Parvati Ramani, CHENNAI V. ITO, CHENNAI

ITA 57/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61019 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 11-01-2012
• Result in Favour of: Set Aside
• Court: TRIBUNAL
• Department Lawyers: DR YOGESH KAMAT
• Assessee Lawyers: K BALASUBR AMANIAN
• Keywords: Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NO. 57/MDS/2012 (ASSESSMENT YEAR : 2005-06) SMT. PARVATHI RAMANI, FLAT NO.A-408, LAND MARK RESIDENCY, MADINAGUDA, HYDERABAD 500 050. PAN : AAFPP1664A (APPELLANT) V. THE INCOME TAX OFFICER, WARD IV(3), CHENNAI - 600 034. (RESPONDENT) APPELLANT BY : SHRI K. BALASUBRAMANIAN, ADVOCATE RESPONDENT BY : DR. YOGESH KAMAT, SR. DR DATE OF HEARING : 17.04.2012 DATE OF PRONOUNCEMENT : 17.04.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL, GRIEVANCE OF THE ASSESSEE IS THAT CIT(APPEALS) HELD ASSESSEE TO HAVE FILED HER APPEAL WITH A DELAY OF MORE THAN FIVE MONTHS AND REFUSED TO CONSIDER THE APPEAL ON MERITS . AS PER THE ASSESSEE, THERE WAS NO SUCH DELAY AT ALL. 2. SHORT FACTS APROPOS ARE THAT LD. CIT(APPEALS) FO UND THAT THE ASSESSEE HAD FILED THE APPEAL ON 30.6.2008, WHEREAS , ORDER OF ASSESSMENT UNDER SECTION 143(3) OF INCOME-TAX ACT, 1961 (IN SHORT 'THE 2 I.T.A. NO. 57/MDS/12 ACT') WAS PASSED BY THE ASSESSING OFFICER ON 28.12. 2007. AS PER LD. CIT(APPEALS), NO SUFFICIENT REASON WAS SHOWN BY THE ASSESSEE FOR FILING THE APPEAL WITH SUCH A DELAY. LD. CIT(APPEALS) ALS O NOTED THAT ASSESSEE HAD ALSO NOT FILED ANY APPLICATION FOR CON DONATION OF DELAY. LD. CIT(APPEALS) THUS DID NOT ADMIT THE APPEAL FILED BY THE ASSESSEE, AND DISMISSED IT. 3. NOW BEFORE US, LEARNED A.R., ASSAILING THE ORDER OF LD. CIT(APPEALS), SUBMITTED THAT IN FORM NO.35, IT WAS CLEARLY MENTIONED AT COL.7 THAT THE DATE OF RECEIPT OF THE ASSESSMENT OR DER WAS 26.6.2008. ASSESSEE HAD FILED APPEAL ON 30.6.2008 AND THEREFOR E, THERE WAS NO DELAY WHATSOEVER. RELYING ON AN AFFIDAVIT FILED BY THE CHARTERED ACCOUNTANT OF THE ASSESSEE, LEARNED A.R. STATED THA T THE ASSESSMENT ORDER NEVER REACHED THE ASSESSEE, SINCE ASSESSEE HA D GONE TO HYDERABAD FOR UNDERGOING A HEART OPERATION. ACCORD ING TO HIM, THE CHARTERED ACCOUNTANT, WHEN HE APPEARED BEFORE THE A SSESSING OFFICER, DURING ANOTHER PRE-REASSESSMENT PROCEEDINGS, HAD RE CEIVED THE ASSESSMENT ORDER AND THIS HAPPENED ONLY ON 26.6.200 8. THEREFORE, LEARNED A.R. STRONGLY ARGUED THAT THE MATTER HAS TO GO BACK TO LD. CIT(APPEALS) FOR FRESH CONSIDERATION. 4. PER CONTRA, LEARNED D.R. STRONGLY SUPPORTED THE ORDER OF LD. CIT(APPEALS). 3 I.T.A. NO. 57/MDS/12 5. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THE CHARTERED ACCOUNTANT OF THE ASSESSEE HAD FILED AN AFFIDAVIT WHICH RUNS AS UNDER:- I, P.N. NEELAKANTAN, SON OF LATE P.N. NARAYANA IYER , AGED ABOUT 71 YEARS, RESIDING AT H 17/8, HIG FLATS, KALAKSH ETRA COLONY, BESANT NAGAR, CHENNAI - 600 090, DO HEREBY SOLEMNLY AND SI NCERELY AFFIRM AND STATE AS FOLLOWS: THAT I AM A PRACTICING CHARTERED ACCOUNTANT FOR THE LAST 38 YEARS AND MY PRESENT OFFICE ADDRESS IS AT NO.110 (250), ROYAPETTAH HIGH ROAD, CHENNAI - 600 014. THAT MRS. PARVATHI RAMANI FORMERLY IN CHENNAI AND N OW AT HYDERABAD IS MY CLIENT AND HAVING BEEN FILING HER R ETURNS AND REPRESENTING HER BEFORE INCOME-TAX AUTHORITIES FOR T HE LAST 25 YEARS. THAT FOR THE ASSESSMENT YEAR 2005-06 ASSESSMENT ORDER IN HER CASE WAS PASSED ON 28.12.2007 AND SENT TO HER BESANT NA GAR, CHENNAI - 600 090 ADDRESS BUT THE SAME WAS RETURNED UNSER VED BECAUSE BY THAT TIME SHE WAS AT HYDERABAD WHERE SHE WAS HOSPITALIZED AND UNDERWENT HEART OPERATION. SHE IS NOW PERMANENTLY AT HYDERABAD. DURING THE COURSE OF PRE-REASSESSMEN T PROCEEDINGS, WHEN I APPEARED BEFORE THE THEN ASSESSING OFFICER, THE RETURNED ASST. ORDER DEMAND NOTICE ETC. WERE SERVED ON ME AC ROSS THE TABLE ON 26.6.2008. I REMEMBER TO HAVE INDICATED THIS DATE AS DATE OF RECEIPT IN THE COPY OF THE ASST. ORDER. IMMEDIATEL Y, THEREAFTER AND WITHIN 30 DAYS, I FILED AN APPEAL BEFORE CIT(A) VIII CHENNAI. THAT FROM THE DATE OF ABOVE SERVICE ON ME, APPEAL H AVING BEEN FILED WITHIN 30 DAYS, THERE IS NO DELAY IN FILING THE SAME. EVEN OTHERWISE, THE DELAY IF ANY, (NEARLY 5 MONTHS) MAY K INDLY BE CONDONED IN VIEW OF THE HOSPITALIZATION AND HEAR OPERATION OF THE APPELLANT AT HYDERABAD, WHICH PREV ENTED HER TO BE IN CHENNAI AND FILE THE APPEAL ON TIME. SOLEMNLY AFFIRMED AT CHENNAI ON THIS 7 TH DAY OF JANUARY 2012. 4 I.T.A. NO. 57/MDS/12 IN FORM NO.35, BEING THE APPEAL MEMORANDUM FILED BE FORE CIT(APPEALS), ASSESSEE HAD MENTIONED THAT THE DATE OF RECEIPT OF ASSESSMENT ORDER AS 26.6.2008. IF WE RECKON FROM T HAT DATE, THE APPEAL HAVING BEEN FILED ON 30.6.2008 WAS VERY WELL WITHIN THE THIRTY DAYS TIME ALLOWED UNDER STATUTE. WE DO NOT FIND ANY REASON T O DOUBT THE VERACITY OF THE AFFIRMATION OF THE CHARTERED ACCOUNTANT SHRI P.N. NEELAKANTAN IN THE AFFIDAVIT. LD. CIT(APPEALS) HAS IGNORED THE CO L.NO.7 OF FORM NO.35 FILED BEFORE HIM AND TOOK A PRESUMPTION THAT ASSESS ING OFFICER HAVING PASSED THE ASSESSMENT ORDER ON 28.12.2007, THERE WA S A DELAY IN FILING THE APPEAL. WE ARE OF THE OPINION THAT THERE WAS N O SUCH DELAY. LD. CIT(APPEALS) WAS DUTY BOUND TO CONSIDER THE APPEAL OF THE ASSESSEE ON MERITS. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND REMIT THE APPEAL OF THE ASSESSEE BACK TO THE FILE OF LD. CIT(APPEALS) FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 17 TH APRIL, 2012. SD/- SD/- (CALLA NAGENDRA PRASAD) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 17 TH APRIL, 2012. KRI. 5 I.T.A. NO. 57/MDS/12 COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-VIII, CHENNAI (4) CIT-VI, CHENNAI-34 (5) D.R. (6) GUARD FILE