SUBHASH S. NADKARNI, MUMBAI V. ITO 17(2)(3), MUMBAI

ITA 4856/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 03-08-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 24-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: B V JHAVERI
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH BEFORE SHRI D.K.AGARWAL, JUDICIAL MEMBER & SHRI T.R.SOOD, ACCOUNTANT MEMBER I.T.A.NO.4856/MUM/2009 A.Y 2000-01 SHRI SUBHASH S. NADKARNI, 248, LEELA BAUG, TELANG ROAD, MATUNGA (CROISSANTS), MUMBAI 400 019. PAN: AADPN 9763 A VS. THE INCOME TAX OFFICER 17(2)(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.V.JHAVERI. RESPONDENT BY : SHRI S.K.SINGH. O R D E R PER T.R.SOOD, AM: THIS APPEAL IS LATE BY 98 DAYS. AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT HAS BEEN FILED. 2. THE LD. COUNSEL OF THE ASSESSEE REFERRED TO THE APPLICATION AND SUBMITTED THAT APPEAL WAS DUE TO BE FILED ON 18 TH MAY, 2009 AND THE ASSESSEE, WHO IS A SENIOR CITIZEN OF ABOUT 75 YEARS , AFTER HAVING DISCUSSED THIS ISSUE WITH HIS CHARTERED ACCOUNTANT, EVEN DEPOSITED THE TRIBUNAL FEE ON 2 ND MAY, 2009 AND HANDED OVER THE RELEVANT PAPERS AND CHALLANS TO THE CHARTERED ACCOUNTANT SHRI V.S. LALPURIA. IT SEEMS HE FILED THE APPEAL LATE AND THIS FACT CAME TO THE KNOWLEDGE OF THE ASSESSEE, WHEN ASSESSEE FURTHER RECEIVED RECOVERY N OTICE FROM THE DEPARTMENT ON 22-6-2009. THE ASSESSEE AGAIN TOOK UP THE MATTER WITH HIS C.A. WHO ULTIMATELY DID NOT SHOW MUCH INTEREST AND, THEREFORE, THE BRIEF WAS TAKEN FROM THE EARLIER C.A. AND ASSESSEE ENGAGED THE 2 SERVICES OF MR. DEVENDRA MEHTA OF M/S MEHTA, CHOKSH I & SHAH, CHARTERED ACCOUNTANTS, WHO ULTIMATELY FILED THE APP EAL. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THER E IS NO FAULT AT THE END OF THE ASSESSEE AND, THEREFORE, A LENIENT VIEW SHOULD BE TAKEN AND DELAY SHOULD BE CONDONED. 3. ON THE OTHER HAND, LD. DR OPPOSED THE SUBMISSION S OF THE LD. COUNSEL OF THE ASSESSEE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE SATISFIED THAT ASSESSEE HAD SUFFICIENT CAUSE FOR NOT FILING THE AP PEAL IN TIME. IN FACT, ASSESSEE HAD CLEARLY PAID THE TRIBUNAL FEE AND IF T HE CONCERNED CHARTERED ACCOUNTANT DOES NOT COOPERATE, THEN FAULT DOES NOT LIE WITH THE ASSESSEE. IN THIS BACK-GROUND WE CONDONE THE DE LAY. 5. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L. BEFORE US LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE APPE LLATE ORDER HAS BEEN PASSED ON EXPARTE BASIS BECAUSE THE C.A. APPEA RED ONLY IN TWO HEARINGS AND LATER ON DID NOT APPEAR EVEN BEFORE TH E CIT[A]. AS POINTED OUT ABOVE, THE CHARTERED ACCOUNTANT WAS NOT COOPERATING AND, THEREFORE, ASSESSEE DID NOT COME TO KNOW OF HIS NON APPEARANCE. HE AGAIN PRAYED THAT LENIENT VIEW MAY BE TAKEN AND THE MATTER IS RESTORED BACK TO THE FILE OF THE AO FOR EXAMINATION, AS CERT AIN FACTS ARE ALSO INVOLVED. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF THE CIT[A]. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE AGAIN SATISFIED THAT NON REPRESENTATION BEFORE THE LD. CIT[A] WAS O N ACCOUNT OF NON 3 COOPERATION OF THE CHARTERED ACCOUNTANT. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT[A] AND REMIT THE MATTER BACK T O THE FILE OF THE AO FOR RE-EXAMINATION OF THE ISSUE AFTER PROVIDING ADE QUATE OPPORTUNITY TO THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY, 2011. SD/- SD/- (D.K.AGARWAL) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28 TH JANUARY, 2011. P/-*