Sri. K..Mohammed Basheer, Pathanamthitta V. ACIT, Kottayam

ITA 50/COCH/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7465 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 22-11-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 01-02-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND SANJAY AROR A, AM I.T.A NO. 50/COCH/2010 ASSESSMENT YEAR: 1997-98 K.M.MUHAMMED BASHEER, VELLATHARAYIL HARDWARES, CHITTAR P.O., PATHANAMTHITTA. [PAN: AAACT 7597G] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. (ASSESSEE-APPELLANT) (REVENUE-RESP ONDENT) ASSESSEE BY SHRI R.SREENIVASAN, CA REVENUE BY MS. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 22/11/2011 DATE OF PRONOUNCEMENT 25/01/2012 O R D E R PER SANJAY ARORA, AM: THIS APPEAL BY THE ASSESSEE CONTESTS THE APPELLATE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOCHI (CIT(A) FOR SHORT) DATED 11-11-2009 DISMISSING IN LIMINE HIS APPEAL CONTESTING THE LEVY OF PENALTY U/S. 271 B OF THE INCOME-TAX ACT, 1961 ('THE ACT' HEREINAFTER) AT ` 48,372/- VIDE ORDER DATED 26-03-2009; THE ASSESSMEN T YEAR (A.Y.) UNDER REFERENCE BEING 1997-98. 2. THE IMPUGNED APPEAL IS DELAYED BY A PERIOD OF 3 DAYS. THE CONDONATION PETITION FILED SUBSEQUENTLY EXPLAINS THE REASON THEREFOR IN TERMS OF THE ASSESSEES PHYSICAL AND MENTAL INCAPACITATION, BEING A PATIENT SUFFERING FR OM ACUTE CERVICAL DISC PROLAPSE WITH C6-7 RADIOCULOPATHY, HAVING BEEN ADVISED COMPLETE B ED REST. THE DELAY, IN OUR OPINION, IS, THUS, CAUSED FOR SUFFICIENT REASONS, AND ACCORD INGLY CONDONED AND, CONSEQUENTLY, THE APPEAL WAS ADMITTED, AND THE HEARING PROCEEDED WITH . I.T.A. NO. 50/COCH/2010 K.M. MUHAMMED BASHEER VS. ACIT, KOTTAYAM 2 3.1 ON MERITS, WE OBSERVE THAT THOUGH THE ASSESSEE IMPUGNS THE LEVY OF PENALTY (VIDE HIS GROUND NOS. 3, 4 & 5), THE SAME IS NOT MAINTAIN ABLE. THIS IS AS THERE IS NO ORDER BY THE FIRST APPELLATE AUTHORITY THEREON; HE NOT DECID ING THE APPEAL BEFORE HIM, CONTESTING THE SAID LEVY, ON MERITS. THIS IS AS THE SAME WAS HELD BY HIM AS NOT MAINTAINABLE, HAVING BEEN FILED BEYOND THE TIME PRESCRIBED THEREFOR U/S. 249(2) OF THE ACT. AS SUCH, IT IS ONLY THE ASSESSEES GROUND NOS. 1 & 2, ASSAILING THE NON -CONDONATION OF THE DELAY BY THE LD. CIT(A) WITH REFERENCE TO S. 249(2), THAT ARISES FOR CONSIDERATION AND ADJUDICATION BY US. TOWARD THIS, WE FIND THAT THE FIRST APPELLATE AUTHO RITY HAS REJECTED THE ASSESSEES PLEA FOR CONDONATION OF DELAY FOR 75 DAYS AFTER REPRODUCING THE ASSESSEES EXPLANATION AT PARA 1 OF HIS ORDER, BY STATING AS UNDER:- 2.1 I HAVE CAREFULLY EXAMINED THE MATTER. THE FA CTS AS NARRATED ABOVE CLEARLY SHOW THAT THE APPELLANT WAS DISCHARGED FROM HOSPIT AL ON 20.03.2009 WELL BEFORE THE DATE OF SERVICE OF ORDER ON HIM I.E. 29.03.200 9. IN THE PETITION THE DELAY UP TO THE SECOND WEEK OF MAY, 2009 ONLY IS EXPLAINED. T HERE IS NO EXPLANATION FOR FURTHER DELAY FROM SECOND WEEK OF MAY TO 13.07.200 9. IN VIEW OF THE ABOVE, IT IS HELD THAT THE APPELLANT DID NOT HAVE SUFFICIENT CA USE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD ALLOWED U/S. 249(2). IT IS HELD THAT THIS APPEAL IS BARRED BY LIMITATION, HENCE IS DISMISSED WITHOUT ADMISSION. CLEARLY, THE PRIMARY FACTS ARE NOT DISPUTED; THE DA TE OF COMMUNICATION OF THE ORDER APPEALED AGAINST AND THE DATE OF FILING OF THE APPEAL, ARE 29.03.2009 AND 13.7.2009 , I.E., AT A DELAY OF IN FACT 76 DAYS. THE REASON FOR THE NON- CONDONATION OF THE ADMITTED DELAY IS THAT THE ASSESSEE STOOD IN FACT DISCHARGED FROM THE HOSPITAL ON 20.03.2009, I.E., EVEN BEFORE THE SERVICE OF THE IMPUGNED ORDER ON HIM AND , IN ANY CASE, THERE IS NO EXPLANATION FOR THE DELAY FOR THE PERIOD AFTER THE SECOND WEEK OF MAY, 2009, WHEREAT THE PAPERS WERE HANDED OVER TO THE COUNSEL FOR THE PREPARATION OF T HE APPEAL. 3.2 IT IS ADMITTED THAT THE ASSESSEE IS SUFFERI NG FROM AN ACUTE AILMENT, REQUIRING HIM TO BE HOSPITALISED AND UNDER CONSTANT MEDICAL TREATMEN T/SUPERVISION, ALSO ENTAILING COMPLETE BED REST. WE STATE SO AS THE REVENUE HAS NOWHERE DI SPUTED THIS POSITION OR STATE OF AFFAIRS. THE PHYSICAL AND MENTAL STRESS ACCOMPANYING SUCH AI LMENT CANNOT BE OVEREMPHASIZED. I.T.A. NO. 50/COCH/2010 K.M. MUHAMMED BASHEER VS. ACIT, KOTTAYAM 3 HOWEVER, DESPITE SUCH SEVERE CONSTRAINTS, THE ASSES SEE MADE EFFORTS TO CONTACT HIS COUNSEL FOR PURSUING HIS TAX MATTERS, WHEN POSSIBLE FOR HIM TO DO SO. IN FACT, AS STATED, IN VIEW OF THE PECULIAR CIRCUMSTANCES, THE COUNSEL (BASED AT A LLEPPEY), ON REQUEST, COLLECTED THE PAPERS FROM THE ASSESSEES HOUSE (LOCATED AT A DIST ANCE FROM THE ASSESSEES HOUSE). THE SAME EXHIBITS COMPLETE ABSENCE OF ANY MALA FIDES ; RATHER, ESTABLISHING THE ASSESSEES BONA FIDES , WHICH WE OBSERVE HAVE NOT BEEN DOUBTED BY THE REV ENUE. HOWEVER, THE LD. CIT(A) FOUND THAT THERE WAS NO EXPLANATION FOR THE DELAY AFTER THE SECOND WEEK OF MAY 2009; THE APPEAL HAVING BEEN FILED ONLY ON 13.7.200 9. IN THIS RESPECT, IN OUR VIEW, IT IS FIRSTLY UNREASONABLE TO ASSUME OR EXPECT THAT THE A PPEAL PAPERS WOULD BE PREPARED IN NO TIME, I.E., ALLOWANCE FOR A REASONABLE TIME FOR THE SAME HAS TO BE GIVEN. NO DOUBT, THE APPEAL PAPERS SHOULD HAVE BEEN PREPARED BY THE COUN SEL WITH ALACRITY; THE ACT ITSELF PROVIDING A MAXIMUM TIME PERIOD OF SIXTY DAYS FOR T HE PURPOSE. SO, HOWEVER, THE QUESTION THAT ARISES IS: WHETHER THE ASSESSEE COULD BE PENALISED FOR THE DELAY ATTRIBUTABLE TO THE ABSENCE OF PROMPT ACTION BY HIS COUNSEL, PAR TICULARLY WHEN HE IS UNABLE TO PURSUE THE MATTER WITH HIM, MUCH LESS, VIGOROUSLY. THOUGH THE COUNSEL ACTS ONLY FOR AND ON BEHALF OF HIS CLIENT, EFFECTIVELY BINDING HIM, THE QUESTION IS: COULD HIS ACTIONS, OVER WHICH THE ASSESSEE HAS NO CONTROL, PARTICULARLY IN THE MATTER OF PROCEDURE, WHEN OPERATING TO PREJUDICE THE ASSESSEE, BE ALLOWED TO DO SO ? IN OUR VIEW, THE ANSWER, UNDER THE FACTS AND CIRCUMSTANCES AS WE FIND IN THE INSTA NT CASE, WHEN THE ASSESSEES PHYSICAL CONDITION MADE EVEN THE MERE COMMUNICATION WITH HIS COUNSEL A RESULT OF A HUGE EFFORT ON HIS PART, CAN ONLY BE AN EMPHATIC NO. THIS IS AS AT THE MAXIMUM, IT WOULD ALLOW CONSIDERATION OF THE ASSESSEES CASE ON MERITS, I.E ., AS AGAINST BEING OUSTED AT THE THRESHOLD. THIS, OF COURSE, CANNOT BE ALLOWED TO BE USED AS AN ALIBI , BUT WE HAVE ALREADY NOTED THE ABSENCE OF ANY MALA FIDES . THE ASSESSEE MAY THEREFORE BE CONSIDERED AS ENTIT LED TO BE HEARD ON MERITS, HAVING IN FACT BEEN UNREPRES ENTED EVEN BEFORE THE ASSESSING OFFICER (AO), SO THAT THERE HAS BEEN NO REPRESENTAT ION BY HIM AT ANY STAGE. WE HAVE, IN OUR ADJUDICATION, DERIVED SUPPORT FROM THE DECISION BY THE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. (1987) 167 ITR 471 (SC) AS WELL AS IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD. VS. NIRMALA DEV I (SMT.) & ORS .(1979) 118 ITR 507 (SC). I.T.A. NO. 50/COCH/2010 K.M. MUHAMMED BASHEER VS. ACIT, KOTTAYAM 4 3.3 THE MATTER WOULD RESULTANTLY GO BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE ASSESSEES GROUND NOS. 1 TO 2 BEFORE HIM, I.E., ON MERITS, IN ACCORDANCE WITH LAW, AND AFTER HEARING BOTH THE PARTIES BEFORE HIM. WE DECID E ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 25TH JANUARY, 2012 GJ COPY TO: 1. SHRI K.M.MUHAMMED BASHEER, VELLATHARAYIL HARDWAR ES, CHITTAR P.O., PATHANAMTHITTA. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, KOTTAYAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE . BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN BENCH