Mr. Rajeev Kumar Garg, Muzaffarnagar V. ITO, Shamli

ITA 5213/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91298 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 01-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: PREM PRAKASH
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `F NEW DELHI BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER I.T.A.NO.5213/DEL/2013 ASSTT.YEAR: 2009-10 SHRI RAJEEV KUMAR GARG, VS INCOME TAX OFF ICER, MOH. BRAHMNAN, WARD-2, JHINJHANA, SHAMLI (UP) T-KAIRANA D-SHAMLI (UP) (PAN: AJDPG6774H) (APPELLANT) (RESP ONDENT) APPELLANT BY: SHRI PREM PRAKASH, ADVOCATE RESPONDENT BY : SHRI VIKRAM SAHAY, SR. DR DATE OF HEARING: 01.07.2015 DATE OF PRONOUNCEMENT: 09.07.2015 O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAI NST THE ORDER OF CIT(A), MUZAFFARNAGAR DATED 13.6.2013 IN APPEAL NO. 78/12-13/MZR FOR AY 2009-10- BY WHICH THE APPLICATION OF THE ASSESSEE F OR CONDONATION OF DELAY IN FILING APPEAL BEFORE THE FIRST APPELLATE AUTHORITY HAS BEEN DISMISSED AND CONSEQUENTLY APPEAL OF THE ASSESSEE HAS ALSO BEEN D ISMISSED WITHOUT ANY ADJUDICATION ON MERITS. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL READS AS UNDER:- ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 2 1. THAT LD. CIT(A) WAS WRONG IN NOT CONDONING THE DELAY IN FILING THE APPEAL WITHOUT ANY BASE. 2. BRIEFLY STATED THE FACTS GIVING RISE TO THIS APP EAL ARE THAT THE AO SELECTED THE CASE FOR SCRUTINY THROUGH CASS. THE AO FINALIS ED THE ASSESSMENT BY MAKING TWO ADDITIONS VIZ. FIRST ADDITION OF RS.52,9 65 TO COVER UP ALL POSSIBLE LEAKAGES AND SECOND ADDITION OF RS.2,40,381 ON ACCO UNT OF DIFFERENCE IN CLOSING STOCK AS PER BALANCE SHEET AND AS PER SALE PURCHASE STATEMENT PREPARED ON THE BASIS OF SALE/PURCHASE BILLS PRODUCED BEFORE THE AO FOR EXAMINATION. THE AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE C IT(A) ON 10.7.2012 ALONG WITH APPLICATION FOR CONDONATION OF DELAY WHICH WAS REJECTED BY THE CIT(A) AND THE APPEAL WAS ALSO DISMISSED IN LIMINE. NOW, THE EMPTY HANDED ASSESSEE IS BEFORE THIS TRIBUNAL WITH THE SOLE GROUND AS REPROD UCED HEREINABOVE. 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. THE APPEAL WAS FILED BEFORE THE CIT(A) ON 10.7.2012 WHEREAS AS PER FORM NO. 35, NOTICE OF DEM AND ALONG WITH ASSESSMENT ORDER DATED 20.12.2011 WAS SERVED ON 20.12.2011 AND THE APPEAL BEFORE THE CIT(A) SHOULD HAVE BEEN FILED ON OR BEFORE 19.1.201 2, HOWEVER, THE SAME WAS FILED ON 10.7.2012 WHICH WAS DELAYED BY 173 DAYS. LD. COUNSEL OF THE ASSESSEE PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATJI & OTHERS (1987) UPTC 2128 (SC) SUBMITTED THAT ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. LD. COUNSEL FURTHER SUBMITTED THAT RE FUSING THE CONDONTION OF DELAY ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 3 CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. FURTHER PLACING R ELIANCE ON THE DECISION OF JURISDICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF SMT.GOVINDA DEVI VS CIT (2008) 220 CTR (ALL.) 189 , LD. COUNSEL FURTHER SUBMITTED THAT IT IS A WELL- SETTLED PROPOSITION THAT NO PARTY GAINS ANY ADVANTA GE BY CAUSING DELAY IN FILING THE APPEAL BEYOND PRESCRIBED TIME LIMIT. LD. COUNS EL FURTHER POINTED OUT THAT IF THE PARTY APPROACHING THE AUTHORITY OR THE COURT BE YOND THE PRESCRIBED LIMITATION DOES NOT INDICATE ANY MOTIVE OR ANY ADVA NTAGE, THE AUTHORITY OR THE COURT MAY CONDONE THE DELAY AND PROCEED TO DECIDE T HE MATTER ON MERITS TO SERVE THE PURPOSE OF JUSTICE. 4. LD. COUNSEL ELABORATING THE FACTS OF THE PRESENT CASE AND REASON FOR DELAY IN FILING THE APPEAL BY 173 DAYS SUBMITTED THAT THE ASSESSEE DELIVERED THE ASSESSMENT ORDER TO HIS COUNSEL SHRI VIKAS KUMAR, A DVOCATE AND HIS STAFF KEPT THE ORDER IN RECORD WHICH WAS SUBSEQUENTLY MIXED WI TH OTHER OFFICIAL PAPERS OF THE ADVOCATE AND THE APPEAL COULD NOT BE FILED WITH IN TIME. LD. COUNSEL ALSO SUBMITTED THAT WHEN THE ASSESSEE RECEIVED PENALTY O RDER, THE ASSESSEE TRACED ASSESSMENT ORDER AND FOUND THAT THE APPEAL AGAINST THE ORDER OF CIT(A) HAS NOT BEEN FILED WITHIN PRESCRIBED TIME. LD. COUNSEL FUR THER POINTED OUT THAT THE DELAY OF 173 DAYS IN FILING APPEAL WAS CAUSED DUE TO BONA FIDE REASON WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE AND THE ASSESSEE SHOULD NOT BE PUNISHED FOR THE MISTAKE OF THE OFFICE OF THE COUNSEL IN FILING THE APPEAL BEFORE THE TRIBUNAL ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 4 WITHIN PRESCRIBED TIME. TO SUPPORT THIS CONTENTION , THE LD. COUNSEL OF THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE DECISION O F ITAT DELHI IN THE CASE OF THE ROHTAK COOPERATIVE MILK PRODUCER UNION LTD. VS ACIT (2013) 155- TTJ-(DEL) 684. 5. REPLYING TO THE ABOVE, LD. DR VEHEMENTLY CONTEND ED THAT ORIGINALLY THE APPEAL WAS FILED BY SHRI VIKAS KUMAR AND ADMITTEDLY , APPEAL WAS FILED BY SHRI PREM PRAKASH, ADVOCATE, THEREFORE, REASON SUBMITTED BY THE ASSESSEE CANNOT BE HELD AS BONA FIDE AND THE CIT(A) WAS RIGHT IN DISMI SSING THE APPLICATION FOR CONDONATION OF DELAY FILED BY THE ASSESSEE WITHOUT ANY REASONABLE CAUSE AND CONSEQUENTLY APPEAL WAS ALSO DISMISSED ON VALID REA SON. 6. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, W E ARE OF THE CONSIDERED VIEW THAT THE REASON SUBMITTED BY THE ASSESSEE PERT AINS TO THE MISTAKE OF HIS ADVOCATE AND HIS OFFICE AS THE REVENUE AUTHORITIES HAVE NOT DISPUTED THIS FACT THAT THE ASSESSEE WAS REPRESENTED THROUGH HIS COUNS EL SHRI J.K. JAIN, ADVOCATE DURING ASSESSMENT PROCEEDINGS. THE CAUSE AND REASO N SUBMITTED BY THE ASSESSEE JUSTIFYING THE DELAY OF 173 DAYS IN FILING THE APPE AL BEFORE THE CIT(A) APPEARS TO BE BONA FIDE AND REASONABLE. IN THIS SITUATION, WE ARE INCLINED TO HOLD THAT THE VIEW TAKEN BY THE ITAT DELHI IN THE CASE OF ROHTAK COOPERATIVE MILK PRODUCER UNION LTD. VS ACIT (SUPRA) IS APPLICABLE WHEREIN IT WAS HELD THAT WHERE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUN AL OCCURS ON ACCOUNT OF OMISSION ON THE PART OF CONCERNED ADVOCATE, TH E ASSESSEE SHOULD NOT BE ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 5 MADE TO SUFFER AND DELAY IN SUCH CASES SHOULD BE C ONDONED. IN THE PRESENT CASE, APPARENTLY THE DELAY WAS CAUSED DUE TO MISTAK E COMMITTED BY THE OFFICE OF THE COUNSEL OF THE ASSESSEE SHRI VIKAS KUMAR AND HI S STAFF WHO KEPT THE SAME WITH HIM AND ORDER WAS MIXED IN THE PAPERS AND DUE TO THIS REASON, APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED TIME LIMIT. UND ER ABOVE NOTED FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO HOLD THAT THE CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPLICATION OF THE ASSESSEE FOR COND ONATION OF DELAY AND WE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND HOLD THA T THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) DESERVES TO BE CONDONED AN D WE CONDONE THE SAME. ACCORDINGLY, SOLE GROUND OF THE ASSESSEE IS ALLOWED AND THE FIRST APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS AFTER AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESS EE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR LIMITED PURPOSE AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 9/7/2015. SD/- SD/- (J.S. REDDY) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 09 TH JULY 2015 GS ITA NO.5213/DEL/2014 ASSTT.YEAR: 2009-10 6 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR