AQUAMECH ENGINEERING CORPORATION, NAVI MUMBAI V. ITO WD 28(1)(1), NAVI MUMBAI

ITA 3767/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9641 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: V C SHAH
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.3767/MUM/2017 (ASSESSMENT YEAR: 2009-10) M/S. AQUAMECH ENGINEERING VS. INCOME TAX OFFICER - 28(1)(1) CORPORTION 186/187, CENTRAL FACILITY BUILDING 2, APMC MARKET SECTOR NO. 19, VASHI NAVI MUMBAI 400703 [FORMERLY WARD15(3)(4)] TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI NAVI MUMBAI 400703 PAN AACCM6461E APPELLANT RESPONDENT ASSESSEE BY: SHRI V.C. SHAH REVENUE BY: MS. N. HEMALATHA DATE OF HEARING: 09.08.2017 DATE OF PRONOUNCEMENT: 22.09.2017 O R D E R PER G.S. PANNU, AM THIS APPEAL BY THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF THE CIT(A)-26, MUMBAI DATED 07.03.2017 FOR A.Y. 2009-10 . 2. ALTHOUGH IN THIS APPEAL THE ASSESSEE HAS RAISED MUL TIPLE GROUNDS OF APPEAL BUT THE PRELIMINARY GRIEVANCE THAT THE CIT(A ) HAS UNJUSTLY DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON A CCOUNT OF IT BEING FILED BELATEDLY. 3. IN THIS CONTEXT THE RELEVANT FACTS ARE THAT THE ASS ESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF SUPPLYI NG WATER TREATMENT PLANTS AND DISTRIBUTION SYSTEMS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IT FILED THE RETURN OF INCOME DECLARI NG TOTAL INCOME OF ` 1,76,260/- WHICH WAS SUBJECT TO SCRUTINY ASSESSMENT WHEREBY THE INCOME HAS BEEN ASSESSED AT ` 12,22,113/- AFTER MAKING AN ADDITION OF ITA NO. 3767/MUM/2017 M/S. AQUAMECH ENGINEERING CORPORATION 2 ` 10,45,853/- ON ACCOUNT OF UNPROVED PURCHASES. THE A SSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO FOUND TH AT THERE WAS A DELAY OF 50 DAYS IN FILING THE APPEAL. THE CIT(A) CONSIDERED THE PLEA OF THE ASSESSEE SEEKING CONDONATION OF DELAY BUT FOUND THA T THE REASONS CITED BY THE ASSESSEE DID NOT CONSTITUTE SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE SPECIFIED PERIOD AND, THEREFORE, HE DID NOT CONDONE THE DELAY IN TERMS OF SECTION 249(3) OF THE ACT AND ACC ORDINGLY DISMISSED THE APPEAL. 4. BEFORE ME THE LEARNED A.R. OF THE ASSESSEE POINTED OUT THAT IT WAS DULY EXPLAINED TO THE CIT(A) THAT THERE WAS A COMMU NICATION GAP BETWEEN THE FIRM OF CHARTERED ACCOUNTANTS AND THE ASSESSEE FIRM AND THEREFORE THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED PER IOD. THE LEARNED A.R. EXPLAINED THAT THE ASSESSEE IS A SMALL PARTNERSHIP FIRM COMPRISING OF TWO BROTHERS WHO ARE PARTNERS AND ARE QUALIFIED ENGINEE RS AND THEY DO NOT HAVE ANY BACKGROUND REGARDING THE INCOME TAX MATTER S. IT HAS BEEN POINTED OUT THAT THE ASSESSEE FIRM HAS NEVER PREFER RED ANY APPEAL BEFORE ANY INCOME TAX AUTHORITIES IN ITS EXISTENCE OF MORE THAN 20 YEARS EXCEPTING FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THE SUBSEQUENT ASSESSMENT YEAR 2010-11 AND, THEREFORE, DUE TO UNIN TENDED COMMUNICATION GAP THE APPEAL COULD NOT BE FILED IN TIME. IT WAS THEREFORE CONTENDED THAT CONSIDERING THE ENTIRETY OF THE FACT S AND BACKGROUND OF THE CASE THE CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN FILING OF THE APPEAL INSTEAD OF DISMISSING THE APPEAL IN LIMINE. 5. ON THE OTHER HAND, THE LEARNED D.R. APPEARED FOR T HE REVENUE HAS SUPPORTED THE REASONING TAKEN BY THE CIT(A) WHICH I HAVE ALREADY NOTED IN THE EARLIER PARAGRAPH WHICH IS NOT BEING REPEATED. I HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS WITH REGARD TO THE CIRCUMSTANCES EXPLAINED BY THE ASSESSEE BEFORE THE CIT(A) FOR SEE KING CONDONATION OF DELAY IN FILING THE APPEAL. NOTABLY THERE WAS A DEL AY OF 50 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A). IT IS QUITE WELL SETT LED THAT WHILE DEALING WITH THE ISSUE OF CONDONATION OF DELAY IN FILING OF APPE ALS, AN INHERENTLY LIBERAL APPROACH IS REQUIRED TO BE ADOPTED SO AS TO FURTHER THE CAUSE OF JUSTICE AND ITA NO. 3767/MUM/2017 M/S. AQUAMECH ENGINEERING CORPORATION 3 THAT THE PARTY SEEKING TO PURSUE THE APPEAL IS NOT NON-SUITED ON MERE TECHNICALITIES. IN THE PRESENT CASE IN WHICH THE DE LAY IS NOT OF AN ENORMOUS PERIOD, THE ASSESSEE EXPLAINED TO THE CIT(A) THAT T HE CHARTERED ACCOUNTANT FIRM PERHAPS DID NOT ACT UPON THE MAIL SENT BY THE ASSESSEE AND IT WAS ONLY WHEN THE ASSESSEE APPROACHED THEM ON A LATER D ATE, IT WAS REALISED THAT THE ASSESSMENT ORDER HAS BEEN PASSED AND SERVE D UPON THE ASSESSEE. ON THE STRENGTH OF THE SAME IT WAS CONTENDED THAT T HERE WAS AN INADVERTENT COMMUNICATION GAP WHICH HAS RESULTED IN THE DELAY IN FILING OF THE APPEAL. HAVING PERUSED THE MATERIAL ON RECORD I FIND THAT THERE IS NOTHING TO SUGGEST THAT THERE IS MALAFIDE ON THE PA RT OF THE ASSESSEE IN DELAYING THE FILING OF APPEAL AND RATHER THE BONAFI DES OF THE EXPLANATION FILED BY THE ASSESSEE HAVE NOT BEEN DISPUTED AT ANY STAGE. IN FACT THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF U.P. ST ATES ROAD TRANSPORT CORPORATION VS. KEDAR SINGH, AIR 1991 ALL 317 CONDO NED THE DELAY WHERE THE DELAY WAS ON ACCOUNT OF MERE MISTAKE BY THE COU NSEL OR HIS OFFICE. CONSIDERING THE ENTIRETY OF THE CIRCUMSTANCES AND T HE BACKGROUND OF THE ASSESSEE AND ITS CONDUCT OVER THE YEARS VIS-A-VIS T HE TAX DEPARTMENT, THAT HAS BEEN PLEADED BEFORE THE CIT(A), IN MY VIEW THE CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN FILING OF THE APPEAL. I HEREB Y DO SO AND SINCE THE ORDER OF THE CIT(A) IS SILENT ON THE MERITS OF THE ISSUE RAISED BY THE ASSESSEE BEFORE HIM, I DEEM IT FIT AND PROPER TO RE STORE THE MATTER TO THE FILE OF THE CIT(A). THE CIT(A) SHALL ADJUDICATE THE GROUNDS RAISED BY THE ASSESSEE BEFORE HIM ON MERITS AND AS PER LAW. NEEDL ESS TO MENTION THAT THE CIT(A) SHALL ALLOW THE ASSESSEE SUFFICIENT OPPO RTUNITY OF HEARING BEFORE PASSING FRESH ORDER AS PER MERITS. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2017. SD/ - (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATED: 22 ND SEPTEMBER, 2017 ITA NO. 3767/MUM/2017 M/S. AQUAMECH ENGINEERING CORPORATION 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -26, MUMBAI 4. THE CIT 28, MUMBAI 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.