Shanti Lal Jain, Udaipur V. ITO, Ward-1, Chittorgarh

ITA 39/JODH/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9165 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER ITA NO. 39/JODH/2020 (ASSESSMENT YEAR-2009-10) SHANTI LAL JAIN, 287A, SECTOR-9, HIRAN MAGRI, SAVINA, UDAIPUR (RAJ). VS I.T.O., WARD-1, CHITTORGARH. (APPELLANT) (RESPONDENT) PAN: ABMPJ 8392 B ASSESSEE BY NONE REVENUE BY MISS. KAJAL SINGH (JCIT- DR) DATE OF HEARING 10/08/2021 DATE OF PRONOUNCEMENT 12/08/2021 O R D E R PER: SANDEEP GOSAIN, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-1, UDAIPUR DATED 05/07/2018 FOR THE A.Y. 2009-10, WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN. 1. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ORDER PASSED BY LD. AO WHICH IS BAD IN LAW AND BAD ON FACTS. 2. A. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 4,00,000/-. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. B. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF LD. AO IN WHICH DOES NOT HAVE ANY EVIDENCE TO PROVE ALLEGATION ON WHICH WE CAN RELY I.E. THE DEPARTMENT FAILED TO ESTABLISHMENT CANDIDNESS OF THE TRANSACTION. WHERE THERE IS NO EVIDENCE, ONLY ON THE BASIS OF STATEMENT OF THIRD PERSON, ADDITION HAS BEEN MADE. 2 ITA NO. 39/JODH/2020 SHANTI LAL JAIN VS ITO C. THE ITAT HAS ALLOWED APPEAL ON SIMILAR CASE IN CASE OF SHRI MEHTAB SINGH UJJAWAL VS ITO WARD 3(1), JODHPUR, ORDER DATED 18/01/2019. MR. MEHTAB SINGH UJJAWAL WAS ONE OF THE BUYER IN SAME DEAL. 3. THE PENALTY CHARGED IS BAD IN LAW AND BAD ON FACTS. 4. THE APPELLANT PRAYS FOR SUITABLE COSTS. 5. THE APPELLANT CRAVE LIBERTY TO ADD, AMEND, ALTER OR MODIFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 3. HAVING CONSIDERED THE RIVAL CONTENTION OF THE LD. DR AND CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM PERUSAL OF RECORD, WE FOUND THAT THERE IS DELAY OF 517 DAYS IN FILING THE PRESENT APPEAL BEFORE THE TRIBUNAL AND FOR WHICH, THE ASSESSEE HAS SUBMITTED APPLICATION FOR CONDONATION OF DELAY ALONGWITH AN AFFIDAVIT MENTIONING THE REASON FOR DELAY IN FILING THE APPEAL. AT THE TIME OF HEARING BEFORE THE TRIBUNAL, NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. WE ALSO OBSERVED FROM PERUSAL OF THE RECORD THAT NONE HAS ALSO APPEARED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS DECIDED THE APPEAL EX PARTE. IN HIS CONDONATION APPLICATION, THE ASSESSEE HAS SUBMITTED AS UNDER: I HAVE RECEIVED THE ORDER OF COMMISSIONER (APPEALS), IN CASE FOR ASSESSMENT YEAR 2009-10, DUE TO FAMILY PROBLEM (MY WIFE IS SUFFERING FROM SERIOUS DISEASE), I COULD NOT CONNECT WITH MY CHARTERED ACCOUNTANT, BESIDES THAT THE SAME CASE HAS BEEN SETTLED BEFORE THE CIT-APPEAL AND ITAT BENCH. BY REFERRING THE CITED DECISION I WAS FILED RECTIFICATION LETTER TO A.O. ON DATED 12/02/2019 BUT I HAVE NOT BEEN INTIMATED TILL NOW. MY AFFIDAVIT DETAILING THE AFORESAID FACTS AND THESE 3 ITA NO. 39/JODH/2020 SHANTI LAL JAIN VS ITO MAY KINDLY BE PLACED BEFORE THE HONBLE APPELLATE TRIBUNAL FOR CONDONATION OF THE DELAY IN SUBMISSION OF THE APPEAL. 4. IN HIS AFFIDAVIT, THE ASSESSEE HAS SUBMITTED AS UNDER: 1. THAT I AM ASSESSED TO INCOME-TAX BY THE ASSESSING OFFICER, WARD-1, CHITTORGARH, PERMANENT ACCOUNT NUMBER-ABMPJ 8392 B. 2. THAT I HAD PREFERRED AN APPEAL TO THE COMMISSIONER (APPEALS) AGAINST THE ASSESSING OFFICERS ORDER PASSED U/S 143(3) R.W.S. 147. 3. OWING TO FAMILY PROBLEM (MY WIFE IS SUFFERING FROM SERIOUS DISEASE) I WAS CONTINUOUSLY BUSY IN TREATMENT, SHE IS HANDICAPPED AND I THEREFORE, I AM DISTURBED IN LAST YEAR. MY MIND WAS NOT STABLE ON ACCOUNT OF FAMILY PROBLEM, SO I COULD NOT CONNECT WITH MY CHARTERED ACCOUNTANT. 4. I WOULD LIKE TO BRING IN YOUR NOTICE THAT THE SAME ISSUE HAS BEEN SETTLED IN VARIOUS CASES AT THE STAGE OF ITAT AS WELL AS CIT-APPEAL. 5. I WOULD LIKE TO BRING IN YOUR NOTICE THAT A SIMILAR ISSUE HAVING IDENTICAL FACTS HAS ALREADY BEEN DISPOSED OFF BY THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI MEHTAB SINGH UJJAWAL VS ITO, WARD 3(1), JODHPUR IN ITA NO. 271/JODH/2018 FOR THE ASSESSMENT YEAR 2009-10 VIDE ORDER DATED 18/01/2019. IT WAS POINTED OUT THAT IN THE SAID CASE ALSO, SIMILAR ADDITION WAS MADE ON THE BASIS OF THE STATEMENT OF THE AFORESAID PERSON I.E. SHRI MADAN MOHAN GUPTA. COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD. 6. I AM ALWAYS COOPERATED THE DEPARTMENT, YOU MAY VERIFY THE SAME FROM OUR PAST HISTORY. WE NEVER DISOBEY THE ORDER OF THE DEPARTMENT. OWNING TO ABOVE CERTAIN CIRCUMSTANCES THE APPEAL COULD NOT FILED WITHIN TIME. 7. THAT BEING AGGRIEVED BY THE SAID ORDER I REQUESTED MY CHARTERED ACCOUNTANT M/S SAGAR GOLCHA & CO. CHARTERED ACCOUNTANTS TO PREFER AN APPEAL TO THE HONBLE APPELLATE TRIBUNAL. 8. I FURTHER DECLARE THAT THE ABOVE STATEMENT IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 9. THUS KINDLY CONSIDER MY APPEAL. 4 ITA NO. 39/JODH/2020 SHANTI LAL JAIN VS ITO 5. PER CONTRA, THE LD. DR SUBMITTED THAT THERE IS A SUBSTANTIAL DELAY OF 517 DAYS IN FILING THE PRESENT APPEAL BY THE ASSESSEE AND THE APPLICATION SO FILED BY THE ASSESSEE DOES NOT REFLECT ANY REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR THE DELAY IN FILING THE PRESENT APPEAL. SHE ACCORDINGLY OPPOSED CONDONING THE DELAY IN FILING THE PRESENT APPEAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE AND IS AN ADMITTED FACT THAT THERE HAS BEEN A DELAY IN FILING THE PRESENT APPEAL BY 517 DAYS. THERE IS ALSO NO DISPUTE THAT UNDER SECTION 253(5) OF THE ACT, THE TRIBUNAL MAY ADMIT AN APPEAL FILED BEYOND THE PERIOD OF LIMITATION WHERE IT IS SATISFIED THAT THERE EXISTS A SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE FOR NOT PRESENTING THE APPEAL WITHIN THE PRESCRIBED TIME. THE EXPLANATION OF THE ASSESSEE THEREFORE BECOMES RELEVANT TO DETERMINE WHETHER THE SAME REFLECTS SUFFICIENT AND REASONABLE CAUSE ON HIS PART IN NOT PRESENTING THE PRESENT APPEAL WITHIN THE PRESCRIBED TIME. IN THE INSTANT CASE, IT HAS BEEN STATED BY THE ASSESSEE THAT DUE TO SUFFERING FROM SERIOUS DISEASE OF WIFE OF ASSESSEE AND DUE TO WHICH HIS MENTAL CONDITION WAS NOT GOOD AND THAT WAS THE REASON TO NOT FILE THE APPEAL WITHIN STIPULATED PERIOD. AS REGARDS THE SUFFICIENCY OF CAUSE FOR FILING THE APPEALS BELATEDLY, IT IS SETTLED PRINCIPLES OF LAW THAT THE COURTS HAVE TO TAKE LIBERAL APPROACH WHILE INTERPRETING THE EXPRESSION SUFFICIENT CAUSE FOR CONDONATION OF DELAY. IN CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI (1987) 167 ITR 471 , THE HONBLE SUPREME COURT HAS LAID DOWN THE PRINCIPLE THAT THE 5 ITA NO. 39/JODH/2020 SHANTI LAL JAIN VS ITO POWER TO CONDONE THE DELAY PROVIDED UNDER THE STATUTE IS TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO THE PARTIES BY DISPOSING OF THE MATTER ON MERITS, THEREFORE, WHILE CONSIDERING THE MATTERS FOR CONDONATION OF DELAY, THE LAW MUST BE APPLIED IN A MEANINGFUL MANNER WHICH SUBSERVES ENDS OF JUSTICE AND TECHNICAL CONSIDERATIONS SHOULD NOT COME ON THE WAY OF CAUSE OF SUBSTANTIAL JUSTICE. THERE IS NO QUARREL THAT THE EXPLANATION AND REASONS EXPLAINED FOR DELAY MUST BE BONAFIDE AND NOT MERELY A DEVICE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN THE UNDERHAND WAY. IF THE PARTY WHO IS SEEKING CONDONATION OF DELAY HAS NOT ACTED IN MALAFIDE MANNER AND REASONS EXPLAINED ARE FACTUALLY CORRECT THEN THE COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND LEAN IN FAVOUR OF SUCH PARTY. A JUSTICE-ORIENTED APPROACH HAS TO BE TAKEN WHILE DECIDING THE MATTER FOR CONDONATION OF DELAY. HOWEVER, THIS DOES NOT MEAN THAT A LITIGANT GETS FREE RIGHT TO APPROACH THE COURT AT ITS WILL. 7. IF WE APPLY THE SETTLED PRINCIPLES AS LAID DOWN BY THE HONBLE SUPREME COURT AS WELL AS OTHER COURTS ON THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE HAS EXPLAINED CAUSE OF DELAY, THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY OF 517 DAYS IN FILING THE PRESENT APPEAL AND REMAND THE MATTER BACK TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE LD. CIT(A) IN DECIDING THE APPEAL ON MERITS AND WITHOUT ANY SUFFICIENT REASON, NOT TO TAKE 6 ITA NO. 39/JODH/2020 SHANTI LAL JAIN VS ITO FURTHER ADJOURNMENTS. IF THE ASSESSEE TAKES ADJOURNMENT WITHOUT ANY SUFFICIENT AND PLAUSIBLE REASON, THEN THE LD. CIT(A) IS AT LIBERTY TO PASS ORDER IN ACCORDANCE WITH MATERIAL AVAILABLE ON RECORD. 8. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER IS PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST, 2021. SD/- SD/- (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR DATED 12/08/2021 *RANJAN COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6. GUARD FILE (ITA NO. 39/JODH/2020) ASSISTANT REGISTRAR JODHPUR BENCH