Pansuriya Girishbhai Jadavbhai, RAJKOT-GUJARAT V. The Commissioner of Income Tax-III, RAJKOT-GUJARAT

ITA 444/RJT/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72638 (ITAT-RAJKOT)
• Duration Of Justice: 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 444/RJT/2013 ASSESSMENT YEAR : 2010-11 PANSURIYA GIRISHBHAI JADAVBHAI, GAYATRI, MAYANI NAGAR, CHANDRESHNAGAR MAIN ROAD, RAJKOT PAN : AJQPP 0956 P ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX-III RAJKOT / RESPONDENT / ASSESSEE BY SHRI D R ADHIA, AR / REVENUE BY SHRI AVINASH KUMAR, DR / DATE OF HEARING 26.11.2013 !'# / DATE OF PRONOUNCEMENT 29.11.2013 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 18.07.2013 OF COMMISSIONER OF INCOME-TAX-III, RAJKOT PASSED U/S 1 19(2)(B) OF THE INCOME-TAX ACT, REJECTING THE APPLICATION OF THE ASSESSEE FOR CONDO NATION OF DELAY IN FILING THE RETURN OF INCOME. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE FILED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE RETURN OF INCOME WHEREIN HE CLAIMED REFUND OF RS.5,771/- FOR THE ASSESSING YEAR 2010-11 . IN THIS APPLICATION, IT WAS MENTIONED THAT THE RETURN OF INCOME WAS DELAYED MAI NLY DUE TO REASONABLE CAUSE. IN THE IMPUGNED ORDER, THE LD. COMMISSIONER OF INCOME- TAX-III, RAJKOT REFUSED TO CONDONE THE DELAY ON THE GROUND THAT THE ASSESSEE H AS NOT GIVEN ANY SATISFACTORY REASON SHOWING THE GENUINE HARDSHIP IN THIS REGARD. AGGRIEVED WITH THE ORDER OF LD. COMMISSIONER OF INCOME-TAX-III, RAJKOT, THE ASSESSE E IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E SHRI D R ADHIA, AR APPEARED AND MADE THE FOLLOWING WRITTEN SUBMISSIONS:- 1. THE ASSESSEE HAS FILED HIS RETURN OF INCOME FO R A. Y. 2010-11 ON 12.10.2012. THE LAST DATE FOR FILING THIS RETURN WA S 31-3-2012. THE RETURN WAS THEREFORE FILED LATE BY 6 MONTH AND 11 DAYS. THE AS SESSEE MADE AN APPLICATION FOR CONDONATION OF DELAY AS PROVIDED U/ S. 119(2)(B) ON 31-10-2012 AND THE SAME WAS SUBMITTED BEFORE THE LD. CIT - ILL , RAJKOT ON 1-11-2012. SINCE CONDITIONS LAID DOWN UNDER THE ACT WERE FULFI LLED AND THEREFORE THE DELAY IN MAKING REFUND CLAIM OUGHT TO HAVE BEEN CONDONED U/S. 119(2)(B). DURING THE PERIOD FROM 12-10-2012 TO 16-6-2013, THE ASSESS EE HEARD NOTHING FROM THE LD. CIT. THE DELAY IS ALSO VERY SMALL, I.E. 1-4 -2012 TO 12-10-2012, I.E. 6 MONTHS AND 11 DAYS. 2 444-RJT-2013 - PANSURIYA GIRISHBHAI JADAVBHAI (SMC) 2. THE CLAIM OF THE ASSESSEE IS REGARDING REFUND O F RS. 5,771/- IN RESPECT OF TDS FROM COMMISSION RECEIPT. THE ASSESSEE IS WOR KING AS AGENT WITH SAHARA HOUSING INVESTMENT CORPORATION LTD. THE TDS CERTIFICATE IS ISSUED BY THE SAHARA HOUSING BOARD INVESTMENT CORPORATION LTD . AND THEREFORE, THE GENUINENESS OF THE CLAIM DOES NOT ARISE. IN ALL EAR LIER AND SUBSEQUENT YEARS, THE ASSESSEE USED TO CLAIM SUCH REFUND AND DEPARTME NT HAS ALSO GRANTED REFUND EVERY YEAR. 3. THE LD. CIT VIDE LETTER DATED 17-6-2013 REQUIRE D THE ASSESSEE TO SUBMIT DELAY FOR CONDONATION. SINCE THE ASSESSEE WA S ILL HE REQUESTED TO ALLOW HIM TO COMPLY BY 10-7-2013. BECAUSE OF THE CO NTINUOUS OF ILLNESS OF THE ASSESSEE THE COMPLIANCE THOUGH WAS UNDER ACTIVE PRE PARATION COULD NOT BE MADE. THE LD. CIT VIDE ORDER DATED 18-7-2013 REJECT ED THE SAME. IT IS VERY INTERESTING TO SUBMIT THAT THE DEPARTMENT TOOK ABOU T 10 MONTHS TIME IN CALLING REASONS FROM THE ASSESSEE BUT DID NOT GRANT EVEN 10 MORE DAYS TIME THOUGH THE ASSESSEE WAS ILL AND SIMPLY REJECTED THE APPLIC ATION . 4. SINCE BECAUSE OF THE FOLLOWING DIFFICULTIES, TH E CIRCUMSTANCES WERE BEYOND MY CONTROL AND BECAUSE OF THIS REASONABLE CA USE I COULD NOT FILED THE RETURN IN TIME WHICH IS DELAYED BY ONLY 6 MONTHS AN D 11 DAYS 1. THE LAST DATE FOR FILING THE RETURN WAS 31-3-201 2. MY WIFE DELIVERED SON ON 1-5-2012. THUS DURING THIS FACT AND PERIOD S HE WAS SUFFERING FROM SEVERE DIFFICULTIES. BECAUSE IN THE MONTH OF F EBRUARY 2011, I.E. BEFORE ABOUT 1 YEAR SHE HAD SUFFERED FROM MISCARRIA GE. THUS THIS TIME NOT ONLY SHE BUT ALSO I WAS VERY MUCH AND DEPRESSIV E POSITION 2. AFTER BIRTH OF MY SON ON 1-5-2012, NATURALLY MY WIFE WAS TOTALLY LOOKING AFTER HIM FOR 5-6 MONTHS AND BECAUSE OF THA T I HAD TO LOOK AFTER ENTIRE FAMILY MATTERS AS ALSO TO LOOK AFTER MY ELDE R DAUGHTER OF 8 YEARS OLD, HER EDUCATION, MY JOB, EARNING POSITION AND AL SO OF MY WIFE AND NEWLY BORN SON 3. MY MOTHER IN LAW HAD ALSO MET WITH RIKSHA ACCIDE NT ON FEBRUARY 2011 AND DUE TO HER BRAIN INJURY, MY WIFE AND MY SE LF HAD TO LOOK AFTER HER ALSO 4. MY SISTER IN LAW AND MY DAUGHTER WHO WERE IN AUT O RIKSHA TOGETHER WITH MY MOTHER IN LAW WERE ALSO INJURED AND WHICH A LSO INCREASE MY BURDEN. DUE TO ABOVE REASONS I COULD NOT FILED MY RETURN WH ICH IS LATE BY 6 MONTH AND 11 DAYS. THE LD. CIT OUGHT TO HAVE CONSIDERED THE C ASE ON A BROAD LINE AND HUMANITY ANGEL AND OUGHT TO HAVE CONDONE THE DELAY TO UNABLE THE SUFFERER FAMILY TO GET LEGITIMATE AMOUNT LYING WITH THE DEPA RTMENT ON WHICH THE LAW FULL OWNERSHIP BELONGS TO THEM. THE APPLICATION DESERVES CONDONATION EVEN ON HUMANITY GROUNDS. 5. PROVISIONS OF SEC. 119(2)(B) DOES NOT AUTHORIZE THE COMMISSIONER TO REJECT THE APPLICATION. IT SIMPLY HELPS THE ASSESSE E TO AVOID GENUINE HARDSHIP. THE C.I.T. MAY AUTHORIZE THE A.O. THAT IS THE ONLY REQUIREMENT AND AFTER VERIFICATION OF THE CLAIM THE REFUND IS TO BE GRANT ED. 6. SINCE DURING THE LONG PERIOD FROM 31-10-2012, I .E. DATE OF MAKING APPLICATION TO THE DATE OF PASSING ORDER ON 18-7-20 13 BY THE LD. C.LT., IT IS QUITE CLEAR THAT DURING THE LONG PERIOD OF ABOUT 10 MONTHS, THE DEPARTMENT DID NOTHING FOR SMALL DELAY OF 6 MONTHS IN MAKING CLAIM . THE REJECTION BY THE LD. C.LT. IS NOT AUTHORIZED UNDER THE PROVISIONS OF THE ACT AND HE OUGHT TO HAVE CONDONED THE DELAY. 7. THE HON. KERALA HIGH COURT IN THE CASE OF PALA MARKETING CO-OP. SOCIETY LTD. VS. UNION OF INDIA (311 ITR 177) HAS A LSO BEEN KIND ENOUGH TO 3 444-RJT-2013 - PANSURIYA GIRISHBHAI JADAVBHAI (SMC) DIRECT TO CONDONE THE DELAY CONSIDERING THAT NON-GR ANTING OF REFUND ALSO AMOUNTS TO GENUINE HARDSHIP COVERED U/S. 119(2)(B ) (COPY ENCLOSED). 8. IT IS THEREFORE PRAYED THAT THE ORDER PASSED BY THE LD. C.LT. MAY KINDLY BE CANCELLED AND HE MAY BE DIRECTED TO CONDONE THE DELAY AND ORDER TO PROCESS ASSESSEE'S CLAIM FOR REFUND AND GRANT REFUN D. THE LD. COUNSEL OF THE ASSESSEE ALSO RELIED UPON T HE DECISION OF ITAT, RAJKOT BENCH DATED 08.09.2010 IN ITA NO.1102/RJT/2010 FOR THE ASSESSMENT YEAR 2006-07, WHEREIN THE TRIBUNAL FOLLOWING THE JUDGMENT OF HON BLE KERALA HIGH COURT IN THE CASE OF PALA MARKETING CO-OP. SOCIETY LTD. VS. UNION OF INDIA (311 ITR 177), DIRECTED THE LD. COMMISSIONER OF INCOME-TAX TO CONDONE THE DELAY IN MAKING THE CLAIM BY THE ASSESSEE AND TO PROCESS THE CLAIM FOR REFUND AND GR ANT REFUND TO THE EXTENT FOUND ELIGIBLE. HE SUBMITTED THAT FOLLOWING THESE DECISI ONS, THE LD COMMISSIONER OF INCOME- TAX-III, RAJKOT BE DIRECTED TO CONDONE THE DELAY. SHRI AVINASH KUAMR, DR APPEARED ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE A FORESAID SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. 4. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDER OF LD. COMMISSIONER OF INCOME-TAX REFUSING TO CONDONE THE DELAY IN FILING OF RETURN O INCOME WHEREIN THE ASSESSEE CLAIMED REFUND OF RS.5, 771/- FOR THE ASSESSMENT YEAR 2010-11. RESPECTFULLY FOLLOWING THE DECISION OF ITA T, RAJKOT BENCH DATED 08.09.2010 IN ITA NO.1102/RJT/2010 FOR THE ASSESSMENT YEAR 200 6-07, WHEREIN THE TRIBUNAL FOLLOWING THE JUDGMENT OF HONBLE KERALA HIGH COUR T IN THE CASE OF PALA MARKETING CO-OP. SOCIETY LTD. VS. UNION OF INDIA (311 ITR 177 ), DIRECTED THE LD. COMMISSIONER OF INCOME-TAX TO CONDONE THE DELAY IN MAKING THE CL AIM BY THE ASSESSEE AND TO PROCESS THE CLAIM FOR REFUND AND GRANT REFUND TO TH E EXTENT FOUND ELIGIBLE; I ORDER ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 29.11.2013 !$ /RAJKOT *BT 4 444-RJT-2013 - PANSURIYA GIRISHBHAI JADAVBHAI (SMC) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- PANSURIYA GIRISHBHAI JADAVBHAI, GAYA TRI, MAYANI NAGAR, CHANDRESHNAGAR MAIN ROAD, RAJKOT 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX-III, RAJKOT 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE 5, RAJKOT 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT