Suresh Onkarmal Sanghvi, Prop.Anmol Cements & Sales, Pune V. Asstt.COT.Cen.Cir. 1(2), Pune, Pune

ITA 545/PUN/2012

• Counselvise Citation: 54524514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Reasonable cause; Block assessment; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.545/PN/2011 ASSESSMENT YEAR : 1996-97 TO 2002-03 (PART) SURESH ONKARMAL SANGHVI PROP. ANMOL CEMENTS & SALES C/O KHANDELWAL JAIN & ASSOCIATES CHARTERED ACCOUNTANTS, 1 ST FLOOR, ALANKAR CINEMA BUILDING PUNE 411 001 PAN : ANLPS2053B . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1 (2), PUNE. . RESPONDENT APPELLANT BY : MR. NILESH KHANDELWAL RESPONDENT BY : MR. SANTOSH KUMAR DATE OF HEARING : 19-06-2013 DATE OF PRONOUNCEMENT : 25-06-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE DATED 27.03.2007 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 28.10.2005 PAS SED BY THE ASSESSING OFFICER, UNDER SECTION 158BC(C) READ WITH SECTION 1 58BD OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), PERTAINS TO THE BLO CK PERIOD 1996-97 TO 2002-03 (PART). 2. BEFORE PROCEEDING FURTHER, WE MAY DEAL WITH ASSE SSEES APPLICATION SEEKING CONDONATION OF DELAY IN FILING OF THE PRESE NT APPEAL. THERE IS A DELAY OF 1,765 (APPROX) DAYS. THE REASONS FOR THE DELAY H AVE BEEN EXPLAINED BY WAY OF AN AFFIDAVIT BY THE ASSESSEE-DEPONENT, THE RELEV ANT PORTION OF WHICH IS REPRODUCED HEREIN :- ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) 1. ON 24 TH MARCH 2002, I WAS SUFFERING FROM SEVERE HEADACHE. I WAS ADVISED TO GET AN MRI DONE WHICH I GOT DONE ON 25 TH , 26 TH , 27 TH MARCH 2002. IN THE MRI REPORT IT WAS FOUND THAT I HAD RIG HT CEREBELLA TUMOUR. 2. I WAS IMMEDIATELY MOVED TO P.D. HINDUJA NATIONAL HOSPITAL AND RESEARCH CENTRE, MUMBAI ON 1 ST APRIL, 2002. I WAS THEN OPERATED THERE ON 3 RD APRIL 2002. AFTER OPERATION THE TUMOUR WAS TESTED A ND IT WAS FOUND TO BE MALIGNANT/CANCEROUS. DURING THE SAME PERIOD I WAS A LSO DIAGNOSED TO BE A DIABETIC. I WAS GIVEN 6 CYCLES OF CHEMOTHERAPY FROM HINDUJA (MUMBAI) AND INLAKHS & BUDHRANI HOSPITAL (PUNE) THE DETAILS OF W HICH ARE AS UNDER : - A. 17 TH APRIL, 2002 TO 23 RD APRIL, 2002 FIRST CHEMOTHERAPY, DR. ASHA. KAPADIA HINDUJA. B. 02 ND MAY, 2002 TO 6 TH MAY, 2002 SECOND CHEMOTHERAPY, DR. ASHA. KAPADIA HINDUJA. C. 13 TH MAY, 2002 TO 16 TH MAY, 2002 THIRD CHEMOTHERAPY, DR. ASHA. KAPADIA HINDUJA. D. 17 TH JULY, 2002 TO 20 TH JULY, 2002 FOURTH CHEMOTHERAPY, DR. ASHA. KAPADIA HINDUJA. E. FIFTH I DO NOT REMEMBER THE DATES BUT IT WAS IN 2002. F. SIXTH NO DATES HISTORY FOUND BUT IT WAS IN 2002. 3. AFTER THE CHEMOTHERAPY, I WAS GIVEN RADIATION ON AND NEAR THE OPERATED AREA NEAR MY HEAD FROM 27 TH MAY, 2002 TO 1 ST JULY, 2002. A TOTAL OF 25 RADIATIONS WERE GIVEN UNDER DR. MANISH JAIN IN I NLAKHS AND BUDHRANI HOSPITAL (PUNE). 4. FROM 2002 TO 2005 MOST OF THE TIME WAS SPENT BY ME AT HOME AS I WAS RECOVERING FROM THE TREATMENT. DURING THIS TIME I HAD MULTIPLE MEDICAL ISSUES LIKE VOMITING, UNEASINESS, BACK ACHE, LOOSE MOTIONS, HEADACHE ETC. VERY OFTEN I USED TO FALL SICK AND I WAS PRONE TO O THER DISEASES. I WAS IN BIG DEPRESSION DURING THIS PERIOD. DURING THIS PERIOD F ROM AUGUST 2002 TO FEBRUARY 2007 I WAS UNDER THE TREATMENT OF DR. VASA NT GHIYA. PLEASE FIND ANNEXED DR. VASANT GHIYAS CERTIFICATE FOR VARIOUS MEDICAL PROBLEMS THAT I WENT THROUGH DURING THIS PERIOD. 5. I WAS LIVING IN A JOINT FAMILY BUT FROM SEPT O CT 2003 ONWARDS DISPUTES AROSE BETWEEN THE FAMILY. MY CHILDREN WERE SMALL AND DUE TO HEALTH REASONS I WAS FINDING EXTREMELY DIFFICULT TO COPE W ITH FAMILY ISSUES AND LITIGATIONS WITH INCOME TAX DEPARTMENT. DURING THIS PERIOD I DID NOT RESPOND TO ANY NOTICES DUE TO ACUTE DEPRESSION CAUSED DUE TO M Y ILL HEALTH AND FAMILY DISPUTES. THE INFORMATION OF FAMILY DISPUTES WAS GI VEN TO THE INCOME TAX DEPARTMENT VIDE LETTER DATED 10 TH OCTOBER 2003, A COPY OF WHICH IS ANNEXED TO THIS AFFIDAVIT. 6. THEREAFTER IN 23 RD OCTOBER, 2007 I WAS SUFFERING FROM SOME RESPIRATORY PROBLEMS, FOR WHICH I WAS CONSULTING DR . MAHENDRA KAWEDIA. AGAIN FOR SIMILAR ISSUES I VISITED DR. MAHENDRA KAWEDIA O N 10 TH APRIL, 2008 AND 9 TH MAY, 2008. I WAS ON MEDICATION FOR ABOUT A MONTH FO R THE RESPIRATORY PROBLEM. 7. ON 25 TH APRIL, 2008 WHILE DRIVING BIKE I LOST CONSCIOUS AN D FELL AND WAS ADMITTED FOR A SINGLE DAY TO SAHYADRI MUNOT PUNE. 8. THEN ON 13 TH AUGUST, 2009 DURING THE SWINE FLU EPIDEMIC, I WAS SUSPECTED TO SUFFER FROM SWINE FLU. ON 13 TH AUGUST AT NAIDU HOSPITAL [PLACE WHERE SWINE FLU PATIENTS WERE DIAGNOSED] I W AS TAKEN THERE. THERE THE DOCTOR ADVISED HIM TO BE KEPT ISOLATED FROM FEW DAY S AND WAS GIVEN OSELTAMAVIR TABLETS. ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) 9. I WAS SUFFERING FROM SENSORY NEUROPATHY AFFECTI NG LOWER LIMBS DURING THE PERIOD 15 TH AUGUST, 2009 TO 21 ST AUGUST, 2009. I WAS ADMITTED IN DEENANATH MANGESHKAR HOSPITAL AND RESEARCH CENTER, PUNE. THERE I WAS UNDER OBSERVATION OF DR. S.V. MANGRULKAR. ALSO D. B HAVE [ORTHOPEDICIAN] AND DR. PUJARI [NEUROLOGIST] WERE TAKING CARE OF ME. 10. FROM 2002 TO TILL TODAY I AM BEING TREATED FOR DIABETES. I HAVE BEEN TAKING TREATMENT FOR THIS FROM HINDUJA HOSPITA L. AFTER THAT FROM 2007 ONWARDS TILL TODAY I AM BEING TREATED BY DR. ABHAY MUTHA FOR THE SAME. 11. RECENTLY AFTER A CHECK UP IN APRIL/ MAY 2013, I T WAS OBSERVED THAT HE HAS FATTY LIVER AND BORDERLINE PROSTATIC E NLARGEMENT. 12. THE ORDER OF THE CIT(A) FOR THE BLOCK ASSESSMEN T APPEAL NO.PN/CIT(A)-I AC CEN. CIR 2(3) PN/11/05-06 WAS SER VED ON 5/4/07. DUE TO THE ABOVE REASONS I WAS NOT IN A POSITION TO TAKE A NY ACTION ON THE SAME. MY OLDER SON ANIKET SANGHVI, CURRENTLY AGED ABOUT 23 Y EARS, STARTED LOOKING INTO MY FILES SO THAT COMPLIANCE FOR ALL PENDING MATTERS COULD BE DONE. HE WAS STUDYING IN COLLEGE UPTO JUNE 2011 AND DUE TO HIS H ECTIC SCHEDULE IN COLLEGE. HE WAS ONLY ABOUT 17 YEARS AND A MINOR. HE WAS STUD YING IN COLLEGE AND HE COULD NOT TAKE UP THE RESPONSIBILITY OF CLEARING MY PENDING ISSUES WHICH I HAD STOPPED SEEING. IT WAS ONLY IN END OF FEBRUARY 2012 THAT HE CAME ACROSS THE ORDER OF THE CIT(A) AGAINST THE BLOCK ASSESSMENT OR DER AND ALSO THE TAX RECOVER NOTICES, TO UNDERSTAND THE IMPORT OF THESE DOCUMENTS HE MET WITH OUR TAX CONSULTANT MR. NEELESH KHANDELWAL FROM MZSK & A SSOCIATES, CHARTERED ACCOUNTANTS. 13. MY SON WAS ADVISED TO FILE AN APPEAL IMMEDIATEL Y WITH THE TRIBUNAL. THE APPEAL HAS BEEN FIELD WITHOUT DELAY A S SOON AS WE COULD UNDERSTAND THE MEANING OF THE ORDER AND SOMEONE FRO M THE FAMILY COULD MAKE ANY FURTHER COMPLIANCE TO IT. 14. THIS AFFIDAVIT IS EXECUTED IN ORDER TO BRING ON RECORD, THE CHRONOLOGICAL FACTS HAPPENED IN MY CASE. IT IS ALSO TO BRING ON RECORD THAT THE DELAY HAS BEEN CAUSED DUE TO REASONABLE CAUSE AND I T IS HUMBLY REQUESTED THAT DELAY CAUSED BE CONDONED AND THE APPEAL FILED BE DECIDED ON MERIT. 3. PERTINENTLY, THE DELAY IS SOUGHT TO BE EXPLAINE D ON THE GROUND OF ASSESSEES INCAPACITY TO ADDRESS TO HIS AFFAIRS HAV ING REGARD TO HIS PROLONGED ILLNESS ON ACCOUNT OF BRAIN TUMOUR, AND BEING PRONE TO OTHER DISEASES, DEPRESSION AND FAMILY DISPUTES, ETC.. THE LEARNED C OUNSEL FOR THE ASSESSEE HAS SUBMITTED, ON THE BASIS OF THE AVERMENTS CONTAI NED IN ASSESSEES AFFIDAVIT, THAT THE DELAY BE CONDONED AS THE DELAY WAS UNINTEN DED AND FOR REASONS BEYOND THE CONTROL OF ASSESSEE. THE LEARNED COUNSEL FURNISHED A NOTE DATED 18.06.2013 BY ONE DR. VASANT GHIYA SAID TO HAVE BEE N ASSOCIATED WITH ASSESSEE FOR THE LAST 20 YEARS, WHEREIN IT IS EXPLA INED THAT DUE TO VARIOUS DISEASES VIZ. BRAIN TUMOUR, SWINE FLU, BACK ACHE, E TC., THE ASSESSEE HAS BEEN CONTINUOUSLY SUFFERING FROM MENTAL DISTURBANCE AND DEPRESSION. THE LEARNED ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) COUNSEL EXPLAINED THAT THE ASSESSEE INDIVIDUAL IS P ART OF A FAMILY WHICH WAS VISITED BY A SEARCH ACTION UNDER SECTION 132(1) OF THE ACT IN OCTOBER 2001. CONSEQUENTIAL ASSESSMENTS WERE MADE IN THE HANDS OF VARIOUS FAMILY CONCERNS AND FAMILY MEMBERS AND THE PRESENT ASSESSM ENT IS ALSO AN OFF- SHOOT OF THE SAME ACTION. THE LEARNED COUNSEL POINT ED OUT THAT OWING TO THE FAMILY DISPUTES SOMEWHERE IN 2003 ASSESSEE SEPARATE D FROM THE FAMILY, A FACT WHICH WAS ALSO BROUGHT TO THE NOTICE OF THE INCOME TAX DEPARTMENT BY WAY OF WRITTEN COMMUNICATION, A COPY OF WHICH IS PLACED ON RECORD. IT IS CONTENDED THAT IN THE CASE OF OTHER FAMILY MEMBERS IDENTICAL ASSESSMENTS HAVE BEEN MADE WHEREIN THE RESPECTIVE ASSESSEES HAD CHALLENGE D THE VALIDITY OF ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE UNDER SECTION 158BD OF THE ACT. SUCH ASSESSMENTS ALSO TRA VELED TO THE TRIBUNAL AND VIDE ORDER DATED 28.02.2011 IN ITA NOS.463 & OTHERS /PN/2007 IN THE CASE OF SHRI POATIAL MALAJI SANGHVI, HUF AND OTHERS, ISSUES HAVE BEEN SENT BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATION AFRESH. EVE N IN THE PRESENT CASE, THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE PASSED SIMILAR ORDERS AND THE ISSUE IS PRIMARILY COVERED THE DECISION OF THE TRIB UNAL IN THE CASE OF OTHER FAMILY MEMBERS OF THE ASSESSEE VIDE ORDER DATED 28. 02.2011 (SUPRA). ON THIS BASIS, IT IS SOUGHT TO BE MADE OUT THAT DUE TO PECU LIAR FACTS AND CIRCUMSTANCES OF THE ASSESSEE, THE CAPTIONED APPEALS COULD NOT BE FILED IN TIME BEFORE THE TRIBUNAL. AT THE TIME OF HEARING, THE LEARNED COUNS EL HAS ALSO RELIED UPON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS. MST. KATIJI & OTHERS (1987) 167 ITR 471 (SC) TO CONTEND THAT THE LIBERAL APPROACH BE ADOPTED WHILE DEALING WITH THE PLEA OF THE ASSESSEE. 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE APPEARING FOR THE REVENUE HAS SUBMITTED THAT IT IS A CASE OF AN INORDINATE DELAY AND THEREFORE THE DISTINCTION HAS TO BE DRAWN IN CASES WHERE THE DELAY IS OF ONLY FEW DAYS. ACCORDING TO THE LEARNED DEPARTMENTAL REP RESENTATIVE, THE HONBLE SUPREME COURT IN THE CASE OF VEDABAI ALIAS VAIJAYAN TABAI BABURAO PATIL VS. ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) SHANTARAM BABURAO PATIL & OTHERS (2002) 253 ITR 798 HAS POINTED OUT THAT WHERE THE DELAY IS ONLY OF A FEW DAYS, THE APPROACH IN CONDONING THE DELAY CAN BE OF LIBERAL NATURE BUT IN CASES OF INORDINATE DELAY, THE DISCRETION TO CONDONE THE DELAY HAS TO BE STRICTLY CONSTRUED. A R EFERENCE WAS ALSO MADE TO THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN TH E CASE OF ORNATE TRADERS PVT. LTD. VS. ITO (2009) 312 ITR 193 (BOMBAY) FOR T HE PROPOSITION THAT IN THE CASES WHERE THE DELAY IS OF MORE THAN ONE YEAR, THE SAME SHOULD BE CONDONED ONLY ON GROUNDS OF PRESSING REASONS. IN TH IS MANNER, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE PLEA OF THE ASSESSEE FOR CONDONATION OF DELAY IN FILING OF THE APPEAL. 5. IN OUR CONSIDERED OPINION, AFTER CONSIDERING THE FACTS OF THE CASE, WHICH HAVE BEEN AVERRED BY WAY OF AN AFFIDAVIT, THERE IS NO INDICATION OF ANY MALA- FIDE OR ULTERIOR PURPOSE OF THE ASSESSEE IN DELAYING TH E FILING OF APPEAL BEFORE THE TRIBUNAL. WE ARE CONSCIOUS THAT THE DELAY IS OF 1,765 (APPROX) NUMBERS OF DAYS WHICH IS SUBSTANTIAL. HOWEVER, WHAT IS OF ESSE NCE IS NOT THE LENGTH OF THE DELAY BUT THE ENTIRE SET OF FACTS AND CIRCUMSTANCES WHICH LEAD TO THE DELAY, WHICH HAVE TO BE CONSIDERED WHILE CONSTRUING AS TO WHETHER THE ASSESSEE WAS PREVENTED BY A SUFFICIENT CAUSE IN FILING OF THE AP PEAL IN TIME. NOTABLY, THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TAJ SATS A IR CATERING LTD. VS. CIT, ITA NO.1096 OF 2012 DATED 13.08.2012 WAS CONSIDERIN G A CASE WHERE THE APPEAL WAS FILED AFTER A DELAY OF 1,195 DAYS. THE A SSESSEE HAD EXPLAINED THAT THE DELAY IN FILING OF APPEAL BEFORE THE HONBLE HI GH COURT WAS ON ACCOUNT OF ITS MISCONSTRUCTION OF THE ORDER OF THE TRIBUNAL. T HE ASSESSEE HAD CONSTRUED THE ORDER OF THE TRIBUNAL IN A MANNER IN TERMS OF W HICH IT WAS THOUGHT THAT THE ISSUE WAS REMITTED BACK TO THE FILE OF THE ASSESSIN G OFFICER INCLUDING ON THE POINT OF GOODWILL, WHICH WAS OSTENSIBLY ADJUDICATED AGAINST THE ASSESSEE IN THE ORDER AND THE REMAND TO THE ASSESSING OFFICER D ID NOT COVER SUCH A POINT. THE HONBLE HIGH COURT NOTED THAT THE ASSESSEE HAD WRONGLY CONSTRUED THE ORDER OF THE TRIBUNAL BUT DID NOT FIND THE MISCONST RUCTION AS MALA-FIDE OR ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) NEGLIGENT. THE HONBLE HIGH COURT FOUND IT FIT TO C ONDONE THE SUBSTANTIAL DELAY IN FILING OF APPEAL WHICH WAS OF 1,195 DAYS. WE ARE ONLY TRYING TO EMPHASISE THAT IT IS NOT MERELY THE LENGTH OF THE DELAY BUT T HE BONA-FIDE AND THE REASONABILITY OF THE CIRCUMSTANCES WHICH LEAD TO TH E DELAY, WHICH ARE OF IMPORTANCE. THE HONBLE SUPREME COURT IN THE CASE O F MST. KATIJI & OTHERS (SUPRA) HAS EXPLAINED IN THE CONTEXT OF THE EXPRESS ION SUFFICIENT CAUSE THAT IT REFERS TO ENABLING THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SERVES THE ENDS OF JUSTICE. PERTINENTLY, AS PER THE HONBLE SUPREME COURT, IN SITUATIONS WHERE SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED AND ALSO A LIBERAL APPROACH IN SUCH SITUATIONS IS A LSO JUSTIFIED. IN THIS CASE, WHEN THE REASONS EXPLAINED BY THE ASSESSEE ARE NOT FOUND MALA-FIDE OR A DEVICE TO COVER ANY ULTERIOR PURPOSE, IN OUR VIEW A LIBERAL APPROACH AS ENSHRINED IN THE JUDGEMENT OF THE HONBLE SUPREME C OURT IN THE CASE OF MST. KATIJI & OTHERS (SUPRA) DESERVES TO BE ADOPTED TO C ONSIDER THE SUFFICIENCY OF THE CAUSES OF DELAYS. WE MAY EMPHASISE HERE THAT AF ORESAID APPROACH IS GUIDED BY THE PECULIAR FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE SATISFIED THAT THE REASONS EXPLAINED BY THE ASSESSEE ARE BONA-FIDE AND SUFFICIENT, WHICH PREVENTED THE ASSESSEE FROM FILING THE APPEAL IN TI ME BEFORE THE TRIBUNAL. ACCORDINGLY, IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY OF 1,765 (APPROX) DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL. 6. THE RELIANCE PLACED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE JUDGEMENT OF THE BOMBAY HIGH COURT IN THE CASE OF O RNATE TRADERS PVT. LTD. (SUPRA) DOES NOT HELP THE REVENUE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. IN THE CASE BEFORE THE HONBLE BOMBAY HIGH COURT ISSUE RELATED TO DELAY IN FILING OF APPEALS BY THE REVENUE IN A L ARGE NUMBER OF CASES AND IT WAS FOUND THAT THERE WAS NO SPECIFIC AVERMENT MADE BY THE REVENUE TO EXPLAIN THE DELAY. QUITE CLEARLY THE PRESENT CASE S TANDS ON A DIFFERENT FOOTING, ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) HAVING REGARD TO THE EXPLANATIONS FURNISHED BY THE ASSESSEE. SIMILARLY, THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANTABAI BABURAO PATIL (SUPRA) RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT MILITATE AGAINST OUR DECISI ON CONDONING THE DELAY IN THE PRESENT CASE. THE HONBLE SUPREME COURT ITSELF NOTICED THAT NO HARD AND FAST RULE CAN BE LAID DOWN WITH REGARD TO THE CONDO NATION OF DELAY AND THAT EACH COURT HAS TO EXERCISE ITS DISCRETION ON THE FA CTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANC E. IN OUR HUMBLE OPINION IN THE PRESENT CASE BY KEEPING IN MIND THE PRINCIPLES OF ADVANCING SUBSTANTIAL JUSTICE, THE DELAY DESERVES TO BE CONDONED. WE HOLD SO. 7. NOW, WE MAY PROCEED TO ADJUDICATE THE ISSUE ON M ERITS. IN THIS CONTEXT, THE LEARNED COUNSEL REFERRED TO THE FOLLOWING GROUN D OF APPEAL NO. 1 RAISED IN THE MEMO OF APPEAL : - ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF LAW, IT BE HELD THAT THE ORDER PASSED BY THE ASSESSING OFFICER, AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX (AP PEALS)-1, IN TERMS OF PROVISIONS OF SEC. 158BC(C) R.W.S. 158D OF THE I T ACT, 1961 IS INVALID, ILLEGAL AND NOT TENABLE IN LAW AND IS WITHOUT ASSUMING JURI SDICTION BY THE ASSESSING OFFICER IN TERMS OF RELEVANT PROVISIONS OF THE ACT. IT FURTHER BE HELD THAT THE ASSESSING OFFICER DID NOT COMPLY WITH THE REQUIREME NT OF THE RELEVANT PROVISIONS OF THE ACT TO ASSUME VALID JURISDICTION TO COMMENCE THE ASSESSMENT AND FOR PASSING THE ORDER THEREUNDER. TH E ORDER PASSED BE CANCELLED. 8. ON THIS ASPECT, THE LEARNED COUNSEL SUBMITTED TH AT THE FACTS AND CIRCUMSTANCES ARE IDENTICAL TO THOSE CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 28.02.2011 (SUPRA) IN THE CASES OF OTHER FAMI LY MEMBERS. IT IS CONTENDED THAT IN THE PRESENT CASE ALSO ASSESSEE IS CHALLENGING THE VALIDITY OF THE ASSESSMENT BASED ON THE PLEA THAT THE NOTICE IS SUED UNDER SECTION 158BD DATED 16.10.2003 WAS BAD IN LAW, FOR THE SAME REASO NS AS IN THE CASES OF OTHER FAMILY MEMBERS DEALT WITH IN THE ORDER OF THE TRIBUNAL DATED 28.02.2011 (SUPRA). LEARNED COUNSEL SUBMITTED THAT THE ISSUE B E DECIDED IN THE SAME ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) MANNER IN THIS CASE ALSO. ON THE OTHER HAND, WITH R EGARD TO THE AFORESAID SUBMISSIONS, THE LEARNED DEPARTMENTAL REPRESENTATIV E HAS NOT CONTESTED THAT THE SIMILAR ASPECT HAS BEEN CONSIDERED BY THE TRIBU NAL VIDE ORDER DATED 28.02.2011 (SUPRA). 9. AS IT WAS A COMMON GROUND BETWEEN THE PARTIES TH AT THE ISSUE RAISED IN GROUND OF APPEAL NO. 1 IS IDENTICAL TO THAT DEALT W ITH BY THE TRIBUNAL VIDE ORDER DATED 28.02.2011 (SUPRA), HEREIN ALSO FOLLOWING THE DECISION OF THE TRIBUNAL THE MATTER IS SENT BACK TO THE FILE OF THE CIT(A) T O BE ADJUDICATED AFRESH IN ACCORDANCE WITH DIRECTIONS OF THE TRIBUNAL CONTAINE D IN ITS ORDER DATED 28.02.2011 (SUPRA). 10. THE ISSUE RAISED BY THE ASSESSEE IN GROUND OF A PPEAL NO. 3 RELATES TO THE ADDITIONS ON ACCOUNT OF STOCK MADE BY THE ASSES SING OFFICER. SINCE THE ISSUE RELATING TO THE VALIDITY OF THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER RAISED BY WAY GROUND OF APPEAL NO. 1 WHICH GOES TO THE ROOT OF THE MATTER, HAS BEEN SENT BACK TO THE FILE OF THE CIT(A ) TO BE DECIDED AFRESH, ON THIS ASPECT ALSO, THE MATTER IS REMANDED BACK TO TH E FILE OF THE CIT(A) FOR RE-ADJUDICATION AFRESH IN ACCORDANCE WITH LAW AFTER ADJUDICATING UPON THE PRELIMINARILY GROUND OF THE ASSESSEE, REGARDING THE VALIDITY OF JURISDICTION ASSUMED BY THE ASSESSING OFFICER. 11. IN THE RESULT, THE CAPTIONED APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 25 TH JUNE, 2013 ITA NO.545/PN/2011 SURESH ONKARMAL SANGHVI A.Y. 1996-97 TO 2 002-03 (PART) SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE