Anand Nagari Sah. Pat Sanstha Ltd., Ahmednagar V. ITO, Wd-3, Ahmednagar

ITA 375/PUN/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1291 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , ' # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, A M . / ITA NO.375/PN/2012 $ % % / ASSESSMENT YEAR : 2006-07 ANAND NAGARI SAHAKARI PAT SANSTHA LTD., CHANDEKAR CHAMBERS, PANSARE LANE, AHMEDNAGAR. . / APPELLANT PAN: AABIA2738B VS. THE INCOME TAX OFFICER, WARD 3, AHMEDNAGAR . RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 15.07.2015 / DATE OF PRONOUNCEMENT: 12.08.2015 & / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, PUNE DATED 07.09.2011 RELATING TO ASSESSMENT YEAR 2006-0 7 PASSED UNDER SECTION 144 OF THE INCOME-TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T. (A) WAS NOT JUSTIFIED IN CONFIRMING THE ORDER OF TH E A.O. PASSED U/S. 144 DENYING THE DEDUCTION U/S.80-P(2)(A)(I) OF THE ACT, THE EXPARTE ASSESSMENT CONFIRMED BY LD. C.I.T. (A) BE QUASHED. ITA NO.375/PN/2012 ANAND NAGARI SAH. PAT SANSTHA LTD. 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T. (A) WAS NOT JUSTIFIED IN CONFIRMING AN EXPARTE ASSE SSMENT WHERE ADDITION OF RS.40,000/- WAS MADE. THE AMOUNT BEING AN AMOUNT COLLECTED FROM MEMBERS ON ACCOUNT OF BUILDING FUND WHICH IN ITSELF IS A LIABILITY TO THE ASSESSEE-SOCIETY. THE ESTIMATED LIABILITY ADDED AND CONFIRMED BY CIT (A) BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW EVEN IF AN ADDITION IS MADE THE ENTIRE INCOME BECOMES ELIGIBLE FOR DEDUCTION U/S. 80-P(2)(A) OF THE ACT FOLLOWING THE JUDGMENT OF THE HON'BLE PUNE ITAT IN THE CASE OF MAHAVIR NAGARI PAT SANSTHA ( 74 TTJ 793 ) AND IT BE HELD ACCORDINGLY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE A.O. WAS NOT JUSTIFIED IN LEVYING INTEREST U/S. 234-B OF RS. 4,192/- EVEN WHEN THE DEPARTMENT WAS NOT DEPRIVED OF ANY REVENUE RESULTIN G INTO LOSS TO IT. IN VIEW OF THIS THE INTEREST LEVIED BE DELETED. 5. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS O F APPEAL, WHICH READ AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT CONDONING THE DELAY OCCURRED IN FI LING THE APPEAL AND HOLDING THAT THE APPEAL UNADMITTED TAKING A VERY NARROW VIE W OF THE MATTER. THE DELAY WAS EXPLAINED DUE TO NON CO-OPERATION OF THE PREVIOUS CONSULTANT THE LD. CIT(A) HELD OUT OF DELAY OF 207 DAYS THE DELAY OF 180 DAYS REMAINS UNEXPLAINED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW AND IN VIEW OF THE GROUND NO.1 ABOVE THE LD. CIT(A) BE DIRECTED TO CON DONE THE ENTIRE DELAY AND APPEAL BE ADMITTED FOR HEARING IN ACCORDANCE WI TH THE PROVISIONS OF LAW. 4. THE PRELIMINARILY ISSUE RAISED BY THE ASSESSEE V IDE THE ADDITIONAL GROUND OF APPEAL IS AGAINST THE ORDER OF THE CIT(A) IN NOT CONDONING THE DELAY IN FILING THE APPEAL LATE BEFORE HIM AND THE SAID I SSUE REQUIRING NO ADJUDICATION OF FACTS, IS ADMITTED. 5. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE ASSESSMENT ORDER DATED 12.11.2008 WAS RECEIVED BY THE ASSESSEE ON 26.11.2008 AND THE APPEAL BEFORE THE CIT(A) WAS TO BE FILED BY THE ASSESSEE ON OR BEFORE 25.12.2008. HOWEVER, THE SAID APPEAL WAS FILED BY THE ASSESSEE ON 22.06.2009 I.E. AFTER A DELAY OF 207 DAYS. THE ASSESSEE POINTED OUT THAT ITA NO.375/PN/2012 ANAND NAGARI SAH. PAT SANSTHA LTD. 3 THE REASON FOR NOT FILING THE SAID APPEAL IN TIME W AS THE INACTION BY THE COUNSEL WHO WAS LOOKING AFTER THE ASSESSMENT PROCEE DINGS. AN AFFIDAVIT OF THE COUNSEL TAKING OVER THE CASE OF THE ASSESSEE IS FURNISHED ON RECORD. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POIN TED OUT THAT AN AFFIDAVIT DATED 28.05.2011 BY THE MANAGER OF THE SOCIETY WAS FURNISHED BEFORE THE CIT(A) EXPLAINING THE REASONS FOR NON-FURNISHING TH E APPEAL IN TIME, HOWEVER, THE SAME WAS REJECTED BY THE CIT(A). 6. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE PLACED RELIANCE ON THE ORDER OF THE CIT(A) IN THIS REGARD. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF THE ACT, AN APPEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) IS TO BE FILED WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF THE ASSESSMENT ORD ER. IN THE CASE OF THE ASSESSEE BEFORE US, THE ASSESSMENT ORDER IS DATED 1 2.11.2008 AND WAS ADMITTEDLY SERVED UPON THE ASSESSEE ON 26.11.2008, AGAINST WHICH UNDER THE PROVISIONS OF THE ACT, THE APPEAL WAS DUE TO BE FIL ED ON OR BEFORE 25.12.2008. THE SAID APPEAL WAS FURNISHED ON 22.06.2009 I.E. AF TER A DELAY OF 207 DAYS. THE REASONS FOR NON-FURNISHING OF THE APPEAL IN TIM E WERE THE INACTION BY THE CONSULTANT WHO WAS LOOKING AFTER THE INCOME-TAX PRO CEEDINGS OF THE ASSESSEE. THE ASSESSEE EXPLAINED THE REASONS FOR THE DELAY VI DE AFFIDAVIT DATED 28.05.2011, WHICH IS REPRODUCED UNDER PARA 4 AT PAG ES 3 TO 5 OF THE APPELLATE ORDER. FOR THE SAKE OF BREVITY, THE SAME IS NOT BE ING REPRODUCED. HOWEVER, REFERENCE IS BEING MADE TO THE CONTENTS OF THE SAID AFFIDAVIT TO ADJUDICATE THE ISSUE. ITA NO.375/PN/2012 ANAND NAGARI SAH. PAT SANSTHA LTD. 4 8. FURTHER, DURING THE COURSE OF HEARING BEFORE US, THE COUNSEL WHO HAD TAKEN OVER THE INCOME-TAX MATTER OF THE ASSESSEE FU RNISHED AN AFFIDAVIT, WHICH READS AS UNDER :- AFFIDAVIT I, SHRI VIJAYKUMAR HARAKCHAND BHANDARI, AGE ABOUT 5 6, RESIDING AT D-117, RAJ CHEMBERS, NEAR KOTLAL STAND, AHMEDNAGAR, DO HEREBY SOLEMNLY AFFIRM AND STATE AS UNDER : 1. I AM PRACTICING AS INCOME-TAX PRACTITIONER AT AH MEDNAGAR. SINCE LAST 25 YEARS INDEPENDENTLY. 2. BEFORE THE CASE OF THE ANAND NAGARI SAHAKARI PAT SANSTHA, AHMEDNAGAR THE SAME WAS BEING LOOKED AFTER 4 ONE SH RI SANJAY RAUT WHO STATED THAT HE WAS PRACTICING ON INCOME-TA X SIDE ENGAGED IN THE ORIGINAL WORK. 3. SHRI DEEPAK BABASAHEB SHINDE, THE MANAGER APPROA CHED ME ROUND ABOUT JUNE, 2009 SAYING THAT THE SAID SOCIETY HAS COME INTO TROUBLE AS ITS PREVIOUS CONSULTANT HAVING NOT PROPERLY ATTEND THE ASSESSMENT PROCEEDINGS BEFORE A.O. AHMEDNAGAR O F RESULTED INTO EXPARTE ASSESSMENT U/S 144 IMPOSING THE TAX AN D OTHERWISE NO TAX WAS PAYABLE AS ITS INCOME WAS COVERED BY S. 80P OF THE ACT. I ADVISED THEM TO IMMEDIATELY FILE APPEAL BEFO RE CIT(A)-L, PUNE FOR GETTING JUSTICE. AND THEN I PREPARED THE N ECESSARY APPEAL PAPERS AND FILED THE SAME BEFORE CIT(A) ON 2 2-06-2009. I HAD IMMEDIATELY TAKEN ACTION TO FILE THE APPEAL BEF ORE LD. CIT(A)-I, PUNE WITHOUT ANY LOSS OF TIME. MADE THIS AFFIDAVIT ON THE 14TH DAY OF JULY 2015 WH ILE BEING PRESENT IN PUNE. THE CONTENTS OF THE SAME ARE TRUE AND CORRECT AND IT CONCEALS NOTHING. SD/- AFFIANT 9. ON PERUSAL OF THE AFORESAID AFFIDAVIT FILED BY T HE ASSESSEE AND THE CONSULTANT, WE ARE OF THE VIEW THAT THE ASSESSEE WA S PREVENTED BY SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME BEFORE THE CIT(A). IN VIEW THEREOF, WE CONDONE THE DELAY OF 207 DAYS IN FURNISHING THIS AP PEAL LATE BEFORE THE CIT(A). HOWEVER, IN THE INTEREST OF JUSTICE, WE REMIT THE I SSUE BACK TO THE FILE OF THE CIT(A) TO ADJUDICATE ON MERITS OF THE ISSUE RAISED, AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ADDITI ONAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS ALLOWED. IN VIEW OF OUR SETTING-ASIDE THE MATTER ITA NO.375/PN/2012 ANAND NAGARI SAH. PAT SANSTHA LTD. 5 BACK TO THE FILE OF THE CIT(A), WE ARE NOT ADJUDICA TING THE ISSUE RAISED ON MERITS BY THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON THIS 12 TH DAY OF AUGUST, 2015. SD/- SD/- ( R.K. PANDA ) ( SUSHMA CHOWLA ) ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 12 TH AUGUST, 2015 . SUJEET & ' ()*+ ,+) / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; & & ' () THE CIT(A)-I, PUNE; & & ' / THE CIT-I, PUNE; *+, --./, & ./ , 1 / DR A, ITAT, PUNE; ,23 4 / GUARD FILE. &$ / BY ORDER * - // TRUE COPY // 567 -8 .9 / SR. PRIVATE SECRETARY & ./ ,