Dr P.G.Paul, Cochin V. ACIT, Ernakulam

ITA 500/COCH/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65068 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANITHA SUMANTH
• Keywords: Reasonable cause

Judgement Text

1 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO.500/COCH/2009 - A.Y. 2002-03 I.T.A NO.501/COCH/2009 - A.Y. 2003-04 I.T.A NO.502/COCH/2009 - A.Y. 2004-05 I.T.A NO.369/COCH/2010 - A.Y. 2006-07 DR P.G. PAUL VS A.C.I.T., CENT.CIR.1 36/1919A ERNAKULAM SEBASTIAN ROAD, KOCHI-17 PAN : AFJPP4585P (APPELLANT) (RESPONDENT) APPELLANT BY : MS. ANITHA SUMANTH RESPONDENT BY : SHRI M ANIL KUMAR, CIT SMT. S VIJAYA PRABHA DATE OF HEARING : 05-12-2012 DATE OF PRONOUNCEMENT : 21-12-2012 O R D E R PER N.R.S. GANESAN (JM) ALL THE APPEALS OF THE TAXPAYER ARE DIRECTED AGAIN ST THE INDEPENDENT ORDERS OF C.I.T.(APPEALS), KOCHI FOR THE ASSESSMENT YEARS 2002-03, 2003-04, 2 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 2004-05 & 2006-07. SINCE COMMON ISSUE ARISES FOR C ONSIDERATION, ALL THE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. THERE IS A DELAY OF 275 DAYS IN FILING THE APPEA LS IN ITA NOS 500, 501 & 502/COCH/2009. SMT. ANITHA SUMANTH, THE LD.COUNS EL FOR THE TAXPAYER SUBMITTED THAT THE TAXPAYER IS A MEDICAL PROFESSION AL WORKING AS CONSULTANT AT VARIOUS HOSPITALS. FOR THE ASSESSMENT YEARS, 20 02-03, 2003-04 & 2004- 05 AFTER THE DISMISSAL OF THE APPEALS BY THE COMMIS SIONER OF INCOME-TAX(A), THE TAXPAYER INSTRUCTED HIS CHARTERED ACCOUNTANT TH AT THE TAXPAYER WAS READY TO PAY THE TAX; BUT STILL , APPEALS WERE TO B E PREFERRED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TAX(A) BEFORE THE TRIBUNAL. THIS WAS MISTAKEN BY THE CHARTERED ACCOUNTANT AS IF THE TAXP AYER WAS WILLING TO PAY THE DISPUTED TAX AND THEREFORE THERE WAS NO NEED TO FILE THE APPEALS. THE LD.COUNSEL FOR THE TAXPAYER SUBMITTED THAT THOUGH T HE TAXPAYER WAS READY TO PAY THE TAX, BUT HE NEVER INTENDED TO ACCEPT THE ORDERS OF THE COMMISSIONER OF INCOME-TAX(A). IT IS ONLY BECAUSE OF THE MISUNDERSTANDING OF THE INSTRUCTION BY THE CHARTERED ACCOUNTANT, THE TAXPAYER COULD NOT FILE THE APPEALS IN TIME. THE LD.COUNSEL SUBMITTED THAT THE DELAY THUS OCCURRED 3 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 WAS BEYOND THE CONTROL OF THE TAXPAYER. NO SOONER THE TAXPAYER CAME TO KNOW ABOUT THE NON FILING OF THE APPEALS, THAN THE TAXPAYER APPROACHED THE CHARTERED ACCOUNTANT AND PERSUADED HIM TO FILE THE APPEALS. THE LD.COUNSEL PLEADED THAT THE DELAY IN FILING THE APP EALS OCCURRED NOT AT THE BEHEST OF THE TAXPAYER BUT THAT OF THE CHARTERED AC COUNTANT AND THEREFORE, PRAYED THAT THE DELAY IN FILING THE APPEALS MAY BE CONDONED. 3. ON THE CONTRARY, SMT. S. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THERE WAS NO REASONABLE CAUSE ON THE PART OF THE TAXPAYER FOR NOT FILING THE APPEALS IN TIME. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT THAT THE INSTRUCTIONS OF THE TAXPAYER WERE MISUNDERSTOOD BY THE CHARTERED AC COUNTANT IS NOT IN DISPUTE. BECAUSE THE TAXPAYER WAS READY TO PAY THE TAX, IT WOULD NOT MEAN THAT THE TAXPAYER HAS AGREED WITH THE ORDER OF THE COMMISSIONER OF INCOME-TAX (A). EVEN AFTER PAYMENT OF TAX, THE TAX PAYER CAN ALWAYS CHALLENGE THE ORDER OF THE COMMISSIONER OF INCOME-T AX(A) BEFORE THE 4 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 APPROPRIATE FORUM. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUSE ON THE PART OF TH E TAXPAYER IN NOT FILING THE APPEALS IN TIME. ACCORDINGLY THE DELAY OF 275 DAYS IN FILING THE APPEALS IS CONDONED AND THE APPEALS OF THE TAXPAYER ARE ADM ITTED. 5. NOW COMING TO THE MERIT OF THE APPEALS, THE ONLY CONTENTION OF THE LD.COUNSEL FOR THE TAXPAYER SMT. ANITA SUMANTH IS T HAT THE COMMISSIONER OF INCOME-TAX(A) HAS NOT DISCUSSED ANYTHING IN THE IMP UGNED ORDERS. THE COMMISSIONER OF INCOME-TAX(A) SIMPLY AGREED WITH TH E ESTIMATION MADE BY THE ASSESSING OFFICER AND CONFIRMED THE ADDITION. ACCORDING TO THE LD.COUNSEL, THERE WAS NO INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH OPERATION. THEREFORE, THE LD.COUNSEL SUBMIT TED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE COMMISSIONER OF INCO ME-TAX(A) FOR RECONSIDERATION. 6. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SUB MITTED THAT THE TAXPAYER HAS NOT CO-OPERATED WITH THE COMMISSIONER OF INCOME-TAX(A) AND HE HAS NOT APPEARED BEFORE THE COMMISSIONER OF INCO ME-TAX(A). 5 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 THEREFORE, THE COMMISSIONER OF INCOME-TAX(A) CONFIR MED THE ORDERS OF THE ASSESSING OFFICER. ACCORDING TO THE LD.DR, THE COM MISSIONER OF INCOME- TAX(A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY T HE ASSESSING OFFICER. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE COMM ISSIONER OF INCOME- TAX(A) IS AN APPELLATE AUTHORITY EXERCISING QUASI JU DICIAL POWER UNDER THE PROVISIONS OF THE INCOME-TAX ACT. WHEN AN APPEAL I S FILED BEFORE THE COMMISSIONER OF INCOME-TAX(A) AGAINST THE ORDER OF ASSESSMENT THE COMMISSIONER OF INCOME-TAX(A) HAS TO NECESSARILY CA LL FOR THE RECORDS AND DISPOSE OF THE APPEAL ON MERIT IRRESPECTIVE OF THE FACT THAT THE TAXPAYER HAS APPEARED BEFORE THE COMMISSIONER OF INCOME-TAX(A) O R NOT. THE COMMISSIONER OF INCOME-TAX(A) IS BOUND TO PASS A SP EAKING ORDER BY RECORDING HIS OWN REASONS FOR CONFIRMING OR REVERSI NG THE ORDER OF THE ASSESSING OFFICER. IN THIS CASE, THE COMMISSIONER OF INCOME-TAX(A) HAS NOT PASSED ANY SPEAKING ORDER. THE COMMISSIONER OF INC OME-TAX(A) HAS SIMPLY SAID THAT THE ASSESSING OFFICER IS RIGHT AND JUSTIFI ED IN MAKING THE ADDITION. THE COMMISSIONER OF INCOME-TAX(A) HAS NOT APPLIED H IS MIND TO THE 6 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 MATERIALS AVAILABLE ON RECORD AND PASSED REASONED O RDERS. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RECONSIDERED BY THE COMMISSIONER OF INCOME-TAX(A). ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES FOR ALL THE FOUR AS SESSMENT YEARS ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A). THE COMMISSIONER OF INCOME-TAX(A ) SHALL RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF THE MATERIALS AVAILABL E ON RECORD AND THEREAFTER DISPOSE OF THE APPEALS ON MERIT AFTER GIVING REASON ABLE OPPORTUNITY TO THE TAXPAYER BY PASSING SPEAKING AND REASONED ORDERS. 8. WITH THE ABOVE OBSERVATIONS, ALL THE APPEALS OF THE TAXPAYER ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 21 ST DECEMBER, 2012 PK/- 7 ITA NO.369/COCH/2010 ITAS 500-502/COCH/2009 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH