M/S. RASILA H. SHETH, MUMBAI V. THE ITO WD 18(3)(3), MUMBAI

ITA 5430/MUM/2007

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8952 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-10-2007
• Assessment Year: 2003-2004
• Appeal Filed On: 13-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAYANK PRIYADARSHI
• Assessee Lawyers: VIPUL B JOSHI
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER & SHRI T.R.SOOD, ACCOUNTANT MEMBER I.T.A.NO.5430/MUM/2007 A.Y 2003-04 RASILAL H. SHETH, 134A, KALPATARU, OPP. CINEMAX, SION (E), MUMBAI 400 022. PAN: ADKPS 5037 R VS. INCOME TAX OFFICER, WARD 18 (3) (3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIPUL B. JOSHI. RESPONDENT BY : SHRI MAYANK PRIYADARSHI. O R D E R PER T.R.SOOD, AM: THIS APPEAL HAS BEEN FILED LATE BY 70 DAYS. IN APP LICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT HAS AL SO BEEN FILED. THE LD. COUNSEL OF THE ASSESSEE REFERRED TO THE CONTENT S OF THE AFFIDAVIT AND POINTED OUT THAT APPEAL WAS FILED LATE BY 70 DA YS. THE ORIGINAL ORDER BY THE CIT[A] WAS RECEIVED BY THE ASSESSEE ON 4-4-2007 BUT ASSESSEE WAS ADVISED TO FILE A RECTIFICATION APPLIC ATION BEFORE THE CIT[A] BECAUSE THE APPELLATE ORDER WAS PASSED ON EX PARTE BASIS. ACCORDINGLY, ASSESSEE FILED A RECTIFICATION APPLICA TION WHICH WAS ALSO REJECTED AND THIS ORDER WAS SERVED TO THE ASSESSEE ON 21-6-2007 AND THE APPEAL WAS FILED WITH SIXTY DAYS FROM THE DATE OF THIS ORDER. THIS CLEARLY SHOWS THAT UNDER ADVICE ASSESSEE WAS PURSUI NG A WRONG 2 REMEDY AND, THEREFORE, A LENIENT VIEW SHOULD BE TAK EN AND THE DELAY SHOULD BE CONDONED AS THERE WAS NO INTENTION TO FIL E THE APPEAL LATE. 2. ON THE OTHER HAND, LD. DR OPPOSED THE SUBMISSION S. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIN D THAT ASSESSEE IS A SENIOR CITIZEN AND WAS PURSUING A WRONG REMEDY BECAUSE OF THE ADVICE OF HIS CHARTERED ACCOUNTANT. THEREFORE, WE A RE OF THE VIEW THAT ASSESSEE HAS EXPLAINED THE DELAY IN FILING THE APPE AL SUFFICIENTLY AND, ACCORDINGLY, WE CONDONE THE DELAY. 4. ON MERITS, THE LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT THE APPELLATE ORDER HAS PASSED ON EX PARTE BASIS WITHOU T GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THOUGH TWO ADJOURNMENT S WERE GRANTED BUT THE ASSESSEE WANTED FURTHER TIME WHICH WAS NOT GIVEN. IN ANY CASE, ASSESSEE IS A SENIOR CITIZEN AND, THEREFORE, ONE MORE OPPORTUNITY MAY BE GRANTED. HE ALSO UNDERTOOK THAT ASSESSEE WOU LD COOPERATE IN ALL FUTURE PROCEEDINGS BEFORE THE CIT[A]. 5. ON THE OTHER HAND, LD. DR STRONGLY SUPPORTED THE ORDER OF THE CIT[A]. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT SINCE ASSESSEE IS A SENIOR CITIZEN, THEREFORE, ONE MORE O PPORTUNITY SHOULD BE GRANTED AND, ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT[A] AND REMIT THE MATTER TO HIS FILE FOR RE-EXAMINATION OF THE SAME AFTER GIVING 3 AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE ASSESSEE IS STRICTLY DIRECTED TO COOPERATE WITH THE PROCEEDINGS. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF JANUARY, 2011. SD/- SD/- (N.V.VASUDEVAN) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 12 TH JANUARY, 2011. P/-*