Hiralal Jain Prop. M/s Krashi Khad Bhandar, Barngar V. Income Tax Officer 2 (2), Ujjain

ITA 519/Ind/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1911 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Keywords: Non-deduction of tax; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

[ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.519/IND/2018 ASSESSMENT YEAR: 2008-09 HIRALAL JAIN PROP. M/S. KRASHI KHAD BHANDAR RUNIZA ROAD, BARNAGAR-456776 (M.P.) / VS. ITO - 2(2) UJJAIN ( APPELLANT ) ( REVENUE ) P.A. NO. ABEPJ8205D APPELLANT BY SHRI PANKAJ SHAH, C.A. RESPONDENT BY SHRI K.G. GOYAL, SR.DR. DATE OF HEARING: 27.11.2019 DATE OF PRONOUNCEMENT: 10.12.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE CIT(A), UJJAIN DATED 22.8.2017 PERTAINING TO THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 2 [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 3 [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 4 2. THE PRESENT APPEAL IS BARRED BY TIME. THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF DELAY O F 150 DAYS. LD. COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS AS MADE IN THE APPLICATION. IT IS STATED T HAT THE FILING OF APPEAL WAS ASSIGNED TO M/S. ANKUR GOYAL & COMPANY. IT IS FURTHER SUBMITTED THAT CHARTERED ACCOUNTANT GAURAV PANDYA OF ANKUR GOYAL & COMPANY WAS LOOKING AFTER THE APPEAL CASE OF THE FIRM, RETIRED F ROM THE FIRM WITHOUT GIVING ANY INFORMATION OF PENDING FI LES, WHICH WERE WITHIN HIS KNOWLEDGE. LD. COUNSEL FOR T HE [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 5 ASSESSEE SUBMITTED THAT THE ASSESSEE HAS GIVEN AN AFFIDAV IT TO THIS EFFECT. LD. COUNSEL FURTHER SUBMITTED THAT DELAY IS NOT ATTRIBUTABLE TO THE ASSESSEE AND THERE IS A REASONABL E CAUSE. 3. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT THE ASSESSEE WAS REQUIRED TO EXPLAIN THE REASON FOR EACH DAYS DELAY BUT HE FAILED TO DO SO. LD. D.R. FU RTHER SUBMITTED THAT THERE IS NO REASONABLE CAUSE. ASSESSEE SHOULD HAVE BEEN VIGILANT. 4. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE HAS FILED AN AFFIDAVIT STATING THE REASONS FOR NON-FILING OF THE APPE AL WITHIN THE TIME PRESCRIBED. IT IS STATED THAT THE APPE AL PAPERS AND AUTHORITY WERE DULY HANDED OVER TO THE CHARTERED ACCOUNTANT LOOKING AFTER THE CASE. BUT DUE T O NEGLIGENCE OF THE PARTNER OF M/S. ANKUR KUMAR GOYAL, DELAY COULD NOT BE AVOIDED. IT IS CONTENDED THAT IN THE [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 6 INTEREST OF JUSTICE AND FAIR PLAY, DELAY BE CONDONED. IT IS FURTHER CONTENDED THAT THE ASSESSEE HAS NOT TAKEN ANY ADVANTAGE OF FILING THE PRESENT APPEAL LATE. 5. ON THE CONTRARY, IF THE DELAY IS NOT CONDONED, TH E ASSESSEE WOULD SUFFER GROSS MISCARRIAGE OF JUSTICE. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO THE FACTS OF TH E CASE AND THE SUBMISSIONS MADE BY THE LD. AUTHORIZED REPRESENTATIVES OF THE RESPECTIVE PARTIES. THE RELIAN CE IS PLACED WITH JUDGEMENT OF THE HON'BLE SUPREME COURT I N CIVIL APPEAL NOS.6671 TO 6676 OF 2010 IN THE CASE OF SENIOR BHOSALE ESTATE (HUF) VS. ACIT, WHEREIN HON'BLE SUPREM E COURT HAS HELD AS UNDER: NOTABLY, THE RESPONDENT(S) DID NOT EXPRESSLY REFUT E THE STAND TAKEN BY THE APPELLANT (S) THAT THEY HAD NO KNOWLEDGE A BOUT PASSING OF ORDER DATED 29.12.2003 UNTIL JUNE, 2008. UNLESS TH AT FACT WAS TO BE REFUTED, THE QUESTION OF DISBELIEVING THE STAND TAKEN BY THE APPELLANT(S) ON AFFIDAVIT, CANNOT ARISE AND FOR WHI CH REASON, THE HIGH COUIRT SHOULD HAVE SHOWN INDULGENCE TO THE APP ELLANT(S) BY CONDONING THE DELAY IN FILING THE CONCERNED APPEAL( S). THIS ASPECT HAS BEEN GLOSSED OVER BY THE HIGH COURT. [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 7 RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF SENIOR BHOSALE E STATE (HUF) VS. ACIT (SUPRA), I CONDONE DELAY AND ADMIT THE APPEAL FOR ADJUDICATION. 6. GROUND NOS.1 & 2 ARE AGAINST REOPENING OF THE ASSESSMENT. LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ASSESSEE IS AN INDIVIDUAL AND A TRADER IN PURCHASE AND SALE OF MANURE THROUGH THE HEAD OFFICE IN THE NAME OF M/S. KRASHI KHAD BHANDAR. THE ASSESSEE HAD FILED ITS ORIGINAL RETURN OF INCOME DECLARING TAXABLE INCOME OF RS.2,58, 140/- THE ORIGINAL ASSESSMENT WAS PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) AND THE INCOME WAS ASSESSED AT RS.3,37,770/-. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE ORIGINAL ASSESSMENT, ALL EVIDENCES WERE PLACED BEFORE THE A.O. IT IS CONTENDED THAT THE ASSESSING OFFICER FAILED TO APPRECIAT E THE FACTS AVAILABLE ON RECORDS. IT IS CONTENDED THAT INFORM ATION [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 8 WAS DULY PLACED BEFORE THE A.O. DURING THE ORIGINAL ASSESSMENT. 7. PER CONTRA, LD. D.R. OPPOSED THESE SUBMISSIONS AND POINTED OUT THAT NO SUCH GROUNDS WERE RAISED BEFORE L D. CIT(A). 8. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORDS. FROM THE RECORDS, IT IS SEEN THAT NO SUCH GROUNDS WERE RAISED BEFORE LD. CIT(A). I THEREFORE, DISMISS THESES GROUNDS. 9. NOW COMING TO GROUND NO.3, IT IS AGAINST ADDITION MADE BY THE A.O. ON ACCOUNT OF NON-DEDUCTION OF TAX. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. MADE ADDITION FOR NON-DEDUCTING TAX AT SOURCE IN RESPECT O F INTEREST PAID TO MISS VARSHA JAIN AND SMT. LEELABAI SHANKAR LAL JAIN. LD. COUNSEL SUBMITTED THAT FORM 15G/15H WAS FILED LATE, HOWEVER, THE SAME WAS DULY FILE D BEFORE THE LD. CIT(A). LD. CIT(A) OUGHT TO HAVE CON SIDERED [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 9 THESE EVIDENCES. ON THE CONTRARY, LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORITI ES BELOW. I HAVE HEARD THE RIVAL SUBMISSIONS. IT IS NOT DISPUTED BY THE REVENUE THAT THE ASSESSEE HAD FILED FO RM 15G/15H. IN MY VIEW, LD. CIT(A) SHOULD HAVE CONSIDE RED THE EVIDENCES SUPPLIED BY THE ASSESSEE AND IN CASE HE WAS NOT SATISFIED, HE SHOULD HAVE GOT IT VERIFIED FROM TH E BANK. I THEREFORE, DIRECT THE A.O. TO DELETE THIS ADDITION . 10. GROUND NOS.4 & 5 ARE GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDICATION. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 10. 12.2019. SD/ - (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 10/12/2019 VG/SPS [ITA NO.519/IND/2018] [SHRI HIRALAL JAIN, BARNAGAR] 10 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE