ESTATE OF LATE SUNDERLAL C. PARIKH, MUMBAI V. ASST CIT CPC BANGALORE, MUMBAI

ITA 3706/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0555 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVDR
• Assessee Lawyers: NEHA PARANJAPEAR
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.3706/MUM/2016 ASSESSMENT YEAR: 2011-12 ESTATE OF LATE SUNDERLAL C. PARIKH, VRINDAVAN, 33, HATKESH SOCIETY, 5 TH N.S. ROAD, JVPD, VILE PARLE (WEST), MUMBAI-400056 / VS. ACIT-CPC-BANGALORE, INCOME TAX OFFICER-26(1)(4), PRATYAKSHAKAR BHAVAN, C-10, BKC, BANDRA, MUMBAI-400050 ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO.AAAAE1766G ! / ASSESSEE BY MS NEHA PARANJAPE-AR ' / REVENUE BY SHRI RAJESH KUMAR YADAV-DR ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 2 '$ % !& / DATE OF HEARING : 30/01/2018 % !& / DATE OF PRONOUNCEMENT 30/01/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 21/03/2016 OF THE FIRST APPELLATE AUTHORITY, MUMBAI , DISMISSING THE APPEAL OF THE ASSESSEE AND NOT CONDO NING THE DELAY, RESULTING INTO CONFIRMATION OF THE ORDER OF THE AC-CPC, IGNORING THE FACTUAL MATRIX AND NOT APPLYIN G CORRECT CHARGE OF TAX APPLICABLE U/S 159 R.W.S 168 AND FURTHER IN NOT COMPUTING THE TAX IN TERMS OF SECTIO N 168(1)(A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, MS. NEHA PARANJAPE, INVITED OUR ATTENTION TO THE FA CTUAL MATRIX BY EXPLAINING THAT THE ASSESSEE IS AN ESTATE OF LATE SUNDERLAL PARIKH WHICH WAS UNDER DISTRIBUTION AS ON 31/03/2011. BEING AN ESTATE THE CORRECT STATUS OF T HE ASSESSEE IS AOP HOWEVER, SINCE, THERE IS ONLY EXE CUTOR, THE SAME IS TO BE TAXED AT THE RATE OF INDIVIDUAL IN TE RMS OF SECTION 168(1)(A) OF THE ACT. IT WAS CONTENDED THAT THE INCOME OF RS.3,68,063/- WAS DECLARED AND THE TAX WA S ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 3 CALCULATED AT THE RATE APPLICABLE TO AN INDIVIDUAL, AS PER SECTION 159 R.W.S 168 OF THE ACT, THUS, THE TOTAL T AX LIABILITY OF RS.21,430/- WAS COMPUTED AGAINST WHICH TDS CREDI T OF RS.32694/- WAS CLAIMED, RESULTING A REFUND OF RS.11 ,260/-. IT WAS EXPLAINED THAT THE RETURN OF INCOME WAS PROC ESSED BY CPC BANGALORE COMPUTING THE TAX LIABILITY AT MAX IMUM MARGINAL RATE APPLICABLE TO LLP IGNORING THE CORREC T CHARGE OF TAX APPLICABLE U/S 159 R.W.S. 168 OF THE ACT. TH E LD. COUNSEL EXPLAINED THAT THE EMAIL ORDER U/S 143(1) W AS RECEIVED ON 29/01/2012 AND THE APPEAL U/S 246(1)(A) WAS FILED AGAINST THE ORDER ON 30/08/2013 RESULTING INT O DELAY OF 18 MONTHS. THE BENCH RAISED THE QUERY AS TO WHY THE DELAY OCCURRED IN FILING THE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THE LD. COUNSE L EXPLAINED THAT THE E-MAIL RECEIVED FROM CPC GOT MIX ED UP OTHER VARIOUS MALES AND WAS DIVERTED TO SPAM MAILS AND THUS SKIPPED THE NOTICE OF THE RECIPIENT. IT WAS CO NTENDED THAT A LENIENT VIEW MAY BE TAKEN AND THE DELAY IS CONDONED, SO THAT THE MATTER MAY BE HEARD ON MERIT. THE LD. COUNSEL EMPATHETICALLY CONTENDED THAT THE PRIMA -FACIE THE ASSESSEE IS HAVING A GOOD CASE. ON THE OTHER HA ND, SHRI RAJESH KUMAR YADAV, LD. DR, CONTENDED THAT IT WAS A ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 4 NEGLIGENCE ON THE PART OF THE ASSESSEE, THEREFORE, DELAY MAY NOT BE CONDONED. THE LD. DR RELIED UPON THE DECISIO N OF THE TRIBUNAL IN THE CASE OF SHRI KUNAL SURANA VS IN COME TAX OFFICER (ITA NO.3297/MUM/2012) ORDER DATED 19/04/2013. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO F AR AS, CONDONATION OF DELAY IS CONCERNED, NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE A SSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER A ND MODE IN WHICH THE APPEAL IS TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPR OACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELA Y HAS OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE A SSESSEE OR THE REVENUE IN FILING THE APPEAL. IN MATTERS CO NCERNING THE FILING OF APPEAL, IN EXERCISE OF THE STATUTORY RIGHT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECT ED NOT ON ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 5 ACCOUNT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECH NICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. 2.2. THE HONBLE APEX COURT IN A CELEBRATED DECISI ON IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JU STICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. I F SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-F IDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESSEE, THE DELA Y NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSION SUFFICI ENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS T O APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB-SERVES THE EN D OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTEN CE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 6 CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798(SC) OBSERVED THAT INORDINATE DELAY CALLS OF CAU TIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALA- FIDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE H ONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 196 3 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO P ARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT I S COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COUR T. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.3. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 (SC) HELD THAT THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS O F EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESS ION ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 7 SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERA L CONSTRUCTION. 2.4. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD V S ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS THE CASE O F THE PRESENT ASSESSEE. HAVING MADE THE AFORESAID OBSERVATION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUDING FROM HON BLE APEX COURT, THE CIRCUMSTANCES NARRATED BY THE ASSES SEE, WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, WE ARE SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND CONDONE THE DELAY AND DIRECT THE FIRST APPELLATE AUTHORITY TO ADJUDICATE THE APPEAL OF THE ASSESSEE ITA NO. 3706/MUM/20146 ESTATE OF LATE SUNDERLAL C. PARIKH 8 AFRESH ON MERIT AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD TO SUBSTANTIATE THE CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30/01/2018. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ MUMBAI; + DATED : 30/01/2018 F{X~{T? P.S/. . . , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 3! , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 3! / CIT(A)- , MUMBAI 5. 5'6 0! , 2 , -& , , $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI