Mr. UMESH POREDDIWAR, Gadchiroli V. I.T.O.(tds) WARD -2, Chandrapur

ITA 478/NAG/2016

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2239 (ITAT-NAGPUR)
• Duration Of Justice: 5 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Keywords: Capital asset; Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SANDEEP GOSAIN, JM & SHRI ARUN KHODPIA, AM ITA No. 478/NAG/2016 Assessment Year: 2011-12 Shri Umesh Vasantrao Poreddiwar Rampuri Ward,Gadchiroli, Distt. Gadchiroli Vs. The ITO, Ward-2, Aaykar Bhawan Railway Station Road,Chandrapur PAN No.:ACHPP 6517 E Appellant Respondent Assessee by: Smt. Veena Agarwal (CA) Shri Abhisekh Kumar, Adv Revenue by :Smt. Agnes P Thomas (CIT-DR) Date of Hearing: 26/04/2022 Date of Pronouncement: 28 /06/2022 ORDER PER: SANDEEP GOSAIN, J.M. This appeal has been filed by the assessee against the order of the ld. CIT (A)-4, Nagpur dated 19/02/2016 passed u/s 143(3) of the Income Tax Act, 1961 for the A.Y. 2011-12 wherein the assessee has raised following grounds of appeal. ‘’1. That the AO erred in treating the sundry creditors under the head Butibori Land Parties as bogus. 2. That the AO erred in considering the loss on sale of capital asset as income from unexplained sources to the extent of Rs.12,00,00/-. 2 ITA No.478/NAG/2016 Shri Umesh Vasantrao Poreddiwar vs ITO, Ward 2, Chandrapur 3. The AO erred in disallowing the capital expenditure to the tune of Rs.37,96,325/-. 4. The AO erred in disallowing the interest amounting to Rs.52,505/- u/s 50(a)(ia) of the I.T. Act. 2.1 At the outset of the hearing of the appeal of the assessee, the Bench noted that there is delay of 105 days in filing the appeal by the assessee for which the ld. AR of the assesse filed a condonation application praying therein that the son of the assessee met with a life threatening road accident on 31-05- 2015 at Gadchiroli who was hospitalized at Neuron Hospital, Dhantoli. The Road accident led to multiple fractures and severe brain injury. After treatment for 45 days, the assessee was advised to take his son to Hinduja Hospital, Mahim Mumbai where open brain surgery took place. The assessee submitted the Medical Certificate of Hinduja National Hospital & Medical Research Centre, Mahim Mumbai. The ld. AR of the assessee further submitted that the son of the assessee was strictly advised bed rest by the Doctor who remained bed rest for 240 days. Conclusively, the ld. AR prayed the Bench to condone the delay of late filing of appeal because the son of the assessee had severe neuro problems and due to this the assessee could not file the appeal within due time for which the assessee filed an affidavit. 2.2 On the other hand, the ld. DR objected to such delay but left the matter on the Bench to consider it as deem fit and proper in the case. 3 ITA No.478/NAG/2016 Shri Umesh Vasantrao Poreddiwar vs ITO, Ward 2, Chandrapur 2.3 We have heard both the parties and perused the materials available on record. We find that the assessee is prevented by sufficient cause in not filing the appeal in time. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji, 167 ITR 471 observed as under:- ‘’The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression " sufficient cause " in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. "Every day's delay must be explained" does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay." Keeping in view the present facts and circumstances of the case, the application of the assessee for condonation of delay in filing the appeal is allowed. 3.1 Apropos the grounds of appeal of the assessee raised above, the Bench noted that the appeal of the assessee was dismissed by the ld. CIT(A) on the ground of non-appearance during the course of hearing. The relevant observation of the ld. CIT(A) is as under:- ‘’6. From perusal of the assessment order, it is clear that the AO has passed speaking order giving detailed reasoning for 4 ITA No.478/NAG/2016 Shri Umesh Vasantrao Poreddiwar vs ITO, Ward 2, Chandrapur additions made under each of the head. The appellant on the other hand has not filed any written submissions till date. The only thing that has been done by the appellant is seeking adjournments from time to time. The appellant has also not complied with the notices issued by this office on many occasions including the last notice where he was required to attend the proceedings on 11-02-2016. Accordingly, due to non-representation and non-filing of any written submission in support of grounds of appeal, the grounds of appeal filed by the appellant is hereby dismissed. 7. Accordingly, the appeal filed by the appellant is dismissed.’’ 3.2 We have heard both the parties and perused the materials available on record. From the available records, the Bench finds that the assessee neither appeared nor filed any documentary evidence in support of his contentions before the ld. CIT(A), because of severe illness of his son as mentioned above, who dismissed the appeal of the asssessee for non-appearance. In this situation, it becomes difficult for a common man to concentrate the other important issue when his son is seriously hospitalized for treatment. Therefore, we feel that the assessee should be given one more chance to contest the case before the ld. CIT(A). Hence, the appeal of the assessee is restored back to the file of the ld. CIT(A) for afresh adjudication by providing adequate opportunity of being heard to the assessee and the assessee will cooperate during the appellate proceedings before the ld. CIT(A) for adjudication of the case. Thus the appeal of the assessee is allowed for statistical purposes. 5 ITA No.478/NAG/2016 Shri Umesh Vasantrao Poreddiwar vs ITO, Ward 2, Chandrapur 4. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order Pronounced in the Open Court on 28 /06 /2022. Sd/- Sd/- (ARUN KHODPIA) (SANDEEP GOSAIN) Accountant Member Judicial Member Nagpur Dated:- 28/06/2022 *Mishra Copy of the order forwarded to: 1. The Appellant- Shri Umesh Vasantrao Poreddiwar, Gadchiroli. 2. The Respondent- M/s. SipnaShikshanPrakashanMandal, Amravati 3. CIT 4. The CIT(A) 5. DR, ITAT, Nagpur 6. Guard File (ITA No. 478/Nag/2016) By order, AR, ITAT, Nagpur