SMT. ANURADHA SHARMA, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 396/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6325 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNAM RAI
• Keywords: Period of limitation; Condonation of delay
• Section: 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 396/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 SMT. ANURADHA SHARMA H-179,180, MALVIYA INDUSTRIAL AREA, JAIPUR. CUKE VS. THE ITO, WARD-6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANPPS 6151A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ASHISH SHARMA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. PUNAM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/07/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 13/07/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 22.01.2018 OF CIT (A), FOR THE ASSESSMENT YEAR 2007 -08. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL HOWEVER, GROUND NO. 2 OF THE ASSESSEE IS RELEVANT FOR ADJUDICATION OF THIS APPEA L WHICH READS AS UNDER:- ITA NO. 396/JP/2018 SMT. ANURADHA SHARMA VS. ITO 2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT(A), AJMER HAS GROSSLY ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE ON ACCOUNT OF STATED DEL AY IN FILING OF APPEAL. 2. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) ON THE GROUND OF BARRED BY LIMITATION AS THERE WAS DEL AY OF 37 DAY IN FILING THE APPEAL. THE LD. AR OF THE ASSESSEE HAS SUBMITTE D THAT THE DELAY IN FILING THE APPEAL WAS DULY EXPLAINED AS PER AFFIDAV ITS OF THE LD. AR OF THE ASSESSEE WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A ) IN PARA 3.1 OF THE IMPUGNED ORDER. HOWEVER, THE LD. CIT(A) DECLINE D TO CONDONE THE DELAY IN FILING THE APPEAL AND DISMISSED THE APPEAL IN LIMINE WITHOUT DECIDING THE MATTER ON MERITS. THUS, THE LD. AR HAS PLEADED THAT THE DELAY OF 37 DAYS IN FILING THE APPEAL BEFORE THE LD . CIT(A) MAY BE CONDONED. 3. ON THE OTHER HAND, THE LD. DR VEHEMENTLY OBJECTE D TO THE CONDONATION OF DELAY AND SUBMITTED THAT THE LD. CIT (A) FOUND THE EXPLANATION IS NOT SUFFICIENT FOR DELAY IN FILING T HE APPEAL. THE LD. DR HAS ALSO OBJECTED TO THE OTHER GROUNDS RAISED BY THE AS SESSEE AND PARTICULARLY GROUND NO. 1 OF THE ASSESSEES APPEAL CHALLENGING THE VALIDITY OF REOPENING AND SUBMITTED THAT THE ASSESS EE DID NOT RAISE THIS ITA NO. 396/JP/2018 SMT. ANURADHA SHARMA VS. ITO 3 GROUND BEFORE AUTHORITIES BELOW. SHE HAS RELIED UPO N THE ORDER OF THE LD. CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIALS ON RECORD. THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) BELATEDLY AND ALSO FILED AN APPLICATION FOR CONDONA TION OF DELAY AS WELL AS AFFIDAVIT OF SHRI ARVIND SHARMA (ADVOCATE) THE A UTHORIZED REPRESENTATIVE OF THE ASSESSEE. THE LD. CIT(A) HAS REPRODUCED THE CONTENTS OF THE APPLICATION AND AFFIDAVITS IN PARAS 3 AND 3.1 AS UNDER:- 3.0 IT IS SEEN FROM FORM NO. 35 THAT THE APPEAL HA S BEEN FILED ON 09.06.2014. THE DATE OF SERVICE OF DEMAND NOTICE AS MENTIONED IN FORM IS 03.04.2014. THUS, IT IS CLE AR THAT THE APPEAL HAS NOT BEEN PRESENTED WITHIN 30 DAYS FR OM THE DATE OF SERVICE OF NOTICE OF DEMAND. THE APPELL ANT HAS FILED AN APPLICATION DATED 09.06.2014 FOR CONDONATI ON OF DELAY IN FILING THE APPEAL STATING AS UNDER: 'WITH REFERENCE TO ABOVE WE MAY SUBMIT THAT THE ASS ESSEE HAS RECEIVED THE CAPTIONED ASSESSMENT ORDER DATED 25.03.2014 PASSED U/S 144 READ WITH SECTION 148 ON 03.04.2014 ALONGWITH THE NOTICE OF DEMAND RAISING D EMAND OF RS.1863720/-. WE MAY SUBMIT THAT THE ASSESSEE HANDE D OVER THE ORDER TO HER COUNSEL SHRI ARVIND SHARMA, ADVOCA TE, FOR FURTHER CONSULTATION AND FURTHER ACTION TO BE TAKEN . HOWEVER, DUE TO HIS PREOCCUPATION, HE COULD NOT GIVE TIME FO R THE SAME. AN AFFIDAVIT .9F THE ADVOCATE IN THIS RESPECT IS ENCLOSED HEREWITH. NOW, THE ADVOCATE HAS REFERRED THE MATTER TO US IN THE FIRST WEEK OF JUNE, 2014. HOWEVER, THE PRESCRIB ED TIME LIMIT OF 30 DAYS HAD ALREADY EXPIRED BY THEN. ITA NO. 396/JP/2018 SMT. ANURADHA SHARMA VS. ITO 4 FOR THIS REASON, THERE HAS BEEN A DELAY OF 37 DAYS IN FILING THE APPEAL WHICH MAY KINDLY BE CONDONED.' 3.1 ALONG WITH THE APPLICATION THE APPELLANT HAS A LSO FILED AN AFFIDAVIT OF SHRI ARVIND SHRAMA AFFIRMING AS UNDER: 'I, ARVIND SHARMA S/O SH. NARAYAN DUTT SHARMA AGED 53 R/O OF 8/195, MALVIYA NAGAR, JAIPUR HAVING OFFICE AT G-1, SUFFAL APARTMENT, JAI SINGH HIGHWAY, BANIPARK, JAIPUR SPEC IALLY IN THE CORE AREA OF INDIRECT TAXATION. 1. I BEING CLOSE RELATIVE OF THE ASSESSEE, WAS APPO INTED AS AUTHORIZED REPRESENTATIVE LAWFUL ATTORNEY TO REPRES ENT AND SUBMIT BEFORE THE INCOME TAX DEPARTMENT THE APPEAL AGAINST THE ASSESSMENT ORDER U/S 147 OF THE INCOME TAX OF S MT. ANURADHA SHARMA (PAN: ANPPS6151A) FOR THE ASSESSMEN T YEAR 2007-08. 2. DUE TO THE PREOCCUPANCY IN THE INDIRECT TAXATION MATTER I HAD TO MAKE FREQUENT OUTSIDE VISITS OUTSIDE RAJASTHAN A ND COULD NOT FILE THE APPEAL BEFORE THE COMMISSIONER OF APPEAL I N TIME AND I HAVE ALSO EXPLAINED THE MATTER TO SMT. ANURADHA SHA RMA TO APPOINT ANOTHER COUNSEL TO DEAL THE MATTER IN APPEL LATE PROCEEDINGS. THUS, IT IS CLEAR THAT THE ASSESSEE EXPLAINED THE C AUSE OF DELAY THAT DUE TO THE PRE OCCASION OF THE AUTHORIZED REPRESENTATIV E, THE APPEAL COULD NOT BE FILED WITHIN THE PERIOD OF LIMITATION AND TH EREFORE, THERE WAS A DELAY OF 37 DAYS IN FILING THE APPEAL. THIS EXPLANA TION OF CAUSE OF DELAY WAS DULY SUPPORTED BY THE AFFIDAVIT SHRI ARVIND SHA RMA (ADV.) THE LD. AR OF THE ASSESSEE WHO HAS AFFIRMED THAT DUE PRE OCCUP ANCY IN THE INDIRECT ITA NO. 396/JP/2018 SMT. ANURADHA SHARMA VS. ITO 5 TAXATION MATTER AND FREQUENT OUTSTATION VISITS HE C OULD NOT FILE THE APPEAL BEFORE THE LD. CIT(A) WITHIN THE PERIOD OF L IMITATION. HE HAS ALSO STATED IN THE AFFIDAVIT THAT HE RATHER ADVISED THE ASSESSEE TO APPOINT ANOTHER COUNSEL TO DEAL WITH THE MATTER IN THE APPE LLATE PROCEEDINGS THOUGH THE ASSESSEE DID NOT CHOSE TO CHANGE THE COU NSEL. ACCORDINGLY, WE FIND THAT THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) OF 37 DAYS WAS DULY EXPLAINED AS ATTRIBUTABLE TO THE PREO CCUPANCY OF THE LD. AR OF THE ASSESSEE IN THE OTHER MATTERS AS HE WAS B USY IN ATTENDING INDIRECT TAX MATTERS OUTSIDE RAJASTHAN AND COULD NO T FIND TIME TO FILE THE APPEAL ALSO BEFORE THE LD. CIT(A) WITHIN THE PERIOD OF LIMITATION. THE LD. CIT(A) REJECTED THIS APPLICATION ONLY ON THE GROUND THAT ONCE THE AUTHORIZED REPRESENTATIVE ADVISED THE ASSESSEE TO E NGAGE SOME OTHER COUNSEL THEN THE DELAY IN FILING THE APPEAL CANNOT BE ATTRIBUTED TO THE AUTHORIZED REPRESENTATIVE. WE DO NOT CONCUR WITH TH E VIEW OF THE LD. CIT(A) AND FIND THAT THE ASSESSEE HAS EXPLAINED A S UFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMI TATION. ACCORDINGLY, WE CONDONE THE DELAY OF 37 DAYS IN FILING THE APPEA L BEFORE THE LD. CIT(A). 5. SINCE, THE LD. CIT(A) HAS NOT DECIDED THE MATTER ON MERITS ACCORDINGLY, WE SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT(A) FOR ITA NO. 396/JP/2018 SMT. ANURADHA SHARMA VS. ITO 6 ADJUDICATION OF THE SAME ON MERITS AFTER GIVING AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE. NEEDLESS TO SAY THE ASSESSEE IS AT LIBERTY TO RAISE THE GROUNDS AGAINST THE REOPENI NG OF THE ASSESSMENT IF SHE WISHES SO. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13/07/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/07/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. ANURADHA SHARMA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT - ITO, WARD-6(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 396/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR