NARAYAN DAS KAMDAR, Kishangarh V. ITO, Kishangarh

ITA 4/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2063 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA JCIT DHK
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay; Bonafide mistake

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 FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SIN GH YADAV, AM VK;DJ VIHY LA-@ WTA NOS. 02, 03 & 04/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 2005-06,2006-07. SH. MEWA SINGH BOLA, M/S BOLA AUTOMOBILES ROAD NO. 3, JHUNJHUNU. CUKE VS. ADWT INTERNATIONAL TAXATION , JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHNPB 5477 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14.12.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27/02/2018. VKNS'K@ ORDER PER BENCH THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE THREE SEPARATE ORDERS OF COMMISSIONER OF WEALTH TAX (APPEALS)-42, NEW DELHI, DATED 16/02/2016 AND 19/02/2016 FOR THE ASSESSMENT YEARS 2004-05, 20 05-06 & 2006-07 RESPECTIVELY. 2. THERE IS DELAY OF 332 DAYS IN FILING THESE APPEA LS. THE ASSESSEE HAS FILED THE PETITION FOR CONDONATION OF DELAY AS WELL AS SUPPOR TING AFFIDAVIT. 3. WE HAVE HEARD THE LD. AR AS WELL AS LD. D/R AND PERUSED THE EXPLANATION FURNISHED BY THE ASSESSEE IN THE APPLICATION FOR CO NDONATION OF DELAY. THE ASSESSEE HAS STATED TO BE A NON RESIDENT INDIAN (NRI) LIVING IN SAUDI ARABIA SINCE LAST 25 YEARS AND HAS NOT VISITED IN INDIA FOR LAST 2-3 YEA RS DURING WHICH THE WEALTH TAX ASSESSMENT PROCEEDINGS WERE UNDER PROGRESS. IT WAS FURTHER SUBMITTED THAT THE ASSESSMENT PROCEEDINGS WERE COMPLETED IN THE ABSENC E OF ASSESSEE AND WITHOUT 2 WTA NOS. 02,03 & 04/JP/2017. SH. MEWA SINGH BOLA, JHUNJHUNU. PROVIDING SUFFICIENT OPPORTUNITIES OF BEING HEARD. THE ASSESSEE HAS STATED IN THE APPLICATION THAT THE IMPUGNED ORDERS PASSED BY THE LD. COMMISSIONER OF WEALTH TAX (A) WERE NOT RECEIVED BY THE ASSESSEE BUT THE SAME WERE SERVED UPON THE BUSINESS PLACE OF THE ASSESSEE IN INDIA, AND WAS KEPT BY HIS STAFF WITHOUT REALIZING THE IMPORTANCE OF THE SAME. THEREFORE, THE ASSESSEE WA S NOT AWARE ABOUT THE IMPUGNED ORDERS PASSED BY THE LD. COMMISSIONER OF W EALTH-TAX (A), AND ONLY WHEN THE NOTICE FOR LEVYING THE PENALTY BY THE AO WERE R ECEIVED BY THE ASSESSEE, THE ASSESSEE REALIZED THE NON RECEIPTS OF IMPUGNED ORDE RS PASSED BY THE CWT(A). 4. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT ON LY ON RECEIPT OF NOTICES FOR LEVY OF PENALTY, THE ASSESSEE CONSULTED WITH HIS CO UNSEL WHO ENQUIRED ABOUT THE STATUS OF APPEALS FILED AGAINST THE ORDERS PASSED B Y THE LD. COMMISSIONER OF WEALTH TAX (A). THUS, IT WAS PLEADED THAT THE DELAY IN FI LING THE APPEAL IS NEITHER INTENTIONAL NOR WILLFUL BUT DUE TO THE BONAFIDE MISTAKE AND IS ABSOLUTELY INADVERTENT AND HAS OCCURRED DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE. THUS, THE LD. AR HAS PLEADED THAT THE DELAY IN FILING THE APPEAL MAY BE CONDONED. THE CWT (A) PASSED IMPUGNED ORDERS EX-PARTE WITHOUT HEARING THE ASSESSEE. 5. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OPP OSED THE CONDONATION OF DELAY AND SUBMITTED THAT THIS IS NOT AN ORDINARY DE LAY IN FILING THE APPEAL, BUT THE ASSESSEE CANNOT MISUSE THE PROCESS OF LAW BY FILING THE BELATED APPEAL AFTER ABOUT 332 DAYS. THUS, THE LD. DR HAS CONTENDED THAT EXPL ANATION OF THE ASSESSEE CANNOT BE CONSIDERED AS REASONABLE OR SUFFICIENT CAUSE FOR NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITATION. 6. HAVING CONSIDERED THE RIVAL CONTENTIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE ASSESSEE IS A NON-RESIDENT INDIAN (NRI) AND WORKING IN SAUDI 3 WTA NOS. 02,03 & 04/JP/2017. SH. MEWA SINGH BOLA, JHUNJHUNU. ARABIA FOR LAST MORE THAN 20 YEARS. THE ASSESSEE I S HAVING HIS BUSINESS IN INDIA IN THE NAME AND STYLE OF M/S BOLA AUTOMOBILES AT JHUJH UNU. THOUGH, THE ASSESSE CHALLENGED THE ASSESSMENT ORDER PASSED BY THE AO BE FORE THE LD. CWT(A), HOWEVER, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CWT(A) AND THE IMPUGNED ORDERS WERE PASSED EX-PARTE. THIS SHOWS THAT THE A SSESSEE BEING AWAY AND OUTSIDE INDIA COULD NOT LOOK AFTER THE TAX MATTERS PERSONAL LY, BUT WAS COMPLETELY DEPENDENT UPON REPRESENTATIVES FOR THIS PURPOSE. IT IS ALSO NOT IN A DISPUTE THAT THE IMPUGNED ORDERS WERE NOT RECEIVED BY THE ASSESSEE PERSONALLY BECAUSE OF HIS NON-AVAILABILITY OF INDIA BUT WERE SERVED AT THE BUSINESS PLACE OF T HE ASSESSEE. THE POSSIBILITIES OF NOT BRINGING THE IMPUGNED ORDERS TO THE KNOWLEDGE O F THE ASSESSEE CANNOT BE RULED OUT. THOUGH, THE ASSESSEE CANNOT TAKE THE PLEA OF HIS BEING NRI COULD NOT FILE THE APPEAL WITHIN A PERIOD OF LIMITATION HOWEVER, SINCE THE ASSESSEE HAS EXPLAINED THAT THE ORDERS WERE SERVED AT THE BUSINESS PREMISES OF THE ASSESSEE AND THE EMPLOYEE OF THE ASSESSEE COULD NOT BROUGHT TO THE NOTICE OF THE ASSESSEE, THE RECEIPT OF THE IMPUGNED ORDERS. THUS, THE EXPLANATION AND REASONS PUT FORTH BY THE ASSESEE DO NOT SHOW THAT THE ASSESSEE HAS ACTED IN MALAFIDE AND TO TAKE ADVANTAGE OF SAVING THE LIMITATION IN AN UNDER HAND WAY. WE FIND THAT THE ASSESSEE BEING NOT VISTED INDIA FOR LAST 2-3 YEARS ITSELF IS A COGENT REASON FOR NO T TAKING THE REQUISITE STEPS IN TIME FOR FILING THE APPEALS AGAINST THE IMPUGNED ORDERS. THEREFORE, FOLLOWING THE SETTLED PROPOSITION OF LAW THAT THE COURTS SHOULD TAKE A LI BERAL APPROACH WHILE DECIDING THE CONDONATION OF DELAY WE ARE SATISFIED THAT THE REAS ON AND CAUSE EXPLAINED BY THE ASSESSEE ARE SUFFICIENT FOR NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITATION. THE CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED WH EN PITTED AGAINST THE TECHNICAL CONSIDERATION. THEREFORE, HAVING REGARD TO THE FACT S AND CIRCUMSTANCES OF THE CASE 4 WTA NOS. 02,03 & 04/JP/2017. SH. MEWA SINGH BOLA, JHUNJHUNU. AND IN THE INTEREST OF JUSTICE WE CONDONE THE DELAY OF 332 DAYS IN FILING THESE APPEALS. 7. THE ASSESSEE HAS RAISED THE COMMON GROUNDS IN TH ESE APPEALS:- THE GROUND RAISED FOR THE A.Y. 2004-05 ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, LD. CWT (A) ERRED IN CONFIRMING THE ORDER PASSED BY LD. AO WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 1.1 THAT THE LD. CWT(A) ERRED IN CONFIRMING THE COMPUTA TION OF NET WEALTH OF ASSESSEE AS RS. 55,52,000/- AS MADE BY LD . AO WITHOUT CONSIDERING THE SUBMISSION MADE BY ASSESSEE. 1.2 THAT, THE LD. CWT(A) ERRED IN CONFIRMING THE ORDER PASSED BY LD. AO IGNORING THE SUBMISSION MADE BY ASSESSEE THAT ALL T HE PROPERTIES UNDER CONSIDERATION WERE AGRICULTURAL LANDS AND THUS EXEM PT FROM WEALTH TAX. 2. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELE TE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT TH E TIME OF HEARING OF APPEAL. 8. WE HAVE HEARD THE LD. AR AS WELL AS LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE IMPUGNED ORDERS WERE PASSE D BY THE CWT(A) EX PARTE WHEN NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. SINCE THE ASSESSEE IS DEPEND ON THE AUTHORIZED REPRESENTATIVE AND COULD NOT LOOK AFTER THE MATTER PERSONALLY AS STAYING OUTSIDE INDIA THEREFORE, IN THE FACTS AND C IRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LD. CWT(A). ACCORDINGLY, THE IMPUG NED ORDERS ARE SET ASIDE AND THE MATTER IS REMANDED TO THE RECORD OF THE CWT(A) FOR DECIDING THE SAME AFRESH AFTER ALLOWING THE OPPORTUNITY OF HEARING TO THE AS SESSEE. WE MAKE IT CLEAR THAT IF THE ASSESSEE FAILS TO APPEAR BEFORE THE LD. CWT THE N THE OPPORTUNITY GRANTED BY US WOULD STAND VACATED. 5 WTA NOS. 02,03 & 04/JP/2017. SH. MEWA SINGH BOLA, JHUNJHUNU. 9. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/02/2018. SD/- SD/- ( FOE FLAG ;KNO ( JH FOT; IKY JKO] ) (VIKRAM SINGH YADAV) ( VIJAY PAL RAO) YS[KK LNL; /ACCOUNTANT MEMBER U;KF;D LNL; / JUDICIAL MEMBER JAIPUR DATED:-27/02/2018. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-SH. MEWA SINGH BOLA, JHUNJHUNU. 2. THE RESPONDENT ADWT, INTERNATIONAL TAXATION, J AIPUR. 3. THE CIT. 4. THE CIT (4), 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (WTA NO. 02, 03 & 04/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR