Saroj Chaudhary, MOUNT ABU V. ITO, MOUNT ABU

ITA 507/JODH/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9646 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Assessee Lawyers: T C GUPTA
• Keywords: Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NOS.506/JODH/2015 & ITA NO. 266/JODHPUR/2016 ASSESSMENT YEAR: 20 08 - 09 SHRI RAVINDRA CHAUDHARY VS. THE ITO DHUNDHAI, MOUNT ABU MOUNT ABU PAN NO. AANPC06772 & ITA NOS.507/JODH/2015 & ITA NO. 267/JODHPUR/2016 ASSESSMENT YEAR: 20 08 - 09 SMT SAROJ CHAUDHARY VS. THE ITO DHUNDHAI, MOUNT ABU MOUNT ABU PAN NO. AANPC0678F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. T.C. GUPTA RESPOND ENT BY : SH. S.K. MEENA DATE OF HEARING : 0 2 /0 3 /2017 DATE OF PRONOUNCEMENT : 03/03/2017 ORDER THESE FOUR APPEALS FILED BY THE ASSESSEE ARE BEING DECIDED BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE , I N VIEW OF THE FACT THAT PRAYER OF THE PARTIES W HO ARE HUSBAND AND WIFE ON IDENTICAL FACTS AND GROUNDS REMAIN THE SAME. 2. LD. AR AT THE TIME OF HEARING MADE ARGUMENTS REFERRING TO ITA NO. 506/JODHPUR/2015 STATING THAT THEY WOULD REMAIN THE SAME IN ITA NO. 507/JODHPUR/2015 WHICH PERTAINS TO THE WIFE OF THE ASSESSEE IN ITA NO. 5 06/JODHPUR/2015. THE CHALLENGE IN BOTH THE APPEALS PERTAINING TO 2008 - 09 ASSESSMENT YEAR ARE AGAINST THE IDENTICAL SEPARATE ORDERS DT. 19 - 11 - 2012 OF THE 2 LD. CIT(A) JODHPUR. FOR READY REFERENCE GROUNDS IN ITA NO. 506/JODHPUR/2015 AR E REPRODUCED HEREUNDER: 1. THE COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE APPELLATE ORDER WAS NEVER SERVED ON THE ASSESSEE. 2.1 . I NVITING A TTENTION TO THE IMPUGNED ORDER IT WAS SUBMITTED THAT COPY OF THE SAID ORDER WAS N EVER RECEIVED BY THE ASSESSEE. IN SUPPORT OF THE SAID PRAYER ATTENTION WAS INVITED TO APPLICATION FOR CONDONATION OF DELAY IN THE PRESENT APPEAL SUPPORTED BY AN AFFIDAVIT DT. 19/11/2015 WHICH HAS BEEN FILED IN SUPPORT OF THE DEFECT POINTED OUT BY THE REGISTRY WHICH HA S INTIMATED THAT COLUMN 7 IN THE MEMO APPEAL HAS NOT BEEN FILLED BY THE ASSESSEE. A CCORDINGLY IT WAS HIS SUBMISSION THAT AS A RESULT OF THIS IN ANTICIPATION OF THE DEFECT CONDONATION OF DELAY PETITION HAS BEEN FILED. THE SAID APPLICATION SUPPORTED BY AN AFFIDAVIT IT WAS SUBMITTED WOULD ADDRESS THE FACT AS TO WHY ON THE DATES THE APPEAL WAS FIXED FOR THE HUSBAND AS WELL AS HIS WIFE BEFORE THE LD. CIT(A) THE ASSESSEE REMAINED UNREPRESENTED AND ALSO THE DEFECT POINTED OUT BY THE R EGISTRY. THE IMPUGNED ORDER IT WAS STATED WAS AN EX - PARTE ORDER DISMISSING THE ASSESSEES APPEAL . READING FROM THE CONDONATION OF DELAY PETITION ATTENTION WAS INVITED TO THE FOLLOWING FACTS PLACED IN THE APPLICATION : 1. THE APPLICANT WAS NEVER COMMUNICATED OR SERVED APPELLATE ORDER NO. 402/2010 - 2011 DATED 19 - 11 - 2012 OF THE CIT (A) - I, JODHPUR, FOR A.Y. 2008 - 09. AN AFFIDAVIT ON OATH IS ENCLOSED. 2. NOTWITHSTANDING TO THE ABOVE PARA 1, THE CIT (A) OFFICE TOLD THAT THE APPELLATE ORDER WAS SENT BY POST TO THE ASSESSE E AND HIS WIFE SMT. SAROJ CHAUDHARY (BOTH ORDERS) IN ONE ENVELOPE AT HIS LAST ADDRESS, HOWEVER, THIS ENVELOP WAS NEVER RECEIVED BY ANY FAMILY MEMBER OF THE ASSESSEE OR HIS WIFE AND WAS NEVER COMMUNICATED TO THEM. STILL IF TECHNICALLY THIS GROUND IS NOT ACC EPTED, THE FOLLOWING CIRCUMSTANCES WERE CAUSE AND REASON FOR THE DELAY IN FILING THE APPEAL. 3. THE ASSESSEES FATHER IS CONTINUOUSLY ILL FOR THE LAST FOUR YEARS. FOR HIS TREATMENT HE IS REQUIRED LONG STAYS AT JAIPUR AND DELHI. HE RARELY GOES TO MOUNT ABU. I N THE PROCESS THEY GOT HEAVY LOSSES IN BUSINESS . 4. HER FAMILY LIFE ALSO GOT STRANDRED DUE TO LOSSES AND ILLNESS. THE COUPLE HAD TO LEAVE SEPARATELY FOR MOST OF THE TIME. THEY COULD NOT PROPERLY DISCUSS THE INCOME - TAX MATTERS 3 WITH THEIR COUNSEL PROPERLY . THE IR COUNSEL ALSO DID NOT GIVE THEM PROPER ADVICE IN THE MATTER. EVEN, THE INCOME - TAX DEPARTMENT HAS LEVIED PENALTY OF CONCEALMENT AND FILED PROSECUTION AGAINST THEM FOR THEIR UN ABILITY TO PROPERLY HANDLE THE TAX MATTERS. WHO THE FOOL WILL NOT FILE APPEAL I N THE WAKE OF CONCEALMENT PENALTY AND PROSECUTION. THUS THE ASSESSEES WERE HARD PRESSED OF THEIR ADVERSE CIRCUMSTANCES. 5. IN THIS CASE NON - INTERFERENCE OF THE HONBLE TRIBUNAL WOULD CAUSE GRAVE INJUSTICE TO THE ASSESSEE. FURTHER, THE CONDONATION OF DELAY IS NOT GOING TO PREJUDICIALLY AFFECT THE RIGHTS AND CLAIMS OF THE OPPOSITE PARTY. (EMPHASIS PROVIDED) 2.2 . READING FROM THE AFFIDAVIT FILED IT WAS SUBMITTED THAT THE IMPUGNED ORDER WAS NEVER COMMUNICATE OR SERVED UPON THE ASSESSEE AND IT IS ONLY WHEN TRO J ODHPUR CALLED FOR PAYMENT OF DEMAND THAT T HE ASSESSEE BECAME AWARE AND THE COPY OF THE ORDER WAS SOUGHT THROUGH HIS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. I NVITING ATTENTION TO THE APPEAL OF THE WIFE OF THE ASSESSEE IT WAS SUBMITTED THAT FOR SIMILAR RE ASONS THE WIFE ALSO REMAINED UNREPRESENTED. ELABORATING THE REASONS IT WAS SUBMITTED THAT ON ACCOUNT OF A CONTINUOUS ILLNESS OF THE FATHER OF THE ASSESSEE THE VISIT S TO MOUNT ABU WERE VERY RARE AND AS A RESULT EVEN HIS BUSINESS HA S SUFFERED DUE TO LONG STA YS AT JAIPUR AND DELHI DUE TO THE TREATMENT OF THE FATHER WHICH DID NOT PERMIT THE ASSESSEE TO EVEN TAKE OUT TIME TO CONSULT HIS LAWYER LOOKING INTO THE TAX MATTERS. ACCORDINGLY IT WAS ALSO HIS SUBMISSION THAT EVEN DURING THE ASSESSMENT STAGE THE ASSESSEE REMAINED UNREPRESENTED. IN THE CIRCUMSTANCES IT WAS SUBMITTED A HUGE PREJUDICE WOULD BE CAUSED TO THE ASSESSEE IF THE IMPUGNED ORDER IS UPHELD WHICH IS AN EXPARTE ORDER WHEREIN FOR REASONS BEYOND HIS CONTROL HE REMAINED UNREPRESENTED. A CCORDINGLY A PRAYER WAS MADE THAT THE APPEAL MAY BE SET ASIDE BACK TO THE FILE OF THE LD. CIT(A). 3 . CONSIDERING THE RECORD AND THE MATERIAL AVAILABLE ON RECORD. THE LD. SR. DEPARTMENTAL REPRESENTATIVE DID NOT OBJECT TO THE PRAYER FOR REMAND. 4. I HAVE HEARD THE RIVAL SUBMISS ION S AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CONDONATION OF DELAY APPLICATION FILED BY THE ASSESSEE SUPPORTED BY AN AFFIDAVIT . IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE 4 B ENCH I FIND THAT PRAYER OF THE ASSESSEE THAT FOR RE ASONS BEYOND HIS CONTROL HE REMAIN UNREPRESENTED DESERVES TO BE ALLOWED . ACCEPTING THE PRAYER AND THE AVERMENTS MADE IN THE AFFIDAVIT ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE ASSESSEE SHALL PARTICIP ATE FAIRLY IN THE PROCEEDINGS BEFORE THE CIT(A) THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE REMANDED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY O F BEING HEARD. T HE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IT IS HOPED IS USED FULLY AND FAIRLY BY MAKING PROPER COMPLIANCE BEFORE THE CIT(A). WHILE SO DIRECTING IT IS MADE CLEAR THAT IN THE EVENTUALITY OF AB USE OF THE SAME BY NON PARTICIPATION FOR UNJUSTI FIABLE REASONS THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. SIMILAR PRAYER ON IDENTICAL FAC T S WAS MADE IN ITA 507/JODHPUR/2015 AND CONSIDERING THE DEPARTMENTAL STAND FOR SIMILAR REASONS THE S A ID ORDER IS SET ASIDE BACK TO THE FILE OF LD. CIT(A) WITH IDENTICAL DIRECTION ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 6. IT WAS A COMMON STAND OF THE PART IES BEFORE THE B ENCH THAT THE ISSUE IN ITA 266/JO DHPUR/2016 AND 267/JODHPUR/2016 ARE IDENTICAL AND THE DIRECTION GIVEN HEREIN W OULD SUFFICE IN THE FACTS OF THESE TWO APPEALS PERTAINING TO THE VERY SAME ASSESSMENT YEARS IN THE CASE OF THE HUSBAND AND WIFE. 7 . IN THE RESULT APPEAL S OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES AS PER THE PRONOUNCEMENT MADE IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. THE ORDER IS PRONOUNCED ON 03/03/2017 IN THE OPEN COURT. SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 03/03/2017 AG 5 COPY FORWARDED TO: 1. APPELLA NT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT