SUNIL M. BAJAJ ( DECASED) THROUGH LEGAL HEIR KIRAN S. BAJAJ, MUMBAI V. ACIT 19(1), MUMBAI

ITA 5277/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49352 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 02-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 15-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Assessee Lawyers: D R RAIYANI
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NOS. 5276 & 5277/MUM/2009 (ASSESSMENT YEARS: 2004-05 & 2000-01) SHRI SUNIL M. BAJAJ (THROUGH LEGAL ACIT, CIRCLE 19(1) HEIR KIRAN S. BAJAJ), ANAND HOUSE PIRAMAL CHAMBERS 1ST FLOOR, CORNER OF LINK ROAD VS. PAREL, MUMBAI 400012 13TH ROAD, KHAR (W), MUMBAI PAN - AAAPB 6671 M APPELLANT RESPONDENT APPELLANT BY: SHRI D.R. RAIYANI RESPONDENT BY: SHRI G.P. TRIVEDI O R D E R PER P.M. JAGTAP, A.M. THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST TWO SEPARATE ORDERS PASSED BY THE LEARNED CIT(A) BOTH D ATED 19.10.2007 FOR A.Y. 2004.05 & 2000-01. 2. AT THE OUTSET, IT WAS NOTICED THAT THERE HAS BEEN A DELAY OF 567 DAYS ON THE PART OF THE ASSESSEE IN FILING THESE APPEALS BEFORE THE TRIBUNAL. IN THIS REGARD, AN APPLICATION HAS BEEN MOVED BY THE ASSESS EE SEEKING CONDONATION OF THE SAID DELAY ON THE FOLLOWING GROUNDS: - APPEALS FOR ASSESSMENT YEARS 2000-01 & 2004-05 WER E FILED BEFORE CIT(A) BY LATE SHRI SUNIL M. BAJAJ ON 29.01.2007 (W HEN HE WAS ALIVE). HE EXPIRED ON 19.02.2007 . COPY OF HIS DEATH CERTIFICATE IS ENCLOSED. THESE APPEALS WERE DISMISSED BY CIT(A) VI DE HIS ORDERS DATED 19.10.2007 RECEIVED ON 27.11.2007. THE APPEALS ORDERS WERE SENT WITHIN TIME TO THE C.A. FOR FILING THE APPEAL BEFORE THE HON'BLE TRIBUNAL. HOWEVER C.A. CO ULD NOT PREPARE THE APPEAL MEMOS BEING OF THE VIEW THAT YOUR APPELL ANT HAD NO GOOD CASE ON THE ISSUE. C.A. THEREFORE RETURNED THE APPE AL ORDERS WITH THE ADVICE TO PAY DEMAND BY INSTALMENTS. INSTALMENTS AR E BEING PAID. MY HUSBAND EXPIRES ON 19.02.2007 , LEAVING BEHIND HIM MYSELF, I.E., HIS WIDOW AND HIS TWO CHILDREN, ONE SON AND O NE DAUGHTER. SON WAS THEN 19 YEARS OLD, STUDYING. THE LEGAL HEIRS WE RE, ON THE BASIS OF ITA NOS. 5276 & 5277/MUM/2009 SHRI SUNIL M. BAJAJ 2 THE ADVICE TENDERED BY THE C.A.S OFFICE, UNABLE TO FILE THE APPEAL EARLIER. THE APPELLANT HAS NOW COME TO KNOW THAT THE ADVICE THEN TENDERED WAS ERRONEOUS. THE MUMBAI SPECIAL BENCH HAS RECENTL Y PASSED AN ORDER IN CASE OF TOPMAN EXPORTS WHICH CONFIRMS THE SUBMISSIONS MADE BY YOUR APPELLANT BEFORE THE ASSESSING OFFICER AND BEFORE CIT(A). YOUR APPELLANT, THEREFORE, BEG TO SUBMIT DE LAYED APPEALS WITH REQUEST TO CONDONE THE DELAY IN SUBMISSION OF APPEALS AND TO HEAR THE APPEALS ON MERITS. YOUR APPELLANT SUBMITS THAT YOUR APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEALS WITHIN SPECIFIED TIME. DELAY MAY THEREFORE BE CONDONED. 3. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT AFFIRMING ON OATH THAT WHAT EVER IS STATED ABOVE IS TRUE AND CORRECT. AFTER HAV ING GONE THROUGH THE SAID AFFIDAVIT AS WELL AS THE APPLICATION OF THE ASSESSE E FOR CONDONATION OF DELAY, IT IS OBSERVED THAT THE SAID DELAY HAS MAINLY CAUSE D AS A RESULT OF MISTAKE BY THE CHARTERED ACCOUNTANT OF THE ASSESSEE WHO ADV ISED HIM NOT TO FILE APPEALS AGAINST THE ORDERS OF THE LEARNED CIT(A). T HIS MISTAKE WAS SUBSEQUENTLY REALISED BY ASSESSEE AFTER HAVING COME ACROSS THE DECISION OF THE SPECIAL BENCH OF ITAT IN THE CASE OF TOPMAN EXP ORTS AS STATED IN THE APPLICATION FOR CONDONATION OF DELAY AND THE SAME H AS BEEN PLEADED AS SUFFICIENT CAUSE BY THE ASSESSEE WHICH RESULTED IN THE DELAY IN FILING THESE APPEALS BEFORE THE TRIBUNAL. THE LEARNED D.R. INITI ALLY MADE AN ATTEMPT TO OPPOSE THE APPLICATION MADE BY THE ASSESSEE SEEKING CONDONATION OF DELAY BUT FINALLY LEFT THE MATTER TO THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO P ERUSED THE RELEVANT MATERIAL ON RECORD. IN THE CASE OF COLLECT OR, LAND ACQUISITION VS. MST. KATIJI 167 ITR 471, THE HON'BLE SUPREME COURT HAS OBSERVED THAT THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGIS LATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE. IN THE CASE OF RAMMN ATH SAO AND OTHERS VS. GOBARDHANDAS SAO AND OTHERS, THE HON'BLE SUPREME CO URT HAS HELD THAT THE EXPRESSION SUFFICIENT CAUSE WITHIN THE MEANIN G OF SECTION 5 OF LIMITATION ACT SHOULD RECEIVE LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO THE PARTY. IN THE CASE OF N. BALKRISHN AN VS. M. KRISHNAMURTH, ITA NOS. 5276 & 5277/MUM/2009 SHRI SUNIL M. BAJAJ 3 THE HON'BLE SUPREME COURT HAD AN OCCASION TO CONSID ER A SIMILAR ISSUE AND THE DELAY OF 883 DAYS IN FILING AN APPLICATION WAS HELD TO BE CONDONABLE BY THEIR LORDSHIPS OF APEX COURT SINCE THE SAID DELAY WAS CAUSED DUE TO FAILURE OF THE ADVOCATE TO INFORM THE APPELLANT AS WELL AS HIS FAILURE TO TAKE ACTION IN THE MATTER IN TIME. IN THE CASE OF CONCORD OF INDIA INDIA INSURANCE CO. LTD. VS. NIRMALA DEVI 118 ITR 507, THE HON'BLE SUPREME C OURT WHILE DEALING WITH THE QUESTION OF CONDONATION OF DELAY IN CASES OF MI STAKES OF COUNSEL, HAS EMPHATICALLY OBSERVED THAT THERE IS NO PARTICULAR R EASON WHY, WHEN A COMPANY OR OTHER PERSON RETAINS A LAWYER TO ADVISE IT OR HIM ON LEGAL AFFAIRS, RELIANCE SHOULD NOT BE PLACED ON SUCH COUN SEL. IN THE CASE OF STATE OF KERALA VS. KRISHAN KURUP AIR 1971 (KER) 211, THE HO N'BLE KERALA HIGH COURT HAS HELD THAT THE LAW IS WELL SETTLED THAT MISTAKE OF COUNSEL MAY IN CERTAIN CIRCUMSTANCES BE TAKEN INTO ACCOUNT IN CONDONING DE LAY PROVIDED THAT SUCH MISTAKE WAS BONA FIDE AND WAS NOT MERELY A DEVISE T O COVER AN ULTERIOR PURPOSE SUCH AS LATCHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN UNDER-HAND WAY. 5. HAVING REGARD TO THE FACTS OF THE CASE AND KEEPING IN VIEW THE SPIRIT OF JUDICIAL PRONOUNCEMENTS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN FI LING THESE APPEALS BY ASSESSEE BEFORE THE TRIBUNAL AND IT IS A FIT CASE F OR EXERCISING DISCRETION TO CONDONE THE SAID DELAY. IN THAT VIEW OF THE MATTER, WE CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THESE APPEALS AN D PROCEED TO DISPOSE OFF THE SAME. 6. IT IS OBSERVED FROM THE CONTENTS OF THE APPLICATION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY THAT THESE APPEALS WERE FI LED BY ASSESSEE FOR THE YEARS UNDER CONSIDERATION BEFORE THE LEARNED CIT(A) ON 29.01.2007. ASSESSEE, HOWEVER, EXPIRED ON 19.02.2007 AS MENTION ED IN THE SAID APPLICATION AND FURTHER SUPPORTED BY A COPY OF DEAT H CERTIFICATE ANNEXED THERETO. THE SAID APPEALS OF THE ASSESSEE WERE DISP OSED OFF BY THE LEARNED CIT(A) BY TWO SEPARATE ORDERS PASSED ON 19.10.2007 AND AS IS EVIDENT FROM THE SAID ORDERS, THE SAME HAVE BEEN PASSED IN THE N AME OF ASSESSEE WHO WAS NO MORE. THE IMPUGNED ORDERS OF THE LEARNED CIT (A) DISPOSING OFF THE ITA NOS. 5276 & 5277/MUM/2009 SHRI SUNIL M. BAJAJ 4 APPLES OF ASSESSEE THUS HAVE BEEN PASSED IN THE NAM E OF A DEAD PERSON WITHOUT BRINING HIS LEGAL HEIRS ON RECORD. WE, THER EFORE, SET ASIDE THE SAID ORDERS OF THE CIT(A) PASSED IN THE NAME OF THE DECE ASED ASSESSEE AND REMAND THE MATTER TO HIM WITH THE DIRECTION TO PASS FRESH ORDERS DISPOSING OF THE APPEALS FILED BY ASSESSEE BEFORE HIM AFTER B RINGING THE LEGAL HEIRS OF THE DECEASED ASSESSEE ON RECORD AND AFTER GIVING PR OPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE SAID LEGAL HEIRS. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE 2011. SD/- SD/- (V. DURGA RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24 TH JUNE 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XX, MUMBAI 4. THE CIT XIX, MUMBAI CITY 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.