M/s. SAGAR PREMISES COOPERATIVE SOCIETY LTD., MUMBAI V. DCIT, CPC BANGLORE, BANGLORE

ITA 5735/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7715 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 06-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 20

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER . 5735 / / 20 19 (. . 2015-16 ) ITA NO.5735/MUM/2019 (A.Y.2015-16) M/S SAGAR PREMISES COOPERATIVE SOCIETY LTD., 327, SAGAR PREMISES, NARSHINATHA STREET, KHAREKH BAZAAR, MASJID BUNDER, MUMBAI-400009. PAN: AAMAS0482M ...... / APPELLANT VS. DCIT, CPC, BANGALORE POST BAG NO. 2, ELECTRONIC CITY, POST OFFICE, BANGALORE, BANGALORE-560100 ..... / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SH. SANJAY J. SETHI / DATE OF HEARING : 14/06/2021 / DATE OF PRONOUNCEMENT : 24/08/2021 / ORDER PER VIKAS AWASTHY, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-28 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 24.06.2019 FOR THE ASSESSMENT YEAR (AY) 2015-16. 2 . 5735 / /20 19 (. .2015-16 ) ITA NO.5735/MUM/2019 (A.Y.2015-16) 2. THE ASSESSEE IN APPEAL HAS ASSAILED THE ORDER OF CIT(A) DISMISSING THE APPEAL IN LIMINE ON THE GROUND OF LIMITATION. 3. SH. SANJAY J. SETHI REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WITH A DELAY OF 173 DAYS. THE ASSESSEE FILED AN AFFIDAVIT OF ONE PRAKASH MAHADEV MORE EXPLAINING THE REASONS FOR DELAY IN FILING OF THE APPEAL, HOWEVER, THE SAID AFFIDAVIT WAS NOT CORROBORATED BY ANY EVIDENCE. THE ASSESSEE FAILED TO GIVE SUFFICIENT CAUSE FOR DELAY IN FILING OF THE APPEAL BEFORE THE CIT(A), HENCE, THE APPEAL WAS RIGHTLY DISMISSED ON THE GROUND OF LIMITATION. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DEPARTMENTAL REPRESENTATIVE (DR) AND HAVE EXAMINED THE DOCUMENTS ON RECORD. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE IN PROCEEDING ARISING OUT OF ORDER PASSED UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT]. THE ASSESSEE HAD FILED APPEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT. BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE FILED AN AFFIDAVIT OF PRAKASH MAHADEV MORE WHO WAS LOOKING AFTER/CO-ORDINATING INCOME TAX MATTERS OF THE ASSESSEE. FROM EXAMINATION OF SAID AFFIDAVIT, IT APPEARS THAT PRAKASH MAHADEV MORE IS NOT A REGULAR TAX PRACTITIONER AND IS MERELY ATTENDING THE ROUTINE INCOME TAX FOLLOW UP WORK FOR THE ASSESSEE/APPELLANT. HENCE, HE WAS UNAWARE OF THE REMEDY AVAILABLE TO THE ASSESSEE AGAINST REJECTION OF SECTION 154 APPLICATION TILL THE TIME THE MATTER WAS BROUGHT TO THE NOTICE OF SHRI R.S. AGRAWAL, CHARTERED ACCOUNTANT ON 18.02.2019. IT WAS THEREAFTER, THE GROUNDS OF APPEAL WERE PREPARED AND FILED BEFORE THE CIT(A) ON 26.02.2019. THE REASON GIVEN BY ASSESSEE APPEARS TO BE BONAFIDE. 3 . 5735 / /20 19 (. .2015-16 ) ITA NO.5735/MUM/2019 (A.Y.2015-16) 5. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF RAM NATH SAO V/S. GOBARDHAN SAO & ORS. REPORTED AS [2002] AIR 1201 HAS HELD THAT WHILE CONSIDERING APPLICATION FOR CONDONATIOIN OF DELAY, ACCEPTANCE OF EXPLANATION FURNISHED SHOULD BE THE RULE AND REFUSAL AN EXCEPTION. MORESO, WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDE CAN BE IMPUTED TO THE DEFENDING PARTIES. THE EXPLANATION FURNISHED SHOULD NOT BE REJECTED BY TAKING A PEDANTIC AND HYPER TECHNICAL VIEW ESPECIALLY WHEN STAKES ARE HIGH AND/OR ARGUABLE POINTS OF FACTS AND LAW ARE INVOLVED, CAUSING LOSS AND IRREPARABLE INJURY TO THE PARTIES AGAINST WHOM LIS TERMINATES EITHER BY DEFAULT OR INACTION, DEFEATING VALUABLE RIGHTS OF SUCH PARTY TO HAVE THE DECISION ON MERITS. WHILE CONSIDERING THE MATTER, COURTS HAVE TO STRIKE BALANCE BETWEEN RESULTANT EFFECT OR THE ORDER IT IS GOING TO PASS UPON THE PARTIES EITHER WAY. THE HONBLE APEX COURT FURTHER HELD THAT EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION SO AS TO ADVANCE JUSTICE. IN THE CASE OF COLLECTOR LAND ACQUISITION V/S. MST. KATIJI 167 ITR 471, THE HONBLE APEX COURT HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. 6. THE COURTS HAVE TIME AND AGAIN REITERATED THAT CAUSE OF JUSTICE IS SUPREME AND THE FETTERS TECHNICALITIES SHOULD NOT BURRY THE CAUSE OF JUSTICE. THUS, AFTER CONSIDERING THE EXPLANATION FURNISHED BY THE ASSESSEE CAUSING DELAY IN FILING OF THE APPEAL BEFORE THE CIT(A) AND THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT WHILE CONSIDERING THE EXPLANATION FURNISHED BY THE ASSESSEE CAUSING DELAY IN FILING OF THE APPEAL, WE DEEM IT APPROPRIATE TO 4 . 5735 / /20 19 (. .2015-16 ) ITA NO.5735/MUM/2019 (A.Y.2015-16) CONDONE THE DELAY IN FILING OF APPEAL BEFORE THE CIT(A). THE APPEAL IS RESTORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS. 7. THE CIT(A) SHALL SERVE NOTICE TO THE ASSESSEE ON THE ADDRESS MENTIONED IN FORM-35 AND UPON RECEIPT OF NOTICE, THE ASSESSEE SHALL APPEAR BEFORE THE CIT(A) AND CO-OPERATE IN FIRST APPELLATE PROCEEDINGS. THE CIT(A) SHALL DECIDE THE APPEAL OF ASSESSEE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING, IN ACCORDANCE WITH LAW. 8. IN THE RESULT, IMPUGNED ORDER IS QUASHED AND THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY , THE 24 TH DAY OF AUGUST, 2021. SD/- SD/- (MANOJ KUMAR AGGARWAL) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, / DATED: 24/08/2021 SK, PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT , 2. / THE RESPONDENT. 3. ( )/ THE CIT(A)- 4. CIT 5. , . . . , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI