Shri Shailesh Amrutlal Kotecha, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3), RAJKOT-GUJARAT

ITA 477/RJT/2013

• Counselvise Citation: 47724914 RSA 2013
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 04-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DR ADHIA
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO.477/RJT/2013 ASSESSMENT YEAR : 2005-06 SHAILESH AMRUTLAL KOTECHA, PROP. TELENET, 6-KANTA STRI VIKAS GRUH, DHEBAR ROAD, RAJKOT PAN : AGCPK 0930 F ( / APPELLANT) THE INCOME-TAX OFFICER, WARD 2(3), RAJKOT / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY SHRI M.K. SINGH, DR / DATE OF HEARING 18.06.2014 !'# / DATE OF PRONOUNCEMENT 20.06.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 04.06.2013 OF CIT(A)-III, RAJKOT REFUSING TO ADMIT THE APPEAL OF THE ASSESSEE FOR ADJUDICATION FOR THE ASSESSMENT YEAR 2005-06. 2. THE FACTS, IN BRIEF, ARE THAT, AGAINST THE ORDER U/S 271(1)(B) DATED 27.05.2011, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) IN FORM NO.35. IN THE IMPUGNED ORDER, THE LD. CIT(A) DISMISSED THE SAME AS UNADMIT TED ON THE GROUND THAT THE APPEAL MEMO IN FORM NO.35 IS NOT ACCOMPANIED BY ANY PETITION/LETTER FOR CONDONATION OF DELAY. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 3. IN THE GROUNDS OF APPEAL, THE ASSESSEE RAISED 10 GROUNDS OF APPEAL. THE GROUND NO.1 READS AS UNDER:- 1. THE CIT(A) HAS ERRED IN NOT GIVING ANY OPPORTUN ITY TO EXPLAIN THE DELAY IN FILING THE APPEAL BEFORE HIM AND STRAIGHT WAY DI SMISSING THE SAME ON FIRST HEARING ITSELF AND WITHOUT CONSIDERING MERITS OF TH E CASE AND SETTLED LAW. THE APPEAL NEEDS RESTORATION BACK TO HIM TO GIVE AN OPP ORTUNITY TO THE APPELLANT TO EXPLAIN THE DELAY AND TO CONSIDER THE MATTER ON MER ITS CONDONING THE DELAY. 2 477-RJT-2013 - SHAILESH AMRUTLAL KOTECHA-271(1)B) (SMC) 4. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D.R. ADHIA, AR, APPEARED AND FILED WRITTEN SUBMISSIONS, WHEREIN HE PLEADED THAT THE LD. CIT(A) FIXED THE APPEAL FOR HEARING ON 18.04.2013 AND DISMISSED THE APPEAL FOR NON-COMPLIANCE VIDE IMPUGNED ORDER DATED 04.06.2013. HE SUBMITTED THAT SINCE THE IMPUGNED ORDER WAS NOT PASSED ON THE DATE OF HEARING ITSELF, ON TH IS GROUND ALONE THE ORDER OF LD. CIT(A) BE SET ASIDE AND HE MAY BE DIRECTED TO DECID E THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW. ALTERNATIVELY, HE P LEADED THAT THE PENALTY LEVIED BE CANCELED AS THERE IS A REASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B AS DUE TO SEVERE ILLNESS OF FATHER OF THE ASSESSEE, THE AS SESSEE COULD NOT COMPLY WITH THE PENALTY NOTICES. HE FURTHER SUBMITTED THAT THE APP EAL FILED BEFORE THE LD. CIT(A) IS DEFECTIVE BECAUSE DUE TO OVERSIGHT THE APPLICATION FOR CONDONATION OF DELAY WAS NOT FILED. WHEN THE APPEAL IS DEFECTIVE, IT WAS DUTY OF THE LD. CIT(A) TO ALLOW THE OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT. S INCE THIS WAS NOT DONE, ON THIS GROUND ALONE THE ORDER OF LD. CIT(A) BE SET ASIDE A ND HE MAY BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING TH E ASSESSEE TO FURNISH A PETITION/APPLICATION FOR CONDONATION OF DELAY OF 27 DAYS. 5. ON THE OTHER HAND, SHRI M.K. SINGH, DR, APPEARED FOR THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). HE PO INTED OUT THAT IT WAS DUTY OF THE ASSESSEE TO FILE AN APPLICATION FOR CONDONATION OF DELAY ALONGWITH MEMORANDUM OF APPEAL AND SINCE THIS WAS NOT DONE, THE LD. CIT(A) IS HAVING NO OPTION BUT TO DISMISS THE APPEAL OF THE ASSESSEE AS UNADMITTED. 6. AFTER HEARING BOTH THE SIDES, I HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. PRIMA-FACIE, IT APPEARS THAT THE RE IS A DELAY OF 27 DAYS IN FILING THE APPEAL. THEREFORE, THE APPEAL FILED BY THE ASSESSEE WAS DEFECTIVE. WHEN THE APPEAL FILED BY THE ASSESSEE IS DEFECTIVE, IT IS DUTY OF T HE LD. CIT(A) TO ALLOW AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT. SINCE THIS OPPOR TUNITY WAS NOT ALLOWED, I SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND DIRECT H IM TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FILE A N APPLICATION REQUESTING FOR 3 477-RJT-2013 - SHAILESH AMRUTLAL KOTECHA-271(1)B) (SMC) CONDONATION OF DELAY OF 27 DAYS IN FILING THE APPEA L BEFORE THE LD. CIT(A) WHICH THE LD. CIT(A) WILL CONSIDER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 20.06.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- SHAILESH AMRUTLAL KOTECHA, PROP. TELE NET, 6-KANTA STRI VIKAS GRUH, DHEBAR ROAD, RAJKOT 2. / RESPONDENT- THE INCOME-TAX OFFICER, WARD 2(3), RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-III, RAJKOT 4. * * 2- / CIT(A)-III, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT