Sri P V Kempaiah (HUF) , Bangalore V. Income Tax Officer Ward-6(3)(2), Bangalore

ITA 375/BANG/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9916 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BENCH: BANGALORE BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 375 /BANG/201 9 (ASSESSMENT YEAR: 20 11 - 12 ) SHRI P.V. KEMPAIAH (HUF), BEHIND MARAMMA TEMPLE, B.B.ROAD, AMRUTHAHALLI, BANGALORE - 560 092 .APPELLANT PAN AAOHP 1926L VS. I NCOME TAX OFFICER, WARD 6(3)(2), BANGALORE. RESPONDENT. ASSESSEE BY: SHRI NARENDRA SHARMA, ADVOCATE. REVENUE BY: S MT. R. PREMI, JCIT (D.R) DATE OF HEARING : 10.12 .2019 DATE OF PRONOUNCEMENT : 31 .12 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX, BANGALORE PASSED UNDER SECTION 143(3) AND 250 OF THE INCOME TAX ACT, 1961 ('THE ACT'). 2 ITA NO. 375/BANG/2019 2. THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL : 3 ITA NO. 375/BANG/2019 4 ITA NO. 375/BANG/2019 3. AT THE TIME OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS NOT CONDONED THE DELAY OF 375 DAYS IN FILING THE APPEAL WITHOUT CONSIDERING THE SUBMISSIONS AND ALSO THE EXPLANATIONS MADE IN THE COURSE OF APPELLATE PR OCEEDINGS. THE LEARNED AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT THE DELAY IS NOT WANTON AND ALSO REFERRED TO THE ORDER OF AT AT PAGE 3 WHERE 5 ITA NO. 375/BANG/2019 THERE IS A REFERENCE TO THE CO - OWNERS OF THE PROPERTY ENTERED INTO JOINT DEVELOPMENT AGREEMENT (JDA) AND O NE OF THE CO - OWNER MR. P.V. KRISHNA, HUF, THE TRIBUNAL HAS CONDONED THE DELAY OF 375 DAYS AND RESTORED THE ISSUE TO THE FILE OF CIT(APPEALS) FOR ADJUDICATION AFRESH. THEREFORE THE ASSESSEE IS ALSO ONE OF THE CO - OWNERS AND DELAY ALSO THE SAME AND PRAYED T HE APPEAL BE CONDONED AND MATTER BE RESTORED TO THE FILE OF CIT(APPEALS). CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF CIT(APPEALS). 4. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED AU THORISED REPRESENTATIVE HAS RESTRICTED HIS ARGUMENTS ONLY TO THE EXTENT OF CONDONATION OF DELAY AND SUPPORTED HIS STAND RELYING ON THE DECISION OF THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF CO - OWNERS OF THE ASSESSEE IN ITA NO.380/BANG/2019 FOR THE A SSESSMENT YEAR 2011 - 12 DT.28.08.2019 AND WE CONSIDER IT APPROPRIATE TO REFER TO THE DECISION OF THE CO - ORDINATE BENCH AT PAGE 3 PARAS 5, 6 & 7 WHICH ARE READ AS UNDER : 5. WE NOTICED THAT THE LD CIT(A) HAD ALSO DISMISSED THE APPEAL OF ONE OF THE CO - OWNE RS OF THE PROPERTY NAMED P.V KRISHNAPPA (HUF) IN LIMINE, WHEREIN ALSO IDENTICAL REASONS WERE GIVEN FOR THE DELAY IN FILING APPEAL BEFORE HIM. THE ABOVE CITED P.V KRISHNAPPA (HUF) HAD PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE COORDINATE BENCH OF THE TRIBUNAL, VIDE ITS ORDER DATED 28.8.2009 PASSED IN ITA NO.380/BANG/2009, HAS CONDONED THE DELAY AND RESTORED THE APPEAL TO THE FILE OF THE LD CIT(A) FOR ADJUDICATING THE GROUNDS ON MERIT. 6. WE ARE OF THE VIEW THAT THE DECISION TAKEN BY THE COORDINATE BENCH IN THE ABOVE SAID CASE CAN BE CONVENIENTLY FOLLOWED IN THIS CASE, AS THE FACTS SURROUNDING THE CASE AS WELL AS REASONS GIVEN BY BOTH THE ASSESSEES FOR THE DELAY IN FILING APPEAL ARE IDENTICAL. FOR THE SAKE OF CONVENIENCE WE EXTRACT BELOW OPERATIVE P ORTION OF THE ORDER PASSED BY THE COORDINATE BENCH IN THE CASE OF P.V KRISHNAPPA (HUF) REFERRED (SUPRA). 6 ITA NO. 375/BANG/2019 4.4 WE HAVE HEARD AND CONSIDERED THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD IN RESPECT OF THE MATTER OF NON - CONDONATION OF DELAY OF 375 DAYS IN FILING THE APPEAL BEFORE THE CIT(A) - 6, BANGALORE. IT IS APPARENT THAT THE CIT(A) HAS NOT ADJUDICATED THE ASSESSEE'S APPEAL ON MERITS, BUT DISMISSED IT, IN LIMINE, BY NOT CONDONING THE DELAY IN FILING THE APPEAL. THE ULTIMATE OBJECT OF ASSESSMENT PROCEEDING S IS THAT THE TRUE AND CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. IT IS UNLIKELY THAT THE ASSESSEE WOULD HAVE DELIBERATELY OR INTENTIONALLY FILED THE APPEAL BEFORE THE CIT(A), BELATEDLY, ESPECIALLY WHEN IT IS SADDLED WITH TAX DEMAND OF RS. 1,08,29,5 12/ - . TAKING INTO ACCOUNT THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WHEREIN THE HON'BLE APEX COURT LAID DOWN THE PRINCIPLES FOR DEALING WITH MATTERS RELATING TO CONDONATION OF DELAY; THE DECISION OF TH E HON'BLE KARNATAKA HIGH COURT IN THE CASE OF ISRO SATELLITE CENTRE (SUPRA); THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF SHAKUNTALA HEGDE L/R R. K. HEGDE (SUPRA) AND THE REASONS ADDUCED BY THE ASSESSEE IN ITS PETITION SEEKING CONDONATION OF DELAY (SUPRA), WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FROM FILING THE APPEAL FOR ASSESSMENT YEAR 2011 - 12 ON TIME BEFORE THE CIT(A) - 6, BANGALORE. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLLOWING THE PRINCIPLES L AID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WE CONDONE THE DELAY OF 375 DAYS BY THE ASSESSEE IN FILING THE APPEAL BEFORE THE CIT(A). SINCE IT IS EVIDENT THAT THE ASSESSEE'S APPEAL HAS BEEN DISMISSED BY THE CIT(A) ONLY O N TECHNICAL GROUNDS; BY NON - CONDONATION OF DELAY IN FILING THE APPEAL; AND NOT ADJUDICATED THE MERITS OF THE ISSUES RAISED IN THE APPEAL BEFORE HER, THE IMPUGNED ORDER OF CIT(A) - 6, BANGALORE DATED 07.12.2018 FOR ASSESSMENT YEAR 2011 - 12 IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS. NEEDLESS TO ADD, THE CIT(A) SHALL AFFORD THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE SUBMISSIONS / DETAILS REQUIRED; WHICH SHALL BE DULY CONSIDERED BEFORE DECIDING T HE APPEAL. IT IS ACCORDINGLY ORDERED. CONSEQUENTLY, THE OTHER GROUNDS RAISED ON MERITS IN THIS APPEAL (SUPRA) ARE NOT REQUIRED TO BE ADJUDICATED AT THIS STAGE. 7. CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID CASE, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE LD CIT(A). SINCE THE LD CIT(A) HAS NOT ADJUDICATED THE ISSUES ON MERITS, WE SET ASIDE THE ORDER PASSED BY THE LD CIT(A) AND RESTORE ALL ISSUES TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE RESPECTFULLY FOLLOWING THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF CO - OWNER WHERE THE FACTS ARE SIMILAR AND IDENTICAL AND DELAY ALSO SAME, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE CIT(APPEALS) AND RESTORE THE ENTIRE 7 ITA NO. 375/BANG/2019 DISPUTED ISSUE TO THE FILE OF CIT(APPEALS) TO ADJUDICATE ON MERITS AND PASS A SPEAKING ORDER AND PROVIDE ADEQUATE OPPORTUNITY OF HEARING AND ASSESSEE ALSO CO - OPERATE FOR EARLY DISPOSAL OF THE ASSESSEE AND ALLOW THE APPEAL OF ASSESSEE FOR STATISTICAL PURPOS ES. 5. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 S T DEC., 2019. S D / - S D / - ( B.R. B ASKARAN ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 1 . 12. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE