Bijay Kumar Shaw, Kolkata V. ITO, WD-51(3), KOLKATA, Kolkata

ITA 457/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4245 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 07-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2015
• Court: TRIBUNAL
• Department Lawyers: DEBASISH BANERJEE
• Assessee Lawyers: MIRAJ D SHAH LD
• Section: 143(3)

Judgement Text

1 ITA NO.457/KOL/2015 BIJAY KUMAR SHAW, AY 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI S. S. VISWAN ETHRA RAVI, JM] I.T.A NO. 457/KOL/2015 ASSESSMENT YEAR: 2010-11 BIJAY KUMAR SHAW VS. INCOME-TAX OFFICER, WD-51( 3), KOLKATA (PAN: ATIPS1078D) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 07.11.2016 DATE OF PRONOUNCEMENT: 16.11.2016 FOR THE APPELLANT: SHRI MIRAJ D. SHAH, LD. AR FOR THE RESPONDENT: SHRI DEBASISH BANERJEE, JC IT ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-15, KOLKATA VIDE APPEAL NO. 34/CIT(A)-15/14-15/WD-51(3)/KOL DATED 30.01.201 5. ASSESSMENT WAS FRAMED BY ITO, WARD-51(3), KOLKATA U/S. 143(3) OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2010-11 VIDE HIS ORDER DATED 05.03.20 13. 2. AT THE OUTSET, IT IS NOTICED THAT THE REGISTRY HAS ISSUED A DEFECT MEMO TO THE ASSESSEE STATING THAT THE ASSESSEE OUGHT TO HAVE PAID FILIN G FEE OF RS.10,000/- AS AGAINST RS.500/- PAID BY THE ASSESSEE THEREBY RESULTING IN DEFICIT F EE OF RS.9500/- WHICH REQUIRES TO BE RECTIFIED BY THE ASSESSEE. THE ASSESSEE GAVE A REP LY TO THE REGISTRY STATING THAT THE LD. CIT(A) HAD NOT ADMITTED THE APPEAL BY NOT CONDONING THE DELAY AND HENCE, IN THIS SCENARIO, THE ASSESSEE FALLS UNDER THE PROVISIONS OF RESIDUAR Y CLAUSE PROVIDED IN SEC. 253(6)(D) OF THE ACT, WHICH READS AS UNDER: (6) AN APPEAL TO THE APPELLATE TRIBUNAL SHALL BE I N THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER AND SHALL, IN THE CASE OF AN APPEAL MADE, ON OR AFTER THE 1ST DAY OF OCTOBER, 1998, IRRESPECTIVE OF THE DATE OF INITIATI ON OF THE ASSESSMENT PROCEEDINGS RELATING THERETO, BE ACCOMPANIED BY A FEE OF,- (A )WHETHER THE TOTAL INCOME OF THE ASSESSEE AS COM PUTED BY THE ASSESSING OFFICER, IN THE CASE TO WHICH THE APPEAL RELATES, IS ONE HUNDRED THOUSAN D RUPEES OR LESS, FIVE HUNDRED RUPEES, 2 ITA NO.457/KOL/2015 BIJAY KUMAR SHAW, AY 2010-11 (B)WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTED AS AFORESAID IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN ONE HUNDRED THOUSAND RU PEES BUT NOT MORE THAN TWO HUNDRED THOUSAND RUPEES, ONE THOUSAND FIVE HUNDRED RUPEES, (C)WHERE THE TOTAL INCOME OF THE ASSESSEE COMPUTED AS AFORESAID IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN TWO HUNDRED THOUSAND RU PEES, ONE PER CENT OF THE ASSESSED INCOME, SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES , (D) WHERE THE SUBJECT-MATTER OF AN APPEAL RELATES T O ANY MATTER OTHER THAN THOSE SPECIFIED IN CLAUSES (A), (B) AND (C), FIVE HUNDRED RUPEES:- PROVIDED THAT NO SUCH FEE SHALL BE PAYABLE IN THE C ASE OF AN APPEAL REFERRED TO IN SUB-SECTION (2) OR A MEMORANDUM OF CROSS OBJECTIONS REFERRED TO IN SUB-SECTION (4).' THE LD. AR ALSO PLACED RELIANCE ON THE FOLLOWING DE CISIONS IN SUPPORT OF HIS CONTENTIONS: (I) DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CAS E OF RAJAKAMAL POLYMERS (P) LTD. VS. CIT (2007) 291 ITR 314 (KAR); (II) V. VASUDEVAN VS. ACIT (2012) 52 SOT 72 AND (III) DR. A. NARESH BABU VS. ITO (2010) 5 ITR 485 ACCORDINGLY, THE LD. AR ARGUED THAT THE ASSESSEE HA D PAID THE PRESCRIBED FEE AND PRAYED FOR ADMISSION OF THE APPEAL. IN RESPONSE TO THIS, NO A RGUMENTS WERE ADVANCED BY THE LD. DR. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THERE IS NO DEFECT IN PAYMENT O F FILING FEE BY THE ASSESSEE AS ADMITTEDLY THE CASE OF THE ASSESSEE FALLS UNDER SECTION 253(6) (D) OF THE ACT AS THE LD. CIT(A) HAD NOT ADMITTED THE APPEAL AND HAD NOT ADJUDICATED THE GRO UNDS OF ADDITIONS ON MERITS. WE FIND THAT THE RELIANCE PLACED BY THE LD. AR ON THE DECIS ION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF RAJAKAMAL POLYMERS (P) LTD., SUPRA IS V ERY WELL FOUNDED, WHEREIN IT WAS HELD AS UNDER: 8. IN THE CASE ON HAND, IT IS SEEN THAT THE APPEL LATE COMMISSIONER HAS CHOSEN TO REJECT THE APPEAL ON THE GROUND OF LIMITATION. IN OUR VIEW, SU CH AN ORDER WOULD FALL WITHIN CLAUSE (D) OF SECTION 253(6) OF THE ACT. HENCE, ONLY A SUM OF RS. 500 IS PAYABLE IN TERMS OF SECTION 253 (6)(D) OF THE ACT. UNFORTUNATELY, THE TRIBUNAL, WIT HOUT EVEN LOOKING INTO THE BASIC REQUIREMENT OF COURT FEE, HAS CHOSEN TO BLINDLY ACCEPT THE OBJE CTION OF THE REGISTRAR. IN THE CIRCUMSTANCES, WE ARE SATISFIED THAT THE APPELLANT IS JUSTIFIED IN COMPLAINING THAT ORDER OF THE TRIBUNAL RUNS COUNTER TO SECTION 253(6)(D) OF THE ACT. WE ACCEPT THE SUBMISSION OF APPELLANT-ASSESSEE. ON THE FACTS AND GIVEN CIRCUMSTANCES, WE DEEM IT PROPE R TO HOLD THAT APPELLANT IS LIABLE TO PAY COURT FEE AT THE RATE OF RS. 500 OF EACH ONE OF THE APPEALS FOR THE PURPOSE OF MAINTAINING APPEALS BEFORE THE TRIBUNAL. THE APPELLANT HAS MADE OVER THE COURT FEE OF RS. 12,000. SINCE THE APPELLANT IS ONLY LIABLE TO PAY A SUM OF RS. 2, 500 AS COURT FEE, REGISTRAR IS DIRECTED TO REFUND THE BALANCE SUM OF RS. 9,500 TO THE APPELLAN T WITHIN ONE MONTH FROM TODAY. ON FAILURE, APPELLANT IS ENTITLED FOR INTEREST AT THE RATE OF 1 0 PER CENT P.A. FOR DELAYED PAYMENT FROM THE DATE OF DELAY TILL THE DATE OF PAYMENT. 3 ITA NO.457/KOL/2015 BIJAY KUMAR SHAW, AY 2010-11 RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE ADMIT THE APPEAL FILED BY THE ASSESSEE BEFORE US. THE ASSESSEE HAS RAISED THE FOLLOWING G ROUNDS BEFORE US: 1. FOR THAT THE LD. CIT, APPEAL WAS NOT JUSTIFIED IN, NOT CONDONING THE DELAY, IN FILING OF THE APPEAL. THE DELAY IN FILING OF THE APPEAL WAS DUE TO REASONS BEYOND THE ASSESSEE CONTROL AND HENCE THE SAME BE CONDONED. 2. FOR THAT THE LD. CIT, APPEAL WAS NOT JUSTIFIED I N, DISMISSING FOR NON PROSECUTION. THE CIT, APPEAL BE DIRECTED TO DISPOSE THE APPEAL ON MERITS AS PER LAW. 4. BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS A TRADER IN MOBILE ACCESSORIES AND ALSO DOES JOB WORK FOR SISTEMA SHYAM TELE SERVICES LTD. THE RETURN OF INCOME FOR AY 2010-11 WAS ELECTRONICALLY FILED BY THE ASSESSEE ON 12.10.2 010 DECLARING TAXABLE INCOME OF RS.7,10,630/-. THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT DATED 05.03.2013 DETERMINING THE ASSESSED INCOME AT RS.37,76,659/- A FTER MAKING VARIOUS ADDITIONS AND DISALLOWANCES. THERE WAS A DELAY OF 4 MONTHS IN F ILING THE APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A) FOR WHICH THE ASSESSEE FILED AN AFFI DAVIT STATING THAT THE ASSESSMENT ORDERS WERE DULY HANDED OVER TO THEIR LAWYER SHRI P. K. BA SU FOR PREPARATION AND FILING OF APPEAL BEFORE THE LD. CIT(A). BUT IN VIEW OF CERTAIN RENO VATION WORK WHICH WERE GOING ON IN THE PREMISES OF THE LAWYER, THESE APPEAL PAPERS GOT MI SPLACED AND THE SAME WERE TRACED BY THE LAWYER ONLY ON 20.08.2013 AT WHICH POINT OF TIME PA RALLEL PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE ALSO IN PROGRESS. THE ASSESSEE RUS HED TO THE LAWYERS OFFICE AFTER REALIZING THAT THE PENALTY PROCEEDINGS WERE IN PROGRESS AND A FTER REALIZING THAT APPEAL HAS NOT BEEN FILED BY ITS COUNSEL. ACCORDINGLY, THE APPEAL WAS ULTIMATELY FILED WITH A DELAY OF 4 MONTHS BEFORE THE LD. CIT(A). THE LD. CIT(A) DID N OT CONDONE THE DELAY ON THE GROUND THAT THERE WAS NO CONFIRMATION FILED FROM THE CONCE RNED COUNSEL OF THE ASSESSEE REGARDING THE FACTS NOTED BY THE ASSESSEE IN HIS AFFIDAVIT. A GGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO GONE THROUGH THE AFFIDAVIT FILED BEFORE THE LD. CIT(A). WE ALSO FIND THAT THE LD. AR ALSO PLACED ON RECORD THE CONFIRMAT ION OF THE CONCERNED COUNSEL SHRI P. K. BASU VIDE HIS LETTER DATED 04.11.2016 WHEREIN HE HA D CATEGORICALLY ADMITTED THAT DUE TO RENOVATION BEING UNDERTAKEN IN HIS OFFICE THE SAID APPEAL PAPERS WERE INADVERTENTLY KEPT IN THE FILE OF ANOTHER CLIENT AND APPEAL COULD NOT BE PREPARED BY HIS OFFICE IN TIME. HE ALSO 4 ITA NO.457/KOL/2015 BIJAY KUMAR SHAW, AY 2010-11 ADMITTED THAT IN THE MONTH OF AUGUST, 2013, THIS MI STAKE WAS DETECTED WHEN THE ASSESSEE ASKED FOR APPEAL ACKNOWLEDGMENT TO BE FILED BEFORE THE AO FOR KEEPING THE PENALTY PROCEEDINGS IN ABEYANCE. HE FAIRLY ADMITTED THAT IT WAS ONLY DUE TO HUMAN ERROR AT HIS OFFICE THAT APPEAL BEFORE THE LD. CIT(A) COULD NOT BE FILE D IN TIME. WE FIND THAT IT IS ONLY BECAUSE OF NON-CONFIRMATION OF THE FACTS STATED BY THE ASSE SSEE BY THE CONCERNED COUNSEL, THE LD. CIT(A) PROCEEDED NOT TO CONDONE THE DELAY. SINCE T HE SAID CONFIRMATION IS VERY MUCH AVAILABLE ON RECORD BEFORE US, WE DIRECT THE LD. CI T(A) TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICATION AND PROCEED TO ADJUDICATE T HE ISSUES RAISED BEFORE HIM ON MERITS. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.11.2016 SD/- SD/- (S.S. VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 16TH NOVEMBER, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI BIJAY KUMAR SHAW, C/O D. J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020. 2 RESPONDENT ITO, WARD-51(3), KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA B ENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .