Shri Nareshbhai C. Thakar, Jetpur V. The Income Tax Officer, Ward-4(4), RAJKOT-GUJARAT

ITA 518/RJT/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2403 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHAKRAVARTY
• Assessee Lawyers: RANJIT LALCHANDANI
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BEN CH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHAR AT, J.M.) I.T. A. NO. 518/RJT/2013 (ASSESSMENT YEAR: 2009-10) SHRI NARESHBHAI C. THAKAR OM DESAI WADI, SHAMNATH MANDIR ROAD, JETPUR - 360370 V/S THE INCOME TAX OFFICER, WARD 4(4), RAJKOT (APPELLANT) (RESPONDENT) PAN: AAWPT9355M APPELLANT BY : SHRI RANJIT LALCHANDANI, A DV. RESPONDENT BY : SHRI V. K. CHAKRAVARTY, D.R. ( )/ ORDER DATE OF HEARING : 29-12-2015 DATE OF PRONOUNCEMENT : 01-01-2016 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-III, RAJKOT, DATED 21.11.2013 FOR A.Y. 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A DEVELOPMENT OFFICER WITH LIC OF INDIA . HE FILED HIS RETURN OF INCOME FOR A.Y. 2009-10 DECLARING TOTAL INCOME AT R S. 5,01,370/-. HE THEREAFTER FILED A REVISED RETURN OF INCOME ON 15.0 3.2010, DECLARING TOTAL INCOME OF RS.5,76,280/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF T HE ACT AND THE TOTAL ITA NO 518/RJT/2013 . A.Y. 2009-10 2 INCOME WAS DETERMINED AT RS. 7,14,250/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO V IDE ORDER DATED 21.11.2013 DISMISSED THE APPEAL OF THE ASSESSEE. AG GRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEF ORE US AND HAS RAISED THE FOLLOWING GROUNDS:- [1] THE CIT(A) ERRED IN DISMISSING THE APPEAL AS B EING FILED BEYOND TIME AND WAS BARRED AS BEING WITHOUT ANY SUFFICIENT REASON. [2] THE APPEAL WAS FILED 12 DAYS LATE AND THE APPEL LANT HAD APPLIED FOR CONDONATION OF DELAY. [3] WITHOUT PREJUDICE TO GROUND NO. 1 & 2, THE APPE LLANT SUBMITS THAT THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING CLAIM OF RS. 88,183/- AS INCENTIVE BONUS. THIS AMOUNT WAS NOT INCENTIVE BONUS BUT CONVEYANCE EXPENSES AS DETERMINED BY LIFE INSURANCE CORPORATION OF INDIA AS PER THEIR CE RTIFICATE. IT WAS CONVEYANCE EXPENSE AND CLAIMED AS SUCH. SIMILARLY, THE AMOUNT RS.44,069/- WAS AN ALLOWANCE FROM LIC FOR PROCURING BUSINESS. THE DIS ALLOWANCE IS UNWARRANTED OR UNJUSTIFIED. [4] WITHOUT PREJUDICE TO GROUND NO. 1 & 2, THE LEAR NED ASSESSING OFFICER ERRED IN DISALLOWING RS.34,300/- AS CONVEYANCE ALLOWANCES. THE DISALLOWANCE WAS UNWARRANTED OR UNJUSTIFIED. 4. BEFORE US, LD. A.R. SUBMITTED THAT THOUGH THE ASSES SMENT ORDER PASSED U/S.143(3) WAS SERVED ON 18/11/2011 BUT THE APPEAL WAS FILED BEFORE LD. CIT(A) ON 30/12/2011 AND THUS THERE WAS A DELAY OF 12 DAYS IN FILING THE APPEAL BEFORE LD. CIT(A) AND THE REASON FOR DELAYED FILING WAS THAT THE ASSESSEE COULD NOT CONSULT THE ADVOCATE AS THE ADVO CATE WAS UNDER MEDICAL TREATMENT. THE LD. A.R. SUBMITTED THAT LD. CIT(A) WHILE DECIDING THE APPEAL, DID NOT CONDONE THE DELAY IN FILING THE APPEAL AND THAT WITHOUT DECIDING THE ISSUE ON MERITS, DISMISSED THE APPEAL OF ASSESSEE I N LIMINE. BEFORE US, LD. A.R. FURTHER SUBMITTED THAT THE DELAY ON THE PART O F THE ASSESSEE WAS NOT ON ACCOUNT OF ANY MALA FIDE INTENTION OR AS PART OF A DILATORY STRATEGY AND THAT THE ASSESSEE DID NOT STAND TO BENEFIT BY THE LATE F ILING OF APPEAL AND THAT THE ITA NO 518/RJT/2013 . A.Y. 2009-10 3 DELAYED FILING OF APPEAL WAS ON ACCOUNT OF SUFFICIE NT CAUSE. HE FURTHER SUBMITTED THAT WHEN SUBSTANTIAL JUSTICE AND TECHNIC AL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUS TICE DESERVES TO BE PREFERRED AND THAT THE WORDS SUFFICIENT CAUSE SHOULD RECEIV E LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE AND FOR THIS PROP OSITIONS HE RELIED ON THE DECISIONS OF HONBLE APEX COURT IN THE CASE OF N. B ALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123 AND THE DECISION IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS. REPORTED IN (1987) AIR 1353. HE THEREFORE SUBMITTED THAT THE DELAY IN FILING OF APP EAL BEFORE LD. CIT(A) BE CONDONED AND THE MATTER BE REMITTED BACK TO THE FIL E OF LD. CIT(A) FOR HIM TO DECIDE THE ISSUE ON MERITS. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT AGAINST THE ORDER OF A.O, ASSESSEE HAD PREFERRED APPEAL BEFORE LD. CIT(A) AND THAT THERE WAS DELAY IN FILIN G OF APPEAL BEFORE LD. CIT(A) OF 12 DAYS. WE ALSO FIND THAT LD. CIT(A) DIS MISSED THE APPEAL OF THE ASSESSEE IN LIMINE AND HAD NOT ADJUDICATED THE ISSUE ON MERITS. 6. WE FIND THAT HONBLE APEX COURT IN THE CASE OF N. B ALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA) HAS HELD THAT THE PRIMARY FUN CTION OF THE COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES AND TO A DVANCE SUBSTANTIAL JUSTICE AND THE TIME LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CASE W OULD TRANSFORM INTO A GOOD CASE. IT FURTHER HELD THAT RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF PARTIES BUT ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. IT FURTHER HELD THAT IN EVERY CASE OF ITA NO 518/RJT/2013 . A.Y. 2009-10 4 DELAY, THERE CAN BE SOME LAPSE ON THE PART OF THE L ITIGANT CONCERNED BUT THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SH UT THE DOOR AGAINST HIM. IT FURTHER HELD THAT IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF DILATORY STRATEGY, THE COURT M UST SHOW UTMOST CONSIDERATION TO THE SUITOR. THE HONBLE APEX COURT FURTHER HELD THAT THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE AND THE WORDS SUFFICIENT CAUSE SHOULD RECEIVE A LIBER AL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. 7. WE FURTHER FIND THAT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS. (SUPRA), THE HONBLE SUPREME COURT HAS NOTED THAT REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BE ING THE THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. IT FURTHER HELD THAT THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERA TELY OR ON ACCOUNT OF MALA FIDES AND A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY BUT ON THE CONTRARY HE RUNS A SERIOUS RISK. IT FURTHER HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAI NST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR TH E OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE O F A NON DELIBERATE DELAY. FURTHER, IT IS A SETTLED LAW THAT LD. CIT(A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF ASSESSEE WITHOUT GOING INTO THE MERITS OF ISSUE BEFORE HIM AND EVEN IN AN EX-PARTE ORDER, THE LD. CIT(A) SHOULD HA VE DECIDED THE GROUNDS OF APPEAL OF THE ASSESSEE ON THE MERITS THEREON. IN TH E PRESENT CASE, WE FIND THAT LD. CIT(A) HAS NOT DECIDED THE APPEAL ON MERIT S. 8. CONSIDERING THE AFORESAID DECISIONS OF HONBLE APEX COURT AND CONSIDERING THE ENTIRETY OF FACTS, WE ARE OF THE VIEW THAT IN T HE PRESENT CASE, THE DELAY IN ITA NO 518/RJT/2013 . A.Y. 2009-10 5 FILING OF APPEAL BY THE ASSESSEE BEFORE LD. CIT(A) WAS DUE TO SUFFICIENT CAUSE WHICH NEEDS TO BE CONDONED. WE THEREFORE COND ONE THE DELAY AND REMIT THE ISSUE TO THE FILE OF LD. CIT(A) AND HE IS DIRECTED TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH LAW AND AFTER PROV IDING ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASS ESSEE SHALL ALSO CO-OPERATE BY FILING PROMPTLY ALL THE REQUIRED DETAILS CALLED FOR BY LD. CIT(A) FOR THE DISPOSAL OF APPEAL. WE THUS ALLOW THE GROUNDS OF AS SESSEE WITHOUT COMMENTING ON THE MERITS OF THE CASE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 01-01-2016 SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 01-01-2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT