Sri Aditya Chowdhury, Burdwan V. ITO, Ward 1(2), Burdwan, Burdwan

ITA 539/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1376 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay

Judgement Text

1 ITA NO.539/KOL/2017 ADITYA CHOWDHURY, AY 2008-09 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () BEFORE .., /AND . ' # $% % , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] / I.T.A NO. 539/KOL/2017 / ASSESSMENT YEAR: 2008-09 SHRI ADITYA CHOWDHURY (PAN: ADLPC3708M) VS. INCOME-TAX OFFICER, WD-1(2), BURDWAN ( )* /APPELLANT ) ( +,)* / RESPONDENT ) DATE OF HEARING 01.09.2017 DATE OF PRONOUNCEMENT 06.10.2017 FOR THE APPELLANT/ )* N O N E FOR THE RESPONDENT/ +,)* SHRI SALLONG YADEN, ADDL. CIT, DR / ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), BURDWAN DATED 31.12.2016 FOR AY 2008-09. THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT REJECTION OF APPLICATION OF CONDONATI ON OF DELAY DATED 27.06.2011 ON 30.12.2016 (AFTER 5 YEARS 6 MONTHS) WAS NOT LEASED UPON THE FACTS AND CIRCUMSTANCES OF THE CASE AND CANNOT BE SUSTAINED. 2. FOR THAT OUTRIGHT REJECTION OF, WITHOUT GIVING A PROPER CHANCE TO REPRESENT, ENTIRE GROUNDS OF APPEAL PREFERRED BEFORE THE LD. CIT(APPEALS), BU RDWAN WAS AGAINST NATURAL JUSTICE AND WAS NOT BASED UPON THE FACTS AND CIRCUMSTANCES OF T HE CASE AND CANNOT BE SUSTAINED. 2. NONE APPEARED FOR THE ASSESSEE. HOWEVER, AFTER TAKING NOTE OF THE GROUNDS OF APPEAL AND THE IMPUGNED ORDER OF LD. CIT(A), WE NOTE THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL ON THE GROUND THAT ASSESSEE COULD NOT SATISF Y THE LD. CIT(A), THE CAUSE WHICH PREVENTED THE ASSESSEE FROM FILING THE APPEAL WITHI N THE LIMITATION PERIOD PRESCRIBED BY THE STATUTE. ACCORDING TO THE LD. CIT(A), THERE WAS A DELAY OF FIVE MONTHS FOR FILING THE APPEAL AND SINCE THE ASSESSEE COULD NOT GIVE ANY REASONABL E CAUSE FOR CONDONATION OF DELAY, THE LD. CIT(A) DID NOT GO TO THE MERITS OF THE CASE AND DIS MISSED THE APPEAL. WE NOTE THAT THE 2 ITA NO.539/KOL/2017 ADITYA CHOWDHURY, AY 2008-09 ASSESSEE HAD IN FACT FILED THE CONDONATION APPLICAT ION GIVING THE REASON THAT THE AR WHO WAS ENTRUSTED WITH THE MATTER DID NOT COOPERATE WITH TH E ASSESSEE AND, THEREFORE, HE COULD NOT FILE THE APPEAL ON TIME. FINDING OUT THAT THE LD. AR WA S NOT COOPERATING, THE ASSESSEE GAVE THE APPEAL TO THE NEW AR, SHRI S. CHOWDHURY, ADVOCATE. ACCORDING TO THE LD. CIT(A), THE REASON GIVEN BY THE ASSESSEE FOR FILING THE APPEAL AFTER FIVE MONTHS WAS NOT A REASONABLE CAUSE TO JUSTIFY CONDONATION OF DELAY, SO, WITHOUT GOING INTO MERITS, HE DISMISSED THE APPEAL. 3. WE NOTE THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSEE HAD FILED THE APPEAL BEFORE THE LD. CIT(A) ON 27.06.2011 ALONG WI TH THE CONDONATION FOR DELAY APPLICATION DATED 27.06.2011 AND THE LD. CIT(A) DIS MISSED THE APPLICATION FOR CONDONATION OF DELAY AFTER FIVE YEARS AND SIX MONTHS VIDE IMPUG NED ORDER DATED 30.12.2016 WITHOUT GIVING THE OPPORTUNITY TO THE PRESENT AR SHRI S. CH OWDHURY, ADVOCATE, WHICH ACCORDING TO THE ASSESSEE IS IN GROSS VIOLATION OF THE NATURAL J USTICE. WE NOTE THAT THE APPEAL HAS BEEN FILED BY THE ASSESSEE ON 27.06.2011 ALONG WITH THE APPLICATION FOR CONDONATION OF DELAY FOR FIVE MONTHS. THE REASON GIVEN FOR THE DELAY WAS TH AT THE ASSESSEES AR WHO WAS INITIALLY ENTRUSTED WITH THE APPEAL DID NOT COOPERATE WITH HI M AND SO, THE ASSESSEE HAD TO ENGAGE A NEW COUNSEL SHRI S. CHOWDHURY, ADVOCATE TO PREPARE THE APPEAL AND THEREAFTER THE AR FILED APPEAL BEFORE THE LD. CIT(A). WE NOTE THAT THE CON DONATION APPLICATION WAS FILED ON 27.06.2011 WHICH FACT HAS BEEN ADMITTED BY THE LD. CIT(A) IN FIRST PARA OF THE IMPUGNED ORDER WHICH WAS PASSED UNDISPUTEDLY AFTER FIVE YEAR S AND SIX MONTHS ON 30.12.2016. WE NOTE THAT THE INITIAL NOTICE IN RESPECT TO HEARING OF APPEAL WAS ISSUED ON 25.04.2016 FIXING THE HEARING ON 10.05.2016. THE LD. CIT(A) ADMITS T HAT DURING THE APPELLATE PROCEEDINGS SHRI S. CHOWDHURY, ADVOCATE ON BEHALF OF THE ASSESS EE HAD ATTENDED AND DISCUSSED THE CASE AND HAS ALSO FILED A WRITTEN SUBMISSION IN SUPPORT OF THE APPEAL. IN SUCH A SCENARIO, THE ACTION OF LD. CIT(A) TAKING NOTE OF THE FIVE MONTHS DELAY IN FILING THE APPEAL AND DISMISSING THE APPEAL WITHOUT GOING INTO THE MERITS OF THE CASE CANNOT BE COUNTENANCED BECAUSE IT SMACKS OF ARBITRARINESS. IF THE LD. CIT (A) FELT THAT THE REASON GIVEN BY THE ASSESSEE IS UNBELIEVABLE THEN THE ASSESSEE SHOULD H AVE BEEN GIVEN AN OPPORTUNITY TO PROVE THAT THE FIRST AR WHO WAS ENTRUSTED WITH THE MATTER DID NOT COOPERATE COULD HAVE BEEN PROVED BY OTHER EVIDENCE WHICH THE LD. CIT(A) DID N OT DO. RATHER HE MADE A MOUNTAIN OUT OF MOLE AND AFTER DISCUSSING THE APPEAL WITH THE LD . AR AND WITHOUT GOING INTO THE MERITS, 3 ITA NO.539/KOL/2017 ADITYA CHOWDHURY, AY 2008-09 THE LD. CIT(A) HAS DISMISSED THE APPLICATION FOR CO NDONATION OF DELAY BY SIMPLY STATING THAT THE ASSESSEE WAS NOT VIGILANT. THE ACTION OF THE L D. CIT(A) IS A HI-PER TECHNICAL GROUND CANNOT BE COUNTENANCED FOR THE SIMPLE REASON THAT Q UASI JUDICIAL BODY HAS TO GIVE SUBSTANTIAL JUSTICE. IN THIS CASE, THE LD. CIT(A) AFTER SITTIN G OVER THE APPEAL FOR FIVE YEARS AND SIX MONTHS HAS SIMPLY DISMISSED THE CONDONATION PETITIO N FOR FIVE MONTHS IS A CLEAR CASE OF MISCARRIAGE OF JUSTICE AND CANNOT BE ACCEPTED. WE DO NOT SUBSCRIBE OF SUCH ARBITRARY ACTION OF THE LD. CIT(A) AND, THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND WE CONDONE THE DELAY BECAUSE THE ASSESSEE CANNOT BE FAULTED FO R THE NON-COOPERATION OF THE FIRST AR AND THE ASSESSEE CANNOT SUFFER FOR THE INACTION OF THE FIRST AR OF THE ASSESSEE AND THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF LD. CI T(A) AND WE DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL DE NOVO ON MERITS BY PASSING A SP EAKING ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2017. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :6 TH OCTOBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI ADITYA CHOWDHURY, PROP. MA TARA BA KERY STORES, B. B. GHOSH ROAD, CHOWDHURY BAZAR, BURDWAN-713 101 2 RESPONDENT ITO, WARD-1(2), BURDWAN 3 . THE CIT(A), BURDWAN 4. 5. CIT , BURDWAN DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECY.,