M/s G.G.Enterprise., Durgapur V. I.T.O. Wd - 1(2),Durgapur, Durgapur

ITA 47/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100033 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VARSHA JALAN
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 47 / KOL / 2013 ASSESSMENT YEAR :2009-10 M/S G.G.ENTERPRISE ROOM NO. 13, BLOCK-05, MAHAMAYA BAZAR, DURGAPUR 713207 [ PAN NO.AAGFG 9915 N ] V/S . INCOME TAX OFFICER WARD-1(2), DURGAPUR, CITY CENTRE, PIN 713216 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL ADVOCATE & MISS. VARSHA JALAN, ADVOCATE /BY RESPONDENT NONE /DATE OF HEARING 26-10-2015 /DATE OF PRONOUNCEMENT 06 -11-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-DURGAPUR IN APPEAL NO.240/CIT( A)/DGP/2011-12 DATED 15.10.2012. ASSESSMENT WAS FRAMED BY ITO WARD -1(2), DURGAPUR U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 26.12.2011 FOR ASSESSMENT YEAR 2009 -10. 2. AT THE TIME OF HEARING OF THIS APPEAL, NONE APPE ARED ON BEHALF OF REVENUE. THE LD. DR SOUGHT FOR THE BULK ADJOURNMENT IN 19 CASES BUT WE REJECTED THE ADJOURNMENT APPLICATION IN THOSE CASES WHERE WE FIND THAT THE HEARING CAN TAKE PLACE WITHOUT THE PRESENCE OF THE DR. SO WE DECIDED TO HEAR THIS CASE AND PROCEEDED AFTER SHRI SUBASH AGARWAL, LD. AUTHORIZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. ITA NO.47/KOL/2013 A.Y. 2009-10 M/S G.G.ENTERPRISE V. ITO WD-(2) DGP PAGE 2 AT THE OUTSET, IT WAS OBSERVED THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF ASSESSEE ON ACCOUNT OF LATE FILING. HOWEVER, BEFORE APPELLATE PROCEEDINGS LD AR DEMONSTRATED THAT DELAY IN FILING THE APPEAL WAS DUE TO ILL HEALTH OF THE ASSESSEE AND THE DELAY WAS MERELY FOR NINE DAYS. HO WEVER, LD. CIT(A) HAS REJECTED THE PLEA OF ASSESSEE ON THE GROUND THAT AS SESSEE IS A PARTNERSHIP FIRM AND BEING A LEGAL ENTITY CANNOT FELL ILL. THER EFORE, THE APPEAL WAS NOT ADMITTED AND DISMISSED FOR LATE FILING. 3. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE US. SHRI SUBASH AGARWAL AND MISS. VARSHA JALAN, LD. AUT HORIZED REPRESENTATIVES ARE APPEARING ON BEHALF OF ASSESSEE. 4. WE HAVE HEARD LD. AR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. BEFORE US LD. AR HAS PLEADED THAT ASSESSEE IS A PAR TNERSHIP FIRM AND THE PARTNER WHO WAS LOOKING AFTER THE TAXATION MATTER O F THE ASSESSEE-FIRM HAD FALLEN ILL AT THE TIME OF FILING OF THE APPEAL, THE REFORE THE APPEAL WAS FILED LATE AFTER THE DUE DATE. FURTHER, AR HAS SUBMITTED THAT AN AFFIDAVIT IN SUPPORT OF HIS CLAIM. FROM THE AFORESAID DISCUSSION, WE FIND THAT THERE WAS A DELAY IN FILING THE APPEAL ONLY JUST FOR NINE DAYS AND SAME APPEAL WAS REJECTED BY LD. CIT(A) ON THE GROUND THAT THE FIRM IS THE LEGAL ENTITY AND IT CANNOT FELL ILL. IN OUR VIEW, THE REASON GIVEN FOR REJECTION OF APPEAL IS NOT TEN ABLE. IT IS IMPORTANT TO UNDERSTAND THAT EVERY ORGANIZATION IS ALWAYS REPRES ENTED BY SOME HUMAN- BEING AND A HUMAN BEING CAN FALL ILL. SO IN THE PRE SENT CASE, ASSESSEE- COMPANY IS A PARTNERSHIP FIRM AND IT IS REPRESENTED BY ITS PARTNER AND PARTNER BEING HUMAN BEING CAN CERTAINLY FALL ILL. HOWEVER, LD. CIT(A) HAS NOT GONE INTO THE FACTS OF THE CASE AND JUST REJECTED THE CONDONA TION APPLICATION FOR LATE FILING OF APPEAL ON THE BASELESS GROUND. FURTHER, IF WE SE E THE LAW PROVIDES TO CONDONE THE DELAY, IF THE ASSESSEE WAS PREVENTED FR OM SUFFICIENT CAUSE FOR NOT PRESENTING HIS APPEAL WITHIN THE TIME LIMIT. A BARE READING OF SEC. 249 SUB- SECTION (III) READS AS UNDER:- 249 (1). ITA NO.47/KOL/2013 A.Y. 2009-10 M/S G.G.ENTERPRISE V. ITO WD-(2) DGP PAGE 3 (2) (3) [***] [COMMISSIONER (APPEALS) MAY ADMIT AN AP PEAL AFTER EXPIRATION OF THE SAID PERIOD IF HE IS SATISFIED THAT THE APPE LLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THE LD CIT(A) WAS TO ENSURE THAT WHETHER THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE TIME. IN THE INSTANT C ASE THE LD. CIT(A) IS TO ADJUDICATED THE MATTER ON MERIT AND NOT ON MERE TEC HNICALITY OF ACCEPTING OR REFUSING TO CONDONE THE DELAY BY A RIGID INTERPRETA TION / PROVISION FOR THE ACT. IN VIEW OF THE ABOVE, WE ARE INCLINED TO RESTORE THE F ILE TO LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE MATTER AFTER ADMITTING THE APPEAL ON THE BASIS OF AVAILABLE RECORDS AND INFORMATION. LD. CIT(A) HAS B EEN GIVEN POWER BY THE INCOME TAX ACT TO ADMIT THE APPEAL EVEN AFTER THE E XPIRATION OF THE TIME ALLOWED TO FILE THE APPEAL IF HE IS SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN TIME. SO ON THE BASIS OF ABOVE, WE RESTORE THE MATTER BEFORE LD. CIT(A) FOR FRESH ADJUDICATION IN TERMS OF LAW. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 06/ 11/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 06 /1 1 /2015 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S G.G.ENTERPRISE, ROOM.NO. 13, BLOCK-05, MAHAMAYA BAZAR DURGAPUR - 71320 7 2. /RESPONDENT-ITO, WARD-1(2) CITY CENTRE, PIN 713216 3. * +,- - . / CONCERNED CIT DURGAPUR 4. - - .- / CIT (A) DURGAPUR 5.01233+,, - +, , / DR, ITAT, KOLKATA 6.26789 / GUARD FILE. BY ORDER/ -, /TRUE COPY/ / - +, ,