BALAJI ASIA PACIFIC INC. MUMBAI, MUMBAI V. ITO 20(1(2), MUMBAI

ITA 4653/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79533 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HEMANT VORA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 4653/MUM/2012 ASSESSMENT YEAR: 2007-08 BALAJI ASIA PACIFIC INC. B-316/317, VIRWANI INDUSTRIAL ESTATE, OFF: WESTERN EXPRESS HIGHWAY, GOREGAON (E), MUMBAI- 400 063 VS. ITO-20(1)(2) MUMBAI (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :AAIFB 5279 N ASSESSEE BY : SHRI HEMANT VORA REVENUE BY : SHRI JEEVANLAL LAVIDIYA DATE OF HEARING : 17 .07 .2014 DATE OF PRONOUNCEMENT : 23.07.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-31, MUMBAI DATED 16.05.2012 FOR THE ASSES SMENT YEAR 2007-08. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWIN G GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLA NT ON THE GROUND THAT THE APPEAL WAS FILED BEYOND THE TIME PRESCRIBED U/S 249 (2) OF THE I.T. ACT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN IGNORING THE REASONS FOR DELAY IN FILING T HE APPEAL BY THE APPELLANT, WHICH WAS SPECIFICALLY MENTIONED IN LETTER DATED 21 .11.2011 FILED DURING APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN NOT DECIDING THE APPEAL ON MERITS, AFTER H AVING ADMITTED THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT AND FURT HER INITIATING REMAND PROCEEDINGS WITH REGARD TO THE SAME. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THE MATTER BE RESTORED BACK TO THE CIT(A) FOR ADJUDICATION OF THE GROUNDS OF APPEAL ON MERITS. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS OBSERVED THAT THE ASSESSEE HAD FILED THE APPEAL BEF ORE THE FIRST APPELLATE AUTHORITY ITA NO. 4653/MUM/2012 BALAJI ASIA PACIFIC INC. MUMBAI ASSESSMENT YEAR: 2007-08 2 I.E., LD.CIT(A) ON 19.03.2010 WHICH ACCORDING TO HI M IS TIME BARRED BY 29 DAYS. IN THIS REGARD, THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF THE SAID DELAY EXPLAINING THE REASON THAT THE PARTNER OF THE ASSES SEES FIRM WAS CRITICALLY ILL FROM THE PERIOD OF NOVEMBER 2009 TO SEPTEMBER 2010 AND CONSE QUENTLY HE DIED IN THE MONTH OF SEPTEMBER 2010. IT WAS THE CLAIM OF THE AS SESSEE THAT THE ASSESSMENT ORDER WAS COMMUNICATED TO THE SAID PARTNER AND COUL D NOT BE COMMUNICATED TO OTHER PARTNERS OF THE FIRM IN TIME. HOWEVER, THE SA ID REASON HAS NOT BEEN ACCEPTED BY THE LD.CIT(A) AND DISMISSED THE APPEAL IN LIMINE . AFTER CONSIDERING THE MEDICAL CERTIFICATE OF CAUSE OF DEATH OF THE SAID PARTNER, WE ARE OF THE CONSIDERED VIEW THAT THE LD.CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN F ILING THE APPEAL. IN THIS REGARD, IT IS PERTINENT TO MENTION THAT IT IS SETTLED LAW T HAT WHILE CONDONING THE DELAY THE AUTHORITIES SHOULD TAKE A LENIENT VIEW. IT IS ALWAY S A QUESTION WHETHER THE EXPLANATION OR REASON FOR THE DELAY IS BONA FIDE OR MERELY A DEVICE TO COVER UP THE ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN UNDER HAND WAY. WHEN IT IS FOUND ON R ECORD THAT THE PARTY HAS NOT ACTED MALAFIDE BUT THE REASONS EXPLAINED ARE FACTUA LLY CORRECT, THEN THE AUTHORITY SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUS E AND LEAN IN FAVOUR OF SUCH PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE OPPOSED TO EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED AN D JUSTICE ORIENTED APPROACH HAS TO BE TAKEN BY THE AUTHORITIES WHILE DECIDING THE MATT ER OF CONDONATION OF DELAY. IN VIEW OF THIS LEGAL AND FACTUAL POSITION, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE LD.CIT(A) AND DIRECT HIM TO TAKE UP THE MATTER FOR ADJUDICATING THE ISSUE AFRESH ON MERITS AFTER GIVING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JULY 2014. SD/- SD/- (SANJAY ARORA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.07.2014. *SRIVASTAVA ITA NO. 4653/MUM/2012 BALAJI ASIA PACIFIC INC. MUMBAI ASSESSMENT YEAR: 2007-08 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.