AUDREY JOE COUTINHO, MUMBAI V. ITO 21(1)(1), MUMBAI

ITA 4195/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100863 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2014
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Reasonable cause; Condonation of delay
• Section: 142(1); 68; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.4195/M/2014 (AY:2009 - 2010 ) AUDREY JOE COUTINHO, T - 40, P.A. GAWADE BUILDING, AZAD ROAD, JUHU KOLIWADA, JUHU, MUMBAI - 049. / VS. ITO 21(1)(1), MUMBAI. ./ PAN : AERPC3233L ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MANDAR VAIDYA / RESPONDENT BY : MS. NEELIMA V. NADKARNI, DR / DATE OF HEARING : 0 9.0 7 .2015 / DATE OF PRONOUNCEMENT : 14 .08 .2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 10.06.2014 IS AGAINST THE ORDER OF THE CIT (A) - 32, MUMBAI DATED 21.4.2014 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES, LD CIT (A) ERRED IN DECLINING TO CONDONE THE DELAY OF 406 DAYS IN FILING THE APPEAL BEFORE HIM U/S 246A. 2. THE LD CIT (A) FELL IN ERROR OF LAW IN NOT TAKING INTO CONSIDERATION THE MERITS OF THE CASE WHILE DECLINING TO CONDONING THE DELAY. 3. THE LD CIT (A) WAS NOT JUSTIFIED IN NOT FOLLOWING THE PRINCIPLES LAID DOWN IN DECISIONS OF THE HO NBLE APEX COURT WHICH WERE BROUGHT TO HIS NOTICE. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE, WHO IS AN INDIVIDUAL, IS ENGAGED IN THE PROFESSION OF DESIGNING . ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 1,89,710/ - . THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S 143(2) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. CONSIDERING THE ASSESSEES NON - COMPLIANCE TO THE NOTICE U/S 142(1) OF THE ACT EVEN AFTER AFFORDING REASONABLE OPPORTUNITY, AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 13,25,240/ - . IN THE ASSESSMENT AO MADE AN ADDITION OF RS. 11,08,850/ - ON ACCOUNT OF UNEXPLAINED CASH 2 CREDIT U/S 68 OF THE ACT. AGGRIEVED WITH THE SAID DECISION OF THE AO, ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WITH A DELAY OF 406 DAYS. 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE SOUGHT FOR CONDONATION OF DELAY BY FILING AN AFFIDAVIT EXPLAINING THE REASONS FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED PERIOD. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) CAME TO THE CONCLUSION THAT THE SAID DELAY IS FOUND TO BE CAUSED DUE TO NEGLIGENCE OF THE ASSESSEE. CONSIDERING THE ABSENCE OF SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME, CIT (A) REJECTED THE CONDONATION OF DELAY AND NOT ADMITTED THE APPEAL FOR ADJUDICATION ON MERITS. THUS, CIT (A) DISMISSED THE APPEAL. AGGRIEVED WITH THE SAID DECISION OF THE CIT (A) IN DECLINING THE CONDONATION OF 406 DAYS DELAY WITHOUT APPRECIATING THE FACTS , ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 4. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, AT THE OUTSET, LD COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ASSESSEE IS HAVING A STRAINED MARITAL RELATIONSHIP WITH HER HUSBAND AND THE MATTER HAS TRAVELLED TO THE POINT OF FILING PAPERS FOR DIVORCE. FURTHER, LD COUNSEL FOR THE ASSESSEE BROUGHT MY ATTENTION TO THE FACT THAT THE ASSESSEE , ON RECEIPT OF THE ORDER OF THE CIT (A), FORWARDED TO HER SPOUSE, WHO IN TURN HANDED OVER THE NOTICES / ORDERS / DOCUMENTS TO HER CHARTERED ACCOUNTANT (CA) FOR APPROPRIATE ACTION. IN THIS WAY, THE ASSESSEE DID HER JOB AND FINALLY , THE ORDER OF THE AO REACHED TO THE CA FOR INITIATING APPROPRIATE ACTION OF FILING THE APPEAL. IN VIEW OF THE LACK OF COMMUNICATION BETWEEN THE ASSESSEE AND THE SPOUSE AS WELL AS THE CA, THE APPEAL COULD NOT BE FILED IN TIME. THESE FACTS WERE NOT THOROUGHLY APPRECIATED BY THE CIT (A ) AND REJECTED THE ASSESSEES REQUEST FOR CONDONATION OF DELAY. 5. ON THE OTHER HAND, LD DR FOR THE REVENUE HEAVILY RELIED ON THE ORDER OF THE CIT (A) AND SUBMITTED THAT THERE IS NO REASONABLE CAUSE FOR CONDONATION OF DELAY. 6. I HAVE HEARD BOTH THE PART IES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE SUBMISSIONS / AFFIDAVIT OF THE ASSESSEE BEFORE THE CIT (A) REQUESTING FOR CONDONATION OF DELAY, I FIND THE CONTENTS OF PARA (II) ON PAGE 4 OF THE IMPUGNED ORDER ARE RELEVANT IN THIS REGARD. CONSIDERING THE IMPORTANCE OF THE SAID PARA (II), THE SAME IS EXTRACTED AS UNDER: 3 (II). THE APPELLANT HAS REQUESTED FOR CONDONATION OF DELAY ON ACCOUNT OF SUBMISSION THAT THE NOTICES RECEIVED BY H ER WERE FORWARDED TO HER HUSBAND WHO WAS SUPPOSED TO TAKE CARE AND COMPLY WITH THE ASSESSMENT PROCEEDINGS. IN THIS REGARD, IT IS STATED THAT THE ASSESSEE HAS SUBMITTED THAT SHE IS STAYING SEPARATELY WITH HER THREE CHILDREN AND HER RELATIONS WITH HER HUSBA ND WERE STRAINED. IN THE SUBMISSION, THE ASSESSEE HAS MENTIONED TO HAVE BEEN STAYING SEPARATELY SINCE THE YEAR 2008. IT MAY BE MENTIONED THAT THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS COMPLETED IN DECEMBER, 2011 AND THE APPEAL THEREFORE WAS TO BE FILED ONLY SUBSEQUENTLY. WHEN THE APPELLANT HAD STRAINED RELATIONS WITH HER HUSBAND AND WAS STAYING SEPARATELY FROM THE YEAR 2008, IT DOES NOT SEEM PLAUSIBLE THAT DURING THE LATER PART OF YEAR 2011 WHEN THE NOTICE FOR ASSESSMENT WERE BEING ISSUED, THE SAME WERE BEING FORWARDED BY HER, TO HER HUSBAND FOR REQUISITE COMPLIANCE. FURTHER, FOR ANY REASON, AS THERE WAS NO COMPLIANCE MADE DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT SHOULD HAVE TAKEN NOTE OF FINAL ASSESSMENT ORDER PASSED AND CONSEQUENT LIA BILITY ON HER AND SHOULD HAVE TAKEN REQUISITE ACTION THEREAFTER. HOWEVER, THE APPELLANT HAS NOT DONE SO. 7. FROM THE ABOVE, I FIND THERE IS SUFFICIENT REASON FOR NOT FILING THE APPEAL BEFORE THE CIT (A) WITHIN THE PRESCRIBED PERIOD OF LIMITATION AND WIT H A DELAY OF 406 DAYS. WITH THE STRAINED RELATIONSHIPS BETWEEN THE ASSESSEE AND HER HUSBAND, WHO NORMALLY IS IN TOUCH WITH THE CAS, IT IS LIKELY HER HUSBAND DID NOT GIVE REQUISITE ATTENTION TO THE INCOME TAX APPEAL MATTERS OF HIS WIFE. THEREFORE, THERE I S A DELAY OF 406 DAYS IN FILING THE APPEALS BEFORE THE CIT (A). CONSIDERING THE SAME, I AM OF THE OPINION THE ORDER OF THE CIT (A) IS REQUIRED TO BE REVERSED ON THE ISSUE OF CONDONATION OF DELAY . I ORDER ACCORDINGLY AND THE CIT (A) IS DIRECTED TO CONDONE THE DELAY AND TO ADJUDICATE THE ISSUE S ON MERITS AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RES ULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED I N THE OPEN COURT ON 1 4 T H AUGUST, 2015. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 1 4 .8 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI