BHAWANI SINGH JADON, Jaipur V. ITO, Jaipur

ITA 489/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5086 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: R P JAT
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 489/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. SHRI BHAWANI SINGH JADON 49, ARUN VIHAR, SHUBHAM APARTMENT, NIWARU ROAD, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AEHPJ 2159 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI R.P. JAT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.07.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20/07/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS)- I, JAIPUR DATED 31.10.2013 PERTAINING TO ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF IN COME TAX ACT, 1961 AMOUNTING TO RS. 9,58,110/- OUT OF THE PENALTY AMOU NTING TO RS 17,98,265/- IMPOSED BY THE LD. AO. THE ACTION OF THE LD. CIT (A ) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE PENALTY OF RS. 9,58,110/-. 2. THE PRESENT APPEAL IS DELAYED BY 179 DAYS. THE A SSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY AND IN SUPPORT FURNISHED A FFIDAVIT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING OF APPE AL IS NOT DELIBERATE OR NOT WITH AN 2 ITA NO. 489/JP/2014 BHAWANI SINGH JADON VS. ITO OBJECTIVE TO ESCAPE FROM THE TAX LIABILITY BUT THE DELAY IS ON ACCOUNT OF REASONABLE CAUSE AS THE DAUGHTER OF THE ASSESSEE HAS BEEN SUFF ERING FROM EPILEPSY SINCE HER CHILDHOOD AND HER AILMENT AGGRAVATED DURING THE PER IOD NOVEMBER, 2013. SINCE THE ASSESSEE WAS MENTALLY DISTURBED AND DEEPLY INVOLVED IN THE TREATMENT OF HIS DAUGHTER, HE COULD NOT FILE APPEAL IN TIME. 2.1. ON THE CONTRARY, THE LD. D/R HAS OPPOSED THE S UBMISSIONS AND SUBMITTED THAT AILMENT OF DAUGHTER IS NOT A REASONABLE CAUSE. THE ASSESSEE HAD SUFFICIENT TIME TO APPROACH THE AUTHORIZED REPRESENTATIVE FOR FILING O F THE APPEAL IN TIME. 2.2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL ON RECORD. THE ASSESSEE HAS PLACED ON RECORD MEDICAL EVIDENCES IN RESPECT OF THE AILMENT OF THE DAUGHTER OF THE ASSESSEE. THE REVENUE HAS NOT PLAC ED ON RECORD ANY EVIDENCE SUGGESTING THAT THE ACT OF FILING OF APPEAL LATE IS WITH AN INTENTION TO CAUSE PREJUDICE TO THE REVENUE. THE HONBLE SUPREME COURT IN THE C ASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI, 167 ITR 471 HAS HELD T HAT LIBERAL APPROACH IN CONDONATION OF DELAY MAY BE ADOPTED. THE RELEVANT PORTION OF TH E ORDER IS REPRODUCED BELOW :- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING S. 5 OF THE LIMITATION ACT OF 1963 IN ORDE R TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISP OSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOY ED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB-SERVES THE ENDS OF JUST ICE THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTIO N OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COUR T. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPL E AS IT IS REALIZED THAT :- 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 3 ITA NO. 489/JP/2014 BHAWANI SINGH JADON VS. ITO 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIO US MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU RS DELAY, EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO NS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON DELIBERATE DE LAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DE LIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUND S BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE SUPREME COURT, WE HEREBY CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. IN RESPECT OF THE MERITS OF THE CASE, THE LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE COORDINATE BENCH OF THE TRIBUNAL IN ITA NO. 1021/JP/2013 PERTAINING TO ASSESSMENT YEAR 2009-10 IN QUANTUM PROCEEDINGS HAS SET ASIDE THE ORDER OF LD. CIT (A) AND DIRECTED TO FRAME ASSESSMENT AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. THEREFORE, HE URGED THAT THE ORDER OF LD. CIT (A) CONFIRMING THE LEVY OF PENALTY BE ALSO SET ASIDE TO BE MADE AFRESH AS PER THE DIRECTIONS GIVEN IN THE QUANTUM O RDER. THE LD. COUNSEL PLACED ON RECORD THE COPY OF THE ORDER PASSED BY THE COORDINA TE BENCH DATED 09-10-2015 PASSED IN ITA NO. 1021/JP/2013 FOR THE A.Y. 2009-10 . 4 ITA NO. 489/JP/2014 BHAWANI SINGH JADON VS. ITO 3.1. THE LD. D/R HAS CONCEDED THE FACT OF SETTING A SIDE OF THE QUANTUM PROCEEDINGS. 3.2. AFTER CONSIDERING THE RIVAL CONTENTIONS AND PE RUSING THE MATERIAL AVAILABLE ON RECORD, THE IMPUGNED ORDER IS SET ASIDE AND THE ISS UE OF LEVY OF PENALTY IS RESTORED TO THE FILE OF THE AO TO DECIDE AFRESH ALONG WITH T HE QUANTUM ASSESSMENT. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/07/2016 . SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 20/07/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI BHAWANI SINGH JADON, JAIPUR . 2. THE RESPONDENT- THE INCOME TAX OFFICER, WARD 3(1 ), JAIPUR. 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 489/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 489/JP/2014 BHAWANI SINGH JADON VS. ITO