M/s Ghosh & Chakraborty Transport, Burdwan V. The ITO, Wd-2(1), Asansol, Asansol

ITA 539/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1501 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Assessee Lawyers: S K TULSIYAN
• Keywords: Reasonable cause; Corroborative evidences; Procedural lapse; Condonation of delay

Judgement Text

1 ITA NO.539/KOL/2015 GHOSH & CHAKRABORTY TRANSPORT, AY 2006-07 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] / I.T.A NO. 539/KOL/2015 ! ' / ASSESSMENT YEAR: 2006-07 M/S. GHOSH & CHAKRABORTY TRANSPORT (PAN: AAEFG6324K) VS. INCOME-TAX OFFICER, WARD-2(1), ASANSOL ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING 28.06.2017 DATE OF PRONOUNCEMENT 06.09.2017 FOR THE APPELLANT/ SHRI S. K. TULSIYAN, ADVOCATE FOR THE RESPONDENT/ SHRI DEBASISH LAHIRI, ADDL. CIT, SR. DR / ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), ASANSOL DATED 27.02.2015 FOR AY 2006-07. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) IN NOT ADMITTING THE APPEAL ON THE REASON THAT APPLICATION FOR CONDONATION OF DELAY FOR 9 DAYS HAS NOT BEEN FILED BEFORE HIM. 3. BRIEF FACTS OF THE CASE ARE THAT THIS IS THE SEC OND ROUND OF LITIGATION. THE APPEAL FOR AYS 2010-11 AND 2006-07 (AY UNDER APPEAL) IN THE CA SE OF THE ASSESSEE WERE INSTITUTED BEFORE THE LD. CIT(A) ON THE SAME DATE I.E. ON 06.0 5.2013 WHICH WERE NUMBERED AS APPEAL NO. 180 &181/CIT(A)/ASL-WD-2(1)/ASL-13-14 RESPECTIV ELY. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE THE LD. CIT(A) FOR AY 2010-11, WH EN THE LD. CIT(A) CONFRONTED THE LD. AR ABOUT THE DELAY OF FILING OF APPEAL FOR 9 DAYS, THE LD. AR SHRI JAHAR MUKHERJEE, ADVOCATE EXPLAINED THAT HE COULD NOT FILE THE APPEA L IN TIME DUE TO ILLNESS OF HIS WIFE AND EXPLAINED THE CIRCUMSTANCES, WHICH LED TO THE DELAY WITH SUPPORTING EVIDENCE CONCERNING TREATMENT OF HIS WIFE AND IN FURTHERANCE OF THE SAM E AN AFFIDAVIT WAS ALSO FILED EXPLAINING 2 ITA NO.539/KOL/2015 GHOSH & CHAKRABORTY TRANSPORT, AY 2006-07 THE CIRCUMSTANCES FOR DELAY OF 9 DAYS WAS DULY FILE D. THE PARTNER OF THE ASSESSEE FIRM, SHRI PRASENJIT CHAKRABORTY ALSO FILED AN AFFIDAVIT EXPLA INING THE CAUSE OF DELAY OF 9 DAYS IN FILING APPEAL BEFORE LD. CIT(A). AFTER TAKING NOTE OF THE SHORT DELAY OF 9 DAYS AND BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE HE WAS PLEASED TO CONDONE THE DELAY OF 9 DAYS AND DISPOSED OF THE APPEAL ON MERITS ON 16.02.2015. IN THE AFORESAID CIRCUMSTANCES, THE ASSESSEE WAS UNDER THE BONA FIDE IMPRESSION THAT AS THE APPEALS FOR BOTH THE AYS. 2010-11 AND 2006-07 WERE FILED TOGETHER ON THE SAME DATE I. E. ON 06.05.2013 AND THE CAUSE FOR THE DELAY HAS BEEN EXPLAINED BEFORE THE LD. CIT(A) WITH SUPPORTING EVIDENCE AND WHEN HE WAS PLEASED TO CONDONE THE DELAY AND ADJUDICATE THE MAT TER ON MERITS, THE ASSESSEE DID NOT FILE SEPARATE APPLICATION FOR CONDONATION OF DELAY SINCE THE ORDER OF THE AO IN APPEAL BEFORE THE LD. CIT(A) IN BOTH THE CASES WERE ON THE SAME DATE. HOWEVER, THE LD. CIT(A) AFTER TEN DAYS OF DISPOSING OF THE APPEAL OF AY 2010-11, DISM ISSED THE APPEAL HOLDING THE APPEAL AS DEFECTIVE FOR NON-FILING OF CONDONATION APPLICATIO N AND HENCE, HE DID NOT ADMIT THE APPEAL AND DISMISSED THE SAME. AGGRIEVED, THE ASSESSEE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THIS IS THE SECOND ROUND OF LIT IGATION AND THE ORDER OF THE AO GIVING EFFECT TO THE APPELLATE AUTHORITYS ORDER PASSED TH E ASSESSMENT ORDER FOR AY 2006-07 AND 2010-11 ON THE SAME DATE I.E. ON 28.03.2013. ACCOR DING TO THE ASSESSEE, THE DEMAND NOTICE WAS RECEIVED ON 05.04.2013 AND THE ASSESSEE FILED T HE APPEAL ON 06.05.2013. FOR BOTH THE ASSESSMENT YEARS I.E. THE AY 2010-11 AND AY 2006-07 , THE ASSESSEE PREFERRED APPEALS ON THE SAME DATE I.E. 06.05.2013 WHICH WERE NUMBERED A S APPEAL NO. 180 &181/CIT(A)/ASL- WD-2(1)/ASL-13-14 RESPECTIVELY. FOR AY 2010-11 WHE N CONFRONTED BY THE LD. CIT(A) AS TO THE REASON FOR THE DELAY, THE LD. AR OF THE ASSESSE E SHRI JAHAR MUKHERJEE, ADVOCATE FILED AN AFFIDAVIT BEFORE THE LD. CIT(A) WHEREIN IT WAS STAT ED THAT HIS WIFE WAS UNDER TREATMENT AND, THEREFORE, HE COULD NOT FILE THE APPEAL ON TIME AND THERE WAS A DELAY OF 9 DAYS. IN ORDER TO CORROBORATE THE FACT OF TREATMENT TO HIS WIFE, THE LD. AR FILED EVIDENCE IN RESPECT TO THE SAME. AFFIDAVIT OF THE PARTNER SHRI PRASENJIT CHAK RABORTY WAS ALSO FILED. AFTER PERUSAL OF THE FACTS AND EVIDENCE ON RECORD THE LD. CIT(A) WAS PLEASED TO CONDONE THE DELAY OF 9 DAYS AND ADJUDICATE THE APPEAL ON 16.02.2015. HOWEVER, WHEN THE APPEAL FOR AY 2006-07 WAS TAKEN UP AFTER 10 DAYS, DESPITE TAKING NOTE OF THE FACT OF DISPOSAL OF ASSESSEES APPEAL IN RESPECT TO AY 2010-11, HE WAS OF THE OPINION THAT A LL ASSESSMENTS YEARS ARE SEPARATE 3 ITA NO.539/KOL/2015 GHOSH & CHAKRABORTY TRANSPORT, AY 2006-07 ASSESSMENTS AND SINCE THERE WAS NO CONDONATION APPL ICATION FILED BY THE ASSESSEE, HE HELD THE APPEAL TO BE DEFECTIVE AND HENCE, HE DID NOT AD MIT THE APPEAL AND WAS PLEASED TO DISMISS THE SAME. IN THIS CONTEXT, IT SHOULD BE REMEMBERED THAT PROCEDURE IS THE HAND MAIDEN OF JUSTICE AND THE VESTED RIGHT OF ASSESSEE TO FILE AP PEAL CANNOT BE TURNED DOWN MERELY FOR PROCEDURAL LAPSES WHICH CAN BE CURED. WE NOTE THAT SECTION 249(3) OF THE INCOME-TAX ACT, 1961 STIPULATES THAT THE LD. CIT(A) MAY ADMIT AN APPEAL AFTER THE EXPIR ATION OF THE SAID PERIOD IF HE SATISFIED THAT THE APPELLANT HAD SUFFI CIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THE ACT DOES NOT PER SE STIPULATE FILING OF CONDON ATION APPLICATION. HOWEVER, WHEN THE LIMITATION TIME HAS EXPIRED FOR FILING OF APPEAL, THE APPELLANT HAS TO SHOW THE REASONABLE CAUSE WHICH PREVENTED THE APPELLANT FROM FILING THE APPEAL. THIS CAN BE DONE EITHER BY FILING A CONDONATION APPLICATION OR BY A LETTER OR BY FILING AN AFFIDAVIT EXPLAINING THE REASON FOR THE DELAY. THE STATUTE GIVES THE DI SCRETION TO THE LD. CIT(A) TO CONDONE THE DELAY IF THERE IS SUFFICIENT CAUSE FOR NOT PREFERRI NG THE APPEAL WITHIN 30 DAYS AFTER RECEIPT OF THE ORDER. THE DISCRETION BY A QUASI JUDICIAL AUTH ORITY HAS TO BE JUST, FAIR AND EQUITABLE. IT CANNOT BE UNJUST, UNREASONABLE AND UNFAIR. SUBSTAN TIAL JUSTICE SHOULD NOT BE SACRIFICED ON THE MERE PLEA OF TECHNICALITY. THE LD. AR SHRI JAHA R MUKHERJEE WHO WAS PREVENTED BY A REASONABLE CAUSE TO FILE THE APPEAL WITHIN 30 DAYS AND HAD IN FACT EXPLAINED THE CAUSE FOR THE DELAY THAT IS HIS WIFE WAS SUFFERING FROM ILLNESS A ND HE WAS BUSY WITH HER TREATMENT, SO COULD NOT FILE THE APPEAL ON TIME. FOR THAT HE FIL ED EVIDENCE TO SUBSTANTIATE THE CLAIM AS WELL AS FILED AN AFFIDAVIT EXPLAINING THESE FACTS AND TH AT THE PARTNER OF THE ASSESSEE ALSO FILED AN AFFIDAVIT. IN SUCH A SCENARIO, WHEN THE ORDER OF T HE AO WAS RECEIVED ON THE SAME DAY, AND THE APPEALS WERE FILED FOR AYS 2010-11 AND 2006-07 ON THE SAME DATE AND THE DELAY OF 9 DAYS HAPPENED IN BOTH THE CASES AND WHEN THE LD. CI T(A) HAS CONDONED THE DELAY OF 9 DAYS IN AY 2010-11, IT DOES NOT LIE IN THE MOUTH OF THE LD. CIT(A) TO TURN AROUND AND HOLD THAT THE APPEAL IS DEFECTIVE FOR NON-FILING OF CONDONATI ON APPLICATION. TRUE THAT RES JUDICATA DOES NOT APPLY TO ASSESSMENT PROCEEDINGS, HOWEVER, THE D EFECT AS POINTED OUT BY THE LD. CIT(A) WAS IN ANY CASE COULD HAVE BEEN EASILY CURED, PROVI DED THE ASSESSEE WAS PUT ON NOTICE BY THE LD. CIT(A), WHICH UNFORTUNATELY THE LD. CIT(A) DID NOT DO, WHICH OMISSION OF THE LD. CIT(A) SMACKS OF HIGH HANDEDNESS AND AMOUNTS TO ARB ITRARINESS. THE DECISION OF THE LD. CIT(A) IS PER SE ARBITRARY AND SO NOT SUSTAINABLE I N THE EYES OF LAW. THEREFORE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE APPEAL BACK TO THE FILE OF THE LD. CIT(A) AND TREAT THE APPEAL AS ADMITTED FOR THE REASONS GIVEN IN THE AFFIDAVITS OF THE LD. AR SHRI JAHAR 4 ITA NO.539/KOL/2015 GHOSH & CHAKRABORTY TRANSPORT, AY 2006-07 MUKHERJEE AS WELL AS THE AFFIDAVIT OF THE PARTNER O F THE ASSESSEE FIRM. WE DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL ON MERITS AND PASS A SP EAKING ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THE AP PEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 06.09.2017 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :6TH SEPTEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. GHOSH & CHAKRABORTY TRANSPORT, VIL L. ANANDPUR, P.O. CHURULIA, DIST. BURDWAN, PIN-713 368 2 RESPONDENT ITO, WARD-2(1), ASANSOL 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECY.,