KHAJA MOHIADDIN G. SYED, MUMBAI V. ITO WD 24(1)(1)/30(1)(1), MUMBAI

ITA 4533/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1306 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 04-08-2015
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: KARAN H HALAI; HARSHIL A SHAH
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.4533/MUM /2015 ASSESSMENT YEAR-2011-12 SHRI KHAJA MOHIADDIN G.SYED, B-202, SAGAR TOWER, AQSA MASJID LANE, OPP. 24 KARAT, OFF. S.V. ROAD, FAIRDEAL ROAD, JOGESHWARI (WEST), MUMBAI-400102 / VS. INCOME TAX OFFICER, WARD-31(2)(2), ROOM NO.709, 7 TH FLOOR, C- 11, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 PAN NO. ABHPS6792D ( / ASSESSEE) ( / REVENUE) / ASSESSEE BY SHRI KARAN H. HALAI & SHRI HARSHIL A. SHAH / REVENUE BY SHRI RAJESH KUMAR YADAV- DR ! / DATE OF HEARING : 20/04/2017 ! / DATE OF ORDER: 24/04/2017 ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 16/03/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, ON THE GROUND THAT PROPER OPPORTUNITY OF HEARING WAS NOT PROVIDED TO THE ASSESSEE AND FURTHE R IGNORING THE PROVISIONS OF SECTION 282 OF THE INCOM E TAX ACT, 1961 (HEREINAFTER THE ACT). 2. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY OF 39 DAYS ALO NG WITH AN AFFIDAVIT, STATING THE REASONS OF DELAY. THE LD. COUNSEL FOR THE ASSESSEE ADVANCED ARGUMENTS, WHICH IS IDENT ICAL TO THE FACTS MENTIONED IN THE APPLICATION. THE LD. DR CONTENDED THAT THE ASSESSEE WAS EXPECTED TO BE VIGI LANT, THEREFORE, DELAY MAY NOT BE CONDONED AND IF CONDONE D, DELAY OF EACH DAY HAS TO BE EXPLAINED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO F AR AS, CONDONATION OF DELAY IS CONCERNED NO DOUBT FILING O F AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFO RE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEALS ARE TO BE FILE D IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERT HELESS, A LIBERAL APPROACH HAS TO BE ADOPTED BY THE APPELLATE ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 3 AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA-FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILI NG OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFU SAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATT ER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD T O MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECH NICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. 2.2. THE HONBLE APEX COURT IN A CELEBRATED DECISION IN COLLECTOR, LAND ACQUISITION VS MST. KAT IJI & ORS. 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AG AINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THA T AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERAT E DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERIN G MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NEGLI GENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUC H CASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUA TELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEAN INGFUL MANNER, WHICH SUB-SERVES THE END OF JUSTICE- THAT B EING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTIO N OF THE ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 4 COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CA USE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE H ONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAF IDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEI VE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE H ONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUS TICE TO PARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGIS LATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUS TICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROAC H IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE D OES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS CO URTS IN THE HIERARCHY. 2.3. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PAT IL VS. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS O F EACH ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 5 CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESS ION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERA L CONSTRUCTION. 2.4. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS THE CASE O F THE PRESENT ASSESSEE. HAVING MADE THE AFORESAID OBSERVA TION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUD ING FROM HONBLE APEX COURT, THE CIRCUMSTANCES NARRATED BY THE ASSESSEE, WHEREIN, HE HAS STATED/EXPLAINED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELA Y IS CONDONED. 3. DURING HEARING, SHRI KARAN H. HALAI & HARSHIL A. SHAH, LD. COUNSEL FOR THE ASSESSEE, CONTENDED TH AT THE NECESSARY DETAILS FROM THE BANKS COULD NOT BE COLLE CTED AT THE RELEVANT TIME, THEREFORE, COULD NOT BE FURNI SHED. IT WAS CONTENDED THAT THE ASSESSEE IS IN POSITION TO F ILE THE DETAILS AND THE ADDITION WAS MADE FOR WANTS OF SUCH ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 6 DETAILS. IT WAS PLEADED THAT IN THE INTEREST OF JUS TICE, ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE. S HRI RAJESH KR. YADAV, LD. DR, THOUGH DEFENDED THE ADDIT ION BY CONTENDING THAT NECESSARY DETAILS WERE NOT FILED BY THE ASSESSEE BUT HAD NO OBJECTION, IF ONE MORE OPPORTUN ITY IS PROVIDED TO THE ASSESSEE. IT WAS ALSO CONTENDED THA T THE ASSESSEE KNOWINGLY DID NOT APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE GROUN D RAISED BEFORE THIS TRIBUNAL ARE THAT REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. WE FIND THAT THE ASSESSEE COULD NOT APPEA R BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN SPITE OF OPPORTUNITY SO PROVIDED. HOWEVER, BEFORE U S, THE ASSESSEE CONTENDED THAT THE NECESSARY DETAILS, WHIC H WERE TO BE FILED BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), COULD NOT BE COLLECTED FROM THE BANK S, DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES. THE MANDATE O F ARTICLE-265 OF CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES, THEREFORE, TAKING A LENIENT VIEW AND CONSIDERING THE CIRCUMSTANCES NARRATED BEFORE US, W E REMAND THIS APPEAL TO THE FILE OF THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION IN ACCO RDANCE WITH LAW. HOWEVER, CONSIDERING THE ARGUMENTS OF THE LD. DR AND THE FACTUAL MATRIX, WE DIRECT THE ASSESSEE T O APPROACH THE OFFICE OF THE LD. COMMISSIONER OF INCO ME ITA NO.4533/MUM/2015 SHRI KHAJA MOHIADDIN G.SYED 7 TAX (APPEALS) ALONG WITH NECESSARY EVIDENCE, IF AN Y, ON 14/06/2017. THE LD. FIRST APPELLATE AUTHORITY MAY H EAR THE ASSESSEE EITHER ON 14/06/2017 OR ANY MUTUALLY CONVENIENT DATE. THUS, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/04/2017. SD/- SD /- (RAJENDRA) (JOGINDER SINGH) !' / ACCOUNTANT MEMBER #' / JUDICIAL MEMBER MUMBAI; # DATED : 24/04/2017 F{X~{T? P.S/. . . $#%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. %& '( / THE APPELLANT (RESPECTIVE ASSESSEE) 2. )*'( / THE RESPONDENT. 3. ++ , ( %& ) / THE CIT, MUMBAI. 4. ++ , / CIT(A)- , MUMBAI, 5. /01)2 , +%& !%23 , / DR, ITAT, MUMBAI 6. 145 / GUARD FILE. / BY ORDER, */&) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI