PAMWI TISSUES LTD, MUMBAI V. ITO 8(2)-4, MUMBAI

ITA 3973/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1949 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-04-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 24-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT KUMAR SINHA
• Assessee Lawyers: ARUN SATHE
• Keywords: Reasonable cause; Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD( AM) I.T.A. NO.3973/MUM/09 :ASSESSMENT YEAR: 2003-04 I.T.A. NO.3974/MUM/09 :ASSESSMENT YEAR: 2003-04 I.T.A. NO.3975/MUM/09 :ASSESSMENT YEAR: 2004-05 M/S. PAMWI TISSUES LTD., C/O. M/S. V.B. GOEL & COMPNY, 102, UNIQUE TOWER, OFF. S.V.ROAD, GOREGAON (W), MUMBAI 400 062. PAN: AABCP 1946 J VS. THE DY. COMMISSIONER OF INCOME-TAX, RANGE 8(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARUN SATHE RESPONDENT BY : SHRI AJIT KUMAR SINHA O R D E R PER T.R. SOOD, AM: THESE THREE APPEALS OF THE ASSESSEE HAVE BEEN FILE D LATE BY TWO DAYS. A PETITION ALONG WITH THE AFFIDAVIT FOR CONDONATION O F DELAY HAS BEEN FILED. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ASSES SEE COMPANY IS A SICK INDUSTRIAL COMPANY DULY REGISTERED WITH B.I.F.R. AND THE PRESE NT DIRECTORS ARE NEW. SINCE THE PRESENT DIRECTOR WAS TRAVELING TO LOOK AFTER HIS OL D BUSINESS THE APPEAL COULD BE SIGNED LATE BY TWO DAYS AND MADE A PRAYER FOR CONDO NATION OF DELAY. 2. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE OPPOSED THE SUBMISSION OF THE ASSESSEE. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE SATISFIED THAT THE ASSESSEE HAD SUFFICIENT CAUSE FOR FILING THE APPEAL LATE BY TWO DAYS AND THEREFORE, THE SAME IS CONDONED. ITA NO. 3973/MUM/2009 : A.Y. 2003-04 4. IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN RAISED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS APPEAL HAS BEEN BASICA LLY DISMISSED FOR THE REASON THAT APPEAL WAS FILED LATE. HE SUBMITTED THAT ACTUALLY T HERE WAS NO DELAY AND THE LEARNED ITA NOS.1973-75/M/09 M/S PAMVI TISSUES LTD. 2 CIT(A) RECKONED THE DELAY ON THE BASIS OF DATE OF P ASSING OF THE ASSESSMENT ORDER. NOW THE ORDER WAS PASSED ON 27.12.2005 BUT THE SAME WAS RECEIVED BY THE ASSESSEE ON 4 TH DECEMBER 2006. IN FACT, SHRI K.R. SHARMA, MANAGER OF THE COMPANY HAD VISITED THE INCOME-TAX DEPARTMENT IN CONNECTION WIT H THE INSPECTION OF RECORDS WHEREIN IT WAS FOUND THAT AN ASSESSMENT ORDER HAS B EEN PASSED FOR THE ASSESSMENT YEAR 2003-04 ON 27.12.2005. SINCE THE SAME WAS NEVE R SERVED WITH THE ASSESSEE A CERTIFIED COPY OF THE SAME WAS OBTAINED ON 29.11.20 06. IN THIS CONNECTION AN AFFIDAVIT CONTAINING THESE AVERMENTS HAS ALSO BEEN FILED BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT IN VIEW O F THESE FACTS AND AVERMENTS CONTAINED IN THE AFFIDAVIT THERE WAS NO DELAY IN FI LING THE APPEAL BEFORE THE LEARNED CIT(A). 5. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE SUBMITTED THAT WHEN THE ASSESSMENT ORDER WAS PASSED ON 27.12.2005 AND THE SAME MUST HAVE SERVED WITHIN A REASONABLE TIME. IN ANY CASE NO REA SON FOR DELAY IN FILING THE APPEAL WAS FILED BEFORE THE LEARNED CIT(A) AND THEREFORE, HE WAS JUSTIFIED IN NOT CONDONING THE DELAY. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. PARA 1.2 OF THE APPELLATE ORDER READS AS UNDER: AS PER RECORD, THE ASSESSMENT ORDER WAS PASSED BY THE AO ON 27.12.2005 AND THE APPEAL HAS BEEN FILED ON 20.12.2 006. THAT MEANS THERE IS A DELAY OF ALMOST ONE YEAR IN FILING THE A PPEAL. DURING THE APPELLATE PROCEEDINGS, THE APPELLANT HAS NOT SUBMIT TED ANY REASON FOR FILING THE APPEAL LATE FOR ALMOST ONE YEAR. WITHOUT ANY REASONABLE CAUSE MENTIONED BY THE APPELLANT, THE DELAY CANNOT BE CON DONED . 7. FROM THE ABOVE, IT IS CLEAR THAT THE LEARNED CI T(A) HAS RECKONED THE DATE OF SERVICE OF ASSESSMENT ORDER ON 27.12.2005. FURTHER, SINCE THE LIMITATION WOULD START FROM THE DATE OF SERVICE AND NOT FROM THE DATE OF T HE ASSESSMENT ORDER. THEREFORE, THE DELAY OF SERVICE WOULD HAVE TO BE INVESTIGATED. SINCE IT HAS BEEN CLAIMED BEFORE US THAT CERTIFIED COPY OF THE ASSESSMENT ORDER WAS COLLECTED ON 29.11.2006 AND ITA NOS.1973-75/M/09 M/S PAMVI TISSUES LTD. 3 OTHERWISE THE DEPARTMENT MADE THE SERVICE ON 4.12.2 006 AND THEREFORE, THESE FACTS NEED VERIFICATION AT THE END OF THE CIT(A). THEREFO RE, WE SET ASIDE HIS ORDER AND REMIT THE SAME BACK TO HIS FILE WITH DIRECTION TO R E-CONSIDER THE ISSUE REGARDING CONDONATION AFTER VERIFYING THE FACTS CONTAINED IN THE AFFIDAVIT FILED BEFORE US REGARDING SERVICE OF ASSESSMENT ORDER ON 04.12.2006 , CERTIFIED COPY OF WHICH WAS COLLECTED ON 29.11.2006. 8. THE LEARNED CIT(A) SHOULD FIRST ADJUDICATE THE I SSUE REGARDING CONDONATION OF DELAY AND/OR ADMITTANCE OF APPEAL AND THEREAFTER D ECIDE THE ISSUE ON MERITS AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ITA NO. 3974/MUM/2009 : 10. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF TH E LEARNED CIT(A) IN CONFIRMING THE PENALTY U/S.271(1)(C) OF THE ACT. 11. AFTER HEARING BOTH THE PARTIES, WE FIND NO EFFE CTIVE OPPORTUNITY HAS BEEN GIVEN WHILE ADJUDICATING THE PENALTY PROCEEDINGS BY THE CIT(A). IN ANY CASE, THE QUANTUM APPEAL HAS BEEN SET ASIDE BY US TO THE FILE OF THE CIT(A) AND THEREFORE, THE PENALTY PROCEEDINGS SHOULD ALSO GO BACK TO THE FILE OF CIT(A) WITH DIRECTION TO RE- ADJUDICATE THE ISSUE AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. 12. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ITA NO.3975/MUM/2009 : A.Y. 2004-05 13. IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE. AFTER HEARING BOTH THE PARTIES WE FIND THAT THE CIT(A) HA S NOT GIVEN REASONABLE AND EFFECTIVE OPPORTUNITY TO THE ASSESSEE TO REPRESENT THEIR CASE. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMIT THE MATTER BACK TO HIS FILE WITH DIRECTION TO ADJUDICATE THE S AME AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. ITA NOS.1973-75/M/09 M/S PAMVI TISSUES LTD. 4 14. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THI S 30 TH DAY OF APRIL, 2010. SD. SD. (D.K. AGARWAL) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 30 TH APRIL, 2010. KN/ COPY TO: 1. THE ASSESSEE 2. THE ITO, WARD 7(1)(3), MUMBAI 3. THE CIT-VII, MUMBAI 4. THE CIT(A)-VII, MUMBAI 5. THE DR, C BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUM BAI