CIT SHOULD HAVE CONSIDERED THE HARDSHIP CAUSED TO THE ASSESSEE IF THIS DELAY IS NOT CONDONED. IT IS WELL SETTLED LAW THAT THE AUTH ORITY SHOULD CONDONE THE DELAY IF FAILURE TO CONDONE THE DELAY CAUSES GENUINE HARDSHI P TO THE ASSESSEE; NO MATTER WHETHER THE DELAY IN FILING THE RETURN IS METICULOU SLY EXPLAINED OR NOT. THE GENUINE HARDSHIP CONTEMPLATED UNDER SECTION 119(2)(B) OBVIO USLY IS FINANCIAL HARDSHIP CAUSED TO THE ASSESSEE IF THE DELAY IS NOT CONDONED AS OBS ERVED BY THE HONBLE KERALA HIGH COURT IN THE CASE OF PALA MARKETING CO-OP. SOCIETY LTD. V. UNION OF INDIA [2008] 167 TAXMAN 238 (KER.). KEEPING IN VIEW OF ABOVE, IN TH E INTEREST OF JUSTICE, THE IMPUGNED ORDER OF LD. CIT IS SET ASIDE AND HE IS DIRECTED TO RECONSIDER THE REQUEST OF THE ASSESSEE, WHO IS A WIDOW, FOR CONDONATION OF DELAY IN FILING THE RETURN OF INCOME FOR THE AY 2005-06 AFRESH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, FOR STATISTICAL PURPOSES, THE PET ITION OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 17.07.2014 !$ /RAJKOT *BT 7 365-RJT-2014 - MRS. SHANTIDEVI KANHAISINGH 119(2)(B) - (SMC) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- MRS. SHANTIDEVI KANHAISINGH, C/O. ASH OK H. TRIVEDI, JAY HARSIDDHI, PANCHESHWAR TOWE R ROAD, OPP. INDRAPRASTH, JAMNAGAR 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, JAMN AGAR 3. ,/,0 * * 1 / CONCERNED ADDL. CIT, RANGE 2, JAMNAGAR 4 . 234 0, * 0#, !$ / DR, ITAT, RAJKOT 5 . 46 78 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT