Smt. Suman Kumari Legal Heir of Sh. Harejinder Singh, Hoshiarpur V. The Income Tax Officer, Hoshiarpur

ITA 409/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8803 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-01-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKARDR
• Assessee Lawyers: J K PASSI
• Section: 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: (CIRCUIT BENCH AT JALANDHAR) BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO. 409/ASR/2016 (ASSESSMENT YEAR-2005-06) SUMAN KUMARI LEGAL HEIR OF SH. HAREJINDER SINGH PROP M/S HARJINDERA BARTAN STORE, MAIN ROAD, MAHILPUR, DISTT. HOSHIARPUR. PAN NO.BAFPS5724M (ASSESSEE) VS .. ITO ,WARD (I), HOSHIARPUR. (REVENUE) ASSESSEE BY SHRI . J. K. PASSI, AR. REVENUE BY SHRI BHAWANI SHANKAR,DR. ORDER PER, A. D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2005- 06, TAKING THE FOLLOWING GROUNDS: 1. THAT CIT (A) ORDER UNDER APPEAL IS AGAINST LAW AND FACTS OF THE CASE. 2. THAT THE LEARNED CIT(A) SHOULD HAVE CONDON THE D ELAY IN FILING OF APPEAL AS THE ASSESSEE COUNSEL SH. J. K. PASSI, ADVOCATE WAS ADMITTED IN HOSPITAL FROM 20.02.2013 T O 13.03.2013 IN ICU AT DMC, LUDHIANA AND WAS ON BED R EST FOR LONG TIME DUE TO WEAKNESS HAVING TYPE TO DIABETES M ELLITUES, DATE OF HEARING 16.01.2017 DATE OF PRONOUNCEMENT 20.01.2017 I.T.A NO. 409/ASR/2016 2 HYPERTENSION, KYPYOSCOLIOSIS, DILATED CARDIOMYOPATH Y, B/L PNEUMNITIS, ACUTE KIDNEY INJURY AND BPH GRADE-I. 3. THAT THE LEARNED CIT (A) DID NOT CONDON THE DELA Y BY MENTIONING IN THE ORDER THAT THE APPEAL WAS FILED O N 22.02.2016, WHICH WAS ACTUALLY FILED ON 22.03.2013 BY DEPOSITING CIT (A) FEE OF RS 1,000/- ON 22.03.2013 IN THE ORIENTAL BANK OF COMMERCE, ROSHAN ROAD, HOSHIARPUR VIDE RECEIPT NO. 03, BSR CODE 0360290 AND DUPLICATE COPY OF APPEAL WAS FILED ON 22.02.2016. 4. THAT THE LEARNED AO PASSED TWO ASSESSMENT ORDERS DATED 23.01.2013 AND 06.02.2013 FOR THE SAME ASSESS MENT YEAR. THE ORIGINAL APPEAL WAS FILED WITHIN TIME WIT H THE CIT OFFICE, JALANDHAR SENT THROUGH COURIER ON 22.03.201 3, BUT THE APPEAL WAS NOT AVAILABLE IN THE OFFICE. 5. THAT THE PROCEEDING IN THIS CASE WAS STARTED BY ISSUING NOTICE U/S 148 ON 29.03.2012 UPON THE LEGAL HEIR SM T. SUMAN KUMARI W/O LATE HARJINDER SINGH AND SERVED UPON HER ON 31.03.2012. THE ASSESSEE EXPIRED ON 18.06.2007 AND THE PROCEEDING INITIATED AGAINST HIS LEGAL HEIR U?S 148 OF THE ACT IS ILLEGAL, UNJUSTIFIED AND UNWARRANTED BY THE FACTS O F THE CASE AS HELD IN THE CASE OF CIT V/S HEMANATHAN (2016) 285 C TR 182(M.D) HIGH COURT(COPY OF THE JUDGMENT IS ATTACHE D HEREWITH). 6. THAT SH. HARJINDER SINGH PURCHASED THIS LAND ON BEHALF OF HIS UNCLE SH. RAGHUBIR SINGH WHO HAS GIVEN RS. 1,25,00,000/- FOR PURCHASE AND FOR INVESTMENT IN PU RCHASE OF PROPERTIES AS ARE EVIDENCE FROM THE CIVIL SUIT FILE BY HIS UNCLE FAMILY AGAINST THE LEGAL HEIR IN THE CIVIL COURT. T HE ACTUAL I.T.A NO. 409/ASR/2016 3 BENEFICIAL IS RAGHUBIR SINGH WHO MAY BE SUMMONED AN D PROCEEDING IF ANY SHOULD BE STARTED AGAINST HIM. 2. GROUND NO. 1 IS GENERAL. 3. AS PER GROUND NOS. 2 AND 3, THE LD. CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN THE FILING OF THE ASSESSEES APPEAL, AS THE ASSE SSEES COUNSEL WAS ADMITTED IN HOSPITAL FROM 20.02.13, TO 13.03.2013 IN THE ICU, A T DMC, LUDHIANA, AND WAS ON BED REST FOR A LONG TIME; AND THAT THE LD. CIT(A) D ID NOT CONDONE THE DELAY BY MENTIONING IN HIS ORDER THAT THE APPEAL WAS FILED O N 22.02.2016, WHEREAS IT WAS ACTUALLY FILED ON 22.03.2013 AND IT WAS A DUPLICATE COPY OF THE APPEAL, WHICH WAS FILED ON 22.02.2016. 4. THE LD. COUNSEL FOR THE ASSESSEE, IN THIS REGARD , HAS REITERATED THE CONTENTS OF GROUND NOS. 2 AND 3, WHEREAS THE LD. DR HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 5. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, WE FIND THAT WHILE REFUSING TO CONDONE THE DELAY IN FILING OF THE ASSESSEES APPEAL, THE LD. CIT(A) HAS OBSERVED, INTER ALIA, TH AT THERE WAS NO EVIDENCE OF THE FILING OF THE APPEAL AND THAT NO APPEAL WAS FOUND E NTERED IN THE APPEALS REGISTER OF THE CIT(A)S OFFICE. 6. HOWEVER, IN PARAS 2 AND 5 OF THE ASSESSEES APPL ICATION FOR CONDONATION OF DELAY, WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A) AT PAGES 2 AND 3 OF HIS ORDER, THE ASSESSEE STATED THAT THE ASSESSEES COUNSEL HAD SENT THE APPEAL TO THE LD. CIT(A), JALANDHAR, CENTRAL REVENUE BUILDING, JALANDHAR, THR OUGH TRACKON COURIER ON I.T.A NO. 409/ASR/2016 4 22.03.2013, THE RECEIPT OF WHICH WAS NOT AVAILABLE WITH THE COUNSEL DUE TO HIS SERIOUS ILLNESS AND THE FACT THAT THE WHOLE FAMILY OF THE COUNSEL WAS MENTALLY DISTURBED AT THAT TIME. THE ASSESSEES COUNSEL HAS ALSO STATED SO IN PARA 6 OF HIS AFFIDAVIT (APB-54-56) DATED 07.06.2016, FILED BEFOR E THE LD. CIT(A). 7. THIS ASPECT HAS NOT BEEN INQUIRED INTO BY THE LD . CIT(A) WHILE REJECTING THE ASSESSEES APPLICATION FOR CONDONATION OF DELAY. AC CORDINGLY, IN THE INTEREST OF JUSTICE, WE REMIT THIS APPEAL TO THE FILE OF THE LD . CIT(A), TO ASCERTAIN THE CORRECT FACTS BY MAKING/CAUSING TO BE MADE ENQUIRIES FROM T HE SAID TRACKON COURIER AND, THEREAFTER, TO DECIDE THE APPEAL AFRESH, IN ACCORDA NCE WITH LAW, ON AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH E ASSESSEE, NO DOUBT, SHALL CO- OPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT (A). ORDERED, ACCORDINGLY. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /01/2017. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUTANT MEMBER JUDICIAL MEMBER DATED 20 /01/2017 *AKV* ON TOUR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT BY ORDER AR/SR.P.S./P.S.