Junagadh Mahila Sharafi Mandali Ltd., RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(2), JUNAGADH

ITA 498/RJT/2013

• Counselvise Citation: 49824914 RSA 2013
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI
• Assessee Lawyers: DR ADHIA
• Keywords: Principle of natural justice; Bonafide belief; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 498/RJT/2013 ASSESSMENT YEAR : 2010-11 JUNAGADH MAHILA SHARAFI MANDALI LTD., OPP. S.T. STAND, J.B. COMPLEX, S.T. ROAD, JUNAGADH PAN : AAAAJ 0403 D ( / APPELLANT) THE I.T.O., WARD 1(2), JUNAGADH / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY DR. JAYANT B. JHAVERI, DR / DATE OF HEARING 23.12.2013 !'# / DATE OF PRONOUNCEMENT 31.12.2013 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D ATED 12.09.2013 OF CIT(A)-IV, RAJKOT IN APPEAL NO.CIT(A)-IV/0005/13- 14 FOR THE ASSESSMENT YEAR 2010-11. 2. THE FACTS, IN BRIEF, ARE THAT IN THE IMPUGNED OR DER THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR THE DETAILED REASON GIVE N IN PARAGRAPH NOS. 2 TO 4 WHICH READ AS UNDER:- 2. IN THIS CASE, ON VERIFICATION OF APPEAL ADMISSI BILITY REPORT RECEIVED FROM THE ASSESSING OFFICER, IT IS NOTICED THAT THE NOTIC E OF DEMAND WAS SERVED ON 18/02/2013, WHEREAS IN THE APPEAL MEMO FILED BY THE APPELLANT IN FORM NO.35, IT IS MENTIONED INCORRECT IN COL. NO.7 THAT THE NOT ICE OF DEMAND WAS SERVED ON 05/03/2013 WHEREAS THE APPEAL WAS FILED BY THE APPE LLANT ON 01-04-2013. THUS AS PER APPEAL ADMISSIBILITY REPORT, THERE IS D ELAY OF 11 DAYS IN FILING APPEAL. IT IS NOTICED THAT THE APPEAL MEMO IN FORM NO.35 IS NOT ACCOMPANIED BY ANY PETITION/LETTER FOR CONDONATION OF DELAY. 3. AS PER THE APPEAL ADMISSIBILITY REPORT, THE DELA Y IN FILING OF APPEAL IS SUBSTANTIAL, WHICH IS ABOUT 11 DAYS IN THE CASE. TH E DATE OF SERVICE OF RELEVANT NOTICE OF DEMAND AS PER THE APPEAL MEMO IS 18-2-201 3, WHEREAS THE APPEAL IS FILED ON 01-04-2013. FURTHER, THE APPELLANT HAS FURNISHED WILLFULLY INCORRECT INFORMATION WITH REGARD TO DATE OF SERVICE OF THE N OTICE OF DEMAND AS 5-3-2013 INSTEAD OF 18-2-2013. NO REASONS WERE ASCRIBED FOR DELAY. THEREFORE, THERE IS NO REASONABLE CAUSE ON THE PART OF THE APPELLANT FO R DELAY IN FILING APPEAL. HENCE THE APPEAL IS HEREBY NOT ADMITTED FOR ADJUDIC ATION. 4. IN THE RESULT, THE APPEAL IS TAKEN AS DISMISSED FOR STATISTICAL PURPOSES. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE ASSESS EE IS NOW IN APPEAL BEFORE THIS TRIBUNAL, ON THE FOLLOWING GROUNDS:- 2 498-RJT-2013 - JUNAGADH MAHILA SHARAFI MANDALI LTD. (SMC) 1. THE LD. CIT(A) HAS ERRED IN NOT GIVING ANY OPPO RTUNITY TO EXPLAIN THE DELAY FOR 11 DAYS IN FILING OF APPEAL BEFORE HIM NO T CONSIDERING THE SETTLED LAW THAT AN OPPORTUNITY MUST BE GIVEN. THE ORDER PASSED BY HIM NEEDS CANCELLATION. 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.92,855/-. THE ADDITION NEEDS DELETION. 3. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.92,855/- STATING THAT INTEREST FROM STATE BANK O F INDIA IS NOT ALLOWABLE. THE ADDITION NEEDS DELETION. 4. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.92,855/- ON THE GROUNDS THAT INTEREST INCOME IS NOT COVERED WITHIN THE MEANING OF THE TERM ACTIVITIES. THE ADDITION NEEDS DELETION. 5. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECT, NO ADDITION / DISALLOWANCE OF AMOUNT OF RS. 92,855/- OUGHT TO HAVE BEEN MADE. THE ADDITION / DISALLOWANCE NEEDS DELETI ON. 6. WITHOUT PREJUDICE, THE ASSESSMENT MADE IS BAD IN LAW AND DESERVES ANNULMENT. 7. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND R EASONABLE OPPORTUNITY HAS BEEN PROVIDED. THE ASSESSMENT NEEDS ANNULMENT. 8. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AN D/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKE S PLACE. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E SHRI D.R. ADHIA, AR APPEARED AND POINTED OUT THAT IN THE IMPUGNED ORDER THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING AN OPPORTUNIT Y TO EXPLAIN THE DELAY OF 11 DAYS IN FILING THE APPEAL BEFORE HIM. THE AUTHORIZED REP RESENTATIVE OF THE ASSESSEE POINTED OUT THAT IF THE APPEAL FILED BY THE ASSESSE E WAS DEFECTIVE; IT WAS THE DUTY OF THE LD. CIT(A) TO POINT OUT THE DEFECT SO THAT ASSE SSEE CAN REMOVE THE SAME. SINCE THIS WAS NOT DONE IN THE PRESENT CASE, THE IMPUGNED ORDER OF LD. CIT(A) BE SET ASIDE AND HE MAY BE DIRECTED TO ALLOW AN OPPORTUNITY TO T HE ASSESSEE TO RECTIFY THE DEFECT AND THEREAFTER DECIDE THE APPEAL OF THE ASSESSEE AF RESH IN ACCORDANCE WITH LAW. 4. DR. JAYANT B. JHAVERI, DR, APPEARED ON BEHALF OF THE REVENUE, COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS MADE BY THE LD . AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 5. AFTER HEARING BOTH SIDES, I HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT FORM NO.35 WAS NOT ACCO MPANIED BY ANY PETITION/LETTER FOR CONDONATION OF DELAY. PRIMA-FACIE IT APPEARS T HAT THE ASSESSEE WAS ON THE 3 498-RJT-2013 - JUNAGADH MAHILA SHARAFI MANDALI LTD. (SMC) BONAFIDE BELIEF THAT THERE IS NO DELAY IN FILING TH E APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) CALLED THE REMAND REPORT FROM THE ASSESSING OFFICER AND THE SAID REMAND REPORT WAS NOT CONFRONTED TO THE ASSESSEE. THIS AC TION OF LD. CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. IN THIS VIEW OF THE M ATTER, I SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND DIRECT HIM TO CONFRONT THE ASSESS EE WITH THE REPORT OF THE ASSESSING OFFICER AND THEREAFTER DECIDE THE APPEAL OF THE ASS ESSEE AFRESH AFTER CONSIDERING THE OBJECTIONS OF THE ASSESSEE. IF IN FACT THERE IS A D ELAY, AN OPPORTUNITY SHOULD ALSO BE ALLOWED TO THE ASSESSEE TO FILE THE APPLICATION FOR CONDONATION OF DELAY OF 11 DAYS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 31.12.2013 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- JUNAGADH MAHILA SHARAFI MANDALI LTD., OPP. S.T. STAND, J.B. COMPLEX, S.T. ROAD, JUNAGADH 2. / RESPONDENT- THE I.T.O.,WARD 1(2), JUNAGADH 3. ,0,1 * * 2 / CONCERNED CIT-III, RAJKOT 4. * * 2- / CIT (A)-IV, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT