Mrs. Kulwinder Kaur, Ambala V. ITO, Ambala

ITA 572/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9840 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Condonation of delay
• Section: 143(3); 68; 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMC CHANDIGARH BEFORE SHRI GEORGE GEORGE K. JUDICIAL MEMBER ITA NOS.571 & 572 /CHD/2016 (ASSESSMENT YEAR: 2009-10) MRS.KULWINDER KAUR, VS. THE INCOME TAX OFFICER, VPO DINARPUR, TEH.SAHA, WARD-3, DISTT. AMBALA. AMBALA. PAN NO. APUPK6290B (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 28.06.2016 DATE OF PRONOUNCEMENT : 29.06.2016 O R D E R THESE TWO APPEALS AT THE INSTANCE OF THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS O F COMMISSIONER OF INCOME TAX (APPEALS)-2, GURGAON DAT ED 3.3.2016 AND 1.3.2016. THE RELEVANT ASSESSMENT YEA R IS 2009-10. 2. SINCE COMMON ISSUE IS RAISED IN THESE APPEALS AND THESE PERTAIN TO THE SAME ASSESSEE, THEY WERE H EARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 2 3. THE SOLITARY ISSUE IS RAISED IN BOTH THE APPEALS, NAMELY WHETHER THE CIT (APPEALS) IS JUSTIFIED IN DI SMISSING THE APPEAL IN LIMINE WITHOUT CONDONING THE DELAY IN FILING THE APPEAL UNDER SECTION 246 OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT). 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS FO LLOWS: THE ASSESSEE IS A LADY RUNNING DAIRY FARM. FOR T HE RELEVANT ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED ON 29.3.2003 DECLARING AN INCOME OF RS.1,78,000/-. THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMP LETED ON 27.12.2011 BY FIXING THE TOTAL INCOME AT RS.5,78,00 0/-. THE ASSESSING OFFICER MADE AN ADDITION OF RS.4 LACS BEI NG UNEXPLAINED CASH DEPOSITS IN ASSESSEES BANK ACCOUN T. CONSEQUENT TO THE COMPLETION OF THE ASSESSMENT, PEN ALTY UNDER SECTION 271(1)(C) OF THE ACT WAS ALSO IMPOSED AMOUNTING TO RS.75,400/-. 5. AGGRIEVED BY THE ASSESSMENT ORDER ADDING A SUM OF RS.4 LACS BEING CASH DEPOSITS IN THE BANK ACCOUNT A ND IMPOSITION OF PENALTY AMOUNTING TO RS.75,400/- UNDE R SECTION 271(1)(C) OF THE ACT, THE ASSESSEE PREFERRED APPEAL S BEFORE THE CIT (APPEALS). THERE WAS A DELAY OF 29 MONTHS IN F ILING THE APPEAL AGAINST THE PENALTY ORDER AND DELAY OF 35 MO NTHS IN FILING APPEAL AGAINST THE ASSESSMENT ORDER. THE CI T (APPEALS) DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINE WIT HOUT CONDONING THE DELAY IN FILING THE APPEALS UNDER SEC TION 246 OF THE ACT. 3 6. THE ASSESSEE, BEING AGGRIEVED BY THE ORDER OF T HE CIT (APPEALS), IS IN APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAD FILED AN ADJOURNMENT APPLICATION, WHICH WAS REJ ECTED AND THE APPEALS WERE HEARD, AFTER HEARING THE LEARNED D .R. 7. I HAVE HEARD THE LEARNED D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS A DELAY OF 29 MONTHS AND 35 MONTHS IN FILING THE APPEALS BEFORE THE FIRS T APPELLATE AUTHORITY. THE ASSESSEE HAD FILED A PETITION AND S UPPORTING AFFIDAVIT BEFORE THE FIRST APPELLATE AUTHORITY FOR CONDONING THE DELAY IN FILING THE APPEALS UNDER SECTION 246 OF TH E ACT. THE REASONS STATED IN THE AFFIDAVIT READ AS FOLLOWS : 'THIS PETITION IS BEING FILED WITH YOUR HONOUR TO P REY FOR THE CONDONATION OF DELAY IN FILING THE APPEALS UNDER DI FFERENT SECTIONS OF THE INCOME TAX ACT OF THE ASSESSES RELEVANT TO A..Y. 2009-10. WE WISH TO SUBMIT THE FOLLOWING FACTS FOR YOUR HONOUR'S. KI ND CONSIDERATION. 1. THAT THE ASSESSEE SMT. KULWINDER IS ALMOST AN IL LITERATE LADY. SHE HAS STUDIED ONLY UPTO 5 TH CLASS. 2. THAT HER HUSBAND SH. DAVINDER SINGH WAS OUT OF INDIA DURING ASST. YEAR 2009-10. 3. THAT THE ASSESSEE SMT. KULWINDER KAUR ALSO WANTE D TO GO ABROAD TO JOIN HER HUSBAND. 4. THAT FOR THE PURPOSE SHE APPROACHED ONE SH. AMIT JAIN RESIDENT OF 27, BANK COLONY, AMBALA CITY. SH. AMIT JAIN WAS CLOSE FRIEND OF HER HUSBAND SH. DAVINDER SINGH. 4 5. THAT SH. AMIT JAIN BEING CLOSE FAMILY FRIEND OFFERED HER COMPLETE HELP IN GETTING VISA & TICKETS ETC. FOR HER. 6. THAT IN THE ABSENCE OF HER HUSBAND; SMT. KULWIND ER KAUR WAS TOTALLY DEPENDENT UPON SH. AMIT JAIN FOR A LL THE LEGAL AND FINANCIAL MATTERS. 7. THAT ASSESSE'S CASE FOR ASST. YEAR 2009-10 WAS ASSESSED BY THE LEARNED ITO, WARD~3, AMBALA VIDE HI S ORDER DATED 27.12.2011, THIS ORDER WAS DELIVERED TO THE ASSESSEE ON 29.12.2011. 8. THAT DURING ASSESSMENT PROCEEDINGS SH. AMIT JAIN WAS TOTALLY INVOLVED IN HER CASE. AMIT JAIN'S STATEMENT WAS ALSO RECORDED ON 01.12.2011 BY THE LEARNED ASSESSING OFFICER. 9. THAT SHE HAD HANDED OVER HER ASSESSMENT ORDER AN D THE OTHER DOCUMENTS TO SH. AM IT JAIN FOR FILING: F URTHER APPEALS WITH THE DEPARTMENT. 10. THAT SH. AMIT JAIN HAD FALLEN SERIOUSLY ILL WITH PARALYTIC ATTACK IN JANUARY 2012 AND DUE TO THIS SERIOUS ILLNESS HE WAS ADMITTED TO P.G.I, CHANDIGARH AND WAS TOTALLY BED RIDDEN AND WAS UNABLE TO SPEAK OR TO WRITE. 11. THAT EVEN NOW HE IS NOT TOTALLY RECOVERED AND IS 'UNDER CONSTANT MEDICAL TREATMENT. 12. THAT AFTER GREAT EFFORTS; SHE WAS ABLE TO GET H ER INCOME TAX PAPERS FROM HIM AND HAD FILED HER APPEALS ON AL L THE ORDERS RELATING TO ASST. YEAR 2009-10 WITH YOUR HONOUR. 13. THAT IN THIS WHOLE PROCESS; HER APPEALS COULD N OT HE FILED WITHIN THE ALLOWED TIME. 5 THAT AS PER ABOVE FACTS & CIRCUMSTANCES; YOUR HONOU R WILL FIND THAT THE ASSESSES PREVENTED WITH SUFFICIENT REASONS IN NOT FILING THE APPEALS WELL WITHIN TIME ALLOWED. WE PRAY BEFORE YOUR HONOUR TO PLEASE EXERCI SE YOUR AUTHORITY AND CONDONE THE DELAY IN FILING THE APPEALS. MAY WE TAKE THE LIBERTY OF DRAWING YOUR HONOUR'S KIND ATTENTION TO THE JUDGMENT OF HONOURABLE SUPREME COURT IN CASE, OF COLLECTOR LAND ACQUISITION VS. MST, KATIJIAORS, (1987) 62 CTR (SC) 23 : (1987) 167 ITR 471 (SC). THE RELEVANT PARAS ARE BEI NG REPRODUCED HEREUNDER: I. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT B Y LODGING AN APPEAL LATE, REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED, AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. II. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. III. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS SERIOUS RISK. IV. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6 THE JUDGMENT OF SUPREME COURT IS VERY CLEAR REGARDIN G THE SUBJECT. WE ALSO WISH TO SUBMIT THAT SIMULTANEOUSLY APPEALS AGAINST ORDER U/S 27ID AND 271E OF THE INCOME TAX ACT WERE F ILED BY THE OSSESSEE ON 30.12.2014. SIMILAR APPLICATION FAR COND ONATION OF DELAY WAS ALSO FILED WITH THE HON'BLE CIT (APPEALS), PANC HKULA. BOTH THE APPEALS OF THE ASSESSES HAVE BEEN DECIDED I N FAVOUR OF THE ASSESSEE AFTER CONDONING THE DELAY IN FILLING THE APPEAL. (COPY OF THE ORDERS ENCLOSED). YOUR HONOUR WILL PLEASE APPRE CIATE THAT IN THE LIGHT OF CIRCUMSTANCES AND LEGAL DECISIONS AS STA TED ABOVE ASSESSEE'S APPEAL DESERVES TO BE ADMITTED FROM YOUR KI ND HANDS.' 8. ADMITTEDLY, THE ASSESSEE IS AN ILLITERATE LADY WHO HAD STUDIED ONLY UPTO 5 TH STANDARD. THE ASSESSEE CLAIMS TO HAVE GIVEN THE PAPERS FOR FILING THE APPEAL TO SHRI AMIT JAIN, WHO HAD FALLEN SICK AND HAD ADMITTED TO P.G.I., CHA NDIGARH. THE REASONS STATED FOR THE DELAY IN FILING THE APPE ALS BEFORE THE CIT (APPEALS) CANNOT BE TOTALLY BRUSHED ASIDE A S FALSE. THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJIA ORS. (1987) 167 ITR 47 1 (SC) HAD HELD THAT ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VER Y THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED . IN THE INSTANT CASE, THE ADDITION MADE UNDER SECTION 68 OF THE ACT, IS AMOUN TING TO RS.4 LACS AND THE PENALTY IS ALSO IMPOSED ON THE AD DITION MADE UNDER SECTION 68 OF THE ACT. THE ASSESSEE BEI NG ILLITERATE LADY, I AM OF THE VIEW THAT IN THE INTER EST OF JUSTICE AND EQUITY, THE DELAY IN FILING THE APPEALS BEFORE THE CIT (APPEALS) IS TO BE CONDONED AND I CONDONE THE SAME. THE 7 APPEALS ARE RESTORED TO THE CIT (APPEALS) FOR DISPO SAL OF THE ISSUE ON MERITS. THE ASSESSEE ON HER PART SHALL CO OPERATE WITH THE CIT (APPEALS) AND SHALL FURNISH THE NECESS ARY MATERIAL FOR THE EXPEDITIOUS DISPOSAL OF THE APPEAL S AND SHALL NOT SEEK UNNECESSARY ADJOURNMENT IN THE MATTER. IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT, THE BOTH APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JUNE, 2016 SD/- (GEORGE GEORGE K.) JUDICIAL MEMBER DATED : 29 TH JUNE, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH