K.K. ENTERPRISES, MUMBAI V. ITO 24((1)(1), MUMBAI

ITA 4173/MUM/2011

• Counselvise Citation: 417319914 RSA 2011
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: N M PORWAL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH MUMBAI BEFORE SHRI PRAMOD KUMAR(AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO.4173/MUM/2011 ASSESSMENT YEAR 2001-02 M/S. K.K. ENTERPRISES, 212,ADARSH NAGAR, OSHIWARA LINK ROAD, JOGESHWARI (W), MUMBAI-400 102 PAN-AADFK 8497N VS. THE ITO-24(1)(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI N.M. PORWAL RESPONDENT BY: SHRI P.K.B. MENON DATE OF HEARING : 6.9.2011 DATE OF PRONOUNCEMENT: 6.9.2011 O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED25.5.2009 PASSED BY THE LD. CIT(A)-XXIV FOR TH E ASSESSMENT YEAR 2001- 02 . 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS IN RECEIPT OF LD. CIT(A)S ORDER DT. 25 TH MAY, 2009 FOR A.Y. 2001-02 3. THE LD. CIT(A) HELD AS FOLLOWS: THE APPEAL IS DIRECTED AGAINST THE ORDER U/S.144 OF THE I.T. ACT DATED 17.03.2004. THE APPEAL WAS FILED ON 12.01.200 9 I.E. MORE THAN 4 YEARS 9 MONTHS AFTER PASSING THE ASSESSMENT ORDER. THE NOTICE OF ITA NO. 4173/M/2011 2 HEARING WAS SENT TO THE APPELLANT BY SPEED POST WIT H ACKNOWLEDGEMENT ON 19.02.2009 FIXING THE HEARING ON 31.03.2009. THE NOTICE WAS RETURNED UN-SERVED BY THE POSTAL AUT HORITY. ANOTHER NOTICE WAS SENT ON 06.04.2009 BY SPEED POST WITH AC KNOWLEDGEMENT FIXING THE HEARING ON 18.5.2009. THIS NOTICE WAS A LSO RETURNED UN- SERVED. BOTH THE NOTICES WERE SENT ON THE ADDRESS GIVEN IN THE MEMORANDUM OF APPEAL. THE APPELLANT DID NOT INTIMA TE ANY CHANGE OF ADDRESS. UNDER THE CIRCUMSTANCES, IT IS PRESUMED T HAT THE APPELLANT DOES NOT WANT TO MAKE SUBMISSIONS WITH EVIDENCES FO R EXPLAINING THE LONG DELAY IN FILING THE APPEAL AND FOR SUPPORTING THE GROUNDS OF APPEAL. THE APPELLANT HAD FILLED A CONDONATION LETTER WITH THE MEMORANDUM OF APPEAL. IT MENTIONED THEREIN THAT IT COULD NOT REPA Y SOME LOAN AND THE LOAN CREDITOR FORCED IT TO SELL THE OFFICE SOMETIME IN THE ASSESSMENT YEAR 2002-03. IT IS ALSO MENTIONED THEREIN THAT ITS PARTNERS WERE NOT SETTLED THEREAFTER AND WERE MENTALLY DISTURBED. IT A LSO MENTIONED THAT IT WAS NOT AWARE OF THE I.T. PROCEEDING. THESE SUBM ISSIONS ARE NOT FOUND AS SUFFICIENT REASONS FOR LONG DELAY OF SEVER AL YEARS IN FILING OF APPEAL. MOREOVER THE REASONS ARE NOT SUPPORTED BY ANY EVIDENCE. AS SUCH I CANNOT CONDONE SUCH A LONG DELAY. THE APPEAL IS REJECTED AS NOT ADMITTED. 3. THE LD. COUNSEL FOR THE ASSESSEE SHRI N.M. PORWA L SUBMITTED THE FOLLOWING FACTS AND PRAYED THAT THE LD. CIT(A)S OR DER BE REVERSED. THE APPELLANT RECEIVED THE ASSESSMENT ORDER DATED 17.03.2004 ON 15.09.2008 (APPEARING AT PAPER BOOK PAGE NOS.1 TO 2) AS SUBMITTED IN FORM 35 WHICH HAS NOT BEEN DISPUTED BY THE DEPAR TMENT . THE APPLICANT HAS ALSO INFORMED TO THIS EFFECT IN HIS L ETTER DATED NIL ON PARA 1 PAGE NO.2 (APPEARING AT PAPER BOOK PAGE NO.18) AC KNOWLEDGED BY OUR STAFF ON 12.01.2009 READING AS UNDER: WE WERE NOT AWARE THAT ASSESSMENT PROCEEDING WAS I NITIATED AGAINST OUR FIRM. WHEN I WAS TRYING TO SORTING OUT PERSONAL ISSUE WITH SPOUSE, THAT TIME I CAME TO KNOW THAT ASSESSMENT FOR THE ASS ESSMENT YEAR 2001-02 WAS PASSED U/S.144 DEMANDING INCOME TAX OF ` 1480953/-. I HAVE THEN APPLY FOR CERTIFIED TRUE COPY OF ASSESSME NT ORDER TO THE ASSESSING OFFICER 24(1)(1) ON 11.12.2008 AND I RECEI VED ASSESSMENT ORDER ON 15.12.2008. THE APPLICANT FILED FORM 35 ALONG WITH ALL REQUISIT E APPEAL PAPERS ON 12.01.2009 WITHIN 27 DAYS FROM THE RECEIPT OF THE A SSESSMENT ORDER. THUS, YOUR HONOUR WILL APPRECIATE THAT THE APPEAL W AS FILED WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THE ASSESSMENT ORD ER AND THERE WAS NO DELAY IN FILING THE SAID APPEAL. ITA NO. 4173/M/2011 3 THE APPLICANT HAD CLEARLY MENTIONED IN FORM 35 (APP EARING AT PAPER BOOK PAGE NOS. 11 T 16) UNDER ITEM NO.7 THAT THE A SSESSMENT ORDER DATED 17.03.2004 WAS RECEIVED BY HIM ON 15.12.2008 AND HE FILED THE APPEAL PAPERS ON 12.01.2009 AS IS EVIDENT FROM THE ACKNOWLEDGEMENT STAMP AFFIXED ON FORM 35 FILED BEFORE THE HONBLE C IT(A). DUE TO WRONG LEGAL ADVICE RECEIVED, THE APPLICANT H AS FILED CONDONATION OF DELAY LETTER AND HE HAS ALSO MENTIONED IN THE CO NDONATION OF DELAY LETTER (APPEARING AT PAPER BOOK NOS.17 TO 18) ON PA RA 1 PAGE NO.2 THAT HE HAD APPLIED FOR THE COPY OF THE ASSESSMENT ORDER ON 11.12.2008 AND HAD RECEIVED THE SAME ON 15.12.2008. PROBABLY, HE WAS NOT AWARE THAT THE APPEAL FILED WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THE ASSESSMENT ORDER IS IN TIME AND THER E WAS NO DELAY AT ALL IN THIS CASE. THEREFORE, THE APPEAL IS FILED ALONG WITH FORM 35 AND ALL REQUISITE PAPERS WAS IN TIME AND THE SAME SHOULD NO T HAVE BEEN REJECTED ON ACCOUNT OF DELAY IN FILING THE APPEAL A S NOT ADMITTED. IT IS, THEREFORE, WE REQUEST YOUR HONOUR TO KINDLY RECALL THE SAID HONBLE CIT(A) ORDER DATED 25.05.2009 (APPEARING AT PAPER B OOK PAGE NOS.19 TO 20) AND RE-FIX THE SAME FOR HEARING EARLI EST POSSIBLE. THE HONBLE CIT(A) HAS COUNTED THE DELAY IN FILING THE APPEAL FROM THE DATE OF THE ASSESSMENT ORDER AND CALCULATED THE DEL AY AT 4 YEARS AND 9 MONTHS. WHEREAS HONBLE CIT(A) SHOULD HAVE COUNTED THE DELAY AFTER 30 DAYS OF THE DATE OF RECEIPT OF THE ASSESSMENT OR DER IN FILING OF THE APPEAL. THE APPLICANT FILED FORM 35 ALONG WITH ALL REQUISITE APPEAL PAPERS ON 12.01.2009 WITHIN 27 DAYS FROM THE RECEIP T OF THE ASSESSMENT ORDER. THUS, YOUR HONOUR WILL APPRECIAT E THAT THE APPEAL WAS FILED WITHIN 30 DAYS FROM THE DATE OF RECEIPT O F THE ASSESSMENT ORDER AND THERE WAS NO DELAY IN FILING THE SAID APP EAL. THIS IS THE MISTAKE APPARENT ON RECORD. 4. THE LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OU T AT PAGE 11 OF THE PAPER BOOK IN FORM NO. 35 WHEREIN THE ACKNOWLEDGEME NT DATE APPEARS TO BE ON 12.1.2009. WHEN THE LD. DEPARTMENTAL REPRESENTA TIVE WAS CONFRONTED AS TO WHETHER THE ISSUE SHOULD GO BACK TO THE LD. CIT( A) TO VERIFY THE DATE OF RECEIPT OF THE ASSESSMENT ORDER FOR CALCULATING THE DELAY IN FILING THE APPEAL, THE LD. DR STATED THAT HE HAD NO OBJECTION. IN THES E CIRCUMSTANCES, WE DIRECT THE LD. CIT(A) TO GIVE A REASONABLE OPPORTUN ITY TO THE ASSESSEE TO PRODUCE ALL MATERIALS/EVIDENCES IN SUPPORT OF THEI R CONTENTION AND THE LD. CIT(A) SHALL PASS THE ORDER WITHIN 15 DAYS FROM THE RECEIPT OF THIS ORDER AND SHALL DECIDE THE MATTER IN ACCORDANCE WITH LAW. ITA NO. 4173/M/2011 4 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 6.9.2011. SD/- SD/- ( PRAMOD KUMAR) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 6 TH SEPTEMBER, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI