Shri Ashwinkumar Hasmukhlal Marwala, Surat V. The Income tax Officer,Ward-2(3), Surat

ITA 579/AHD/2012

• Counselvise Citation: 57920514 RSA 2012
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Depreciation; Condonation of delay; Unabsorbed depreciation
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NOS. 578, 579 & 580/AHD/2012 ASSESSMENT YEAR :2007-08 SATISHKUMAR HASMUKHLAL MARWALA, 3/148, RANA SHERI, INDERPURA, SURAT- 395002 PAN NO. ADBPM2832J ASHWINKUMAR HASMUKHLAL MARWALA, 3/148, RANA SHERI, INDERPURA, SURAT- 395002 PAN NO. ADBPM2833K SHARADKUMAR HASMUKHLAL MARWALA, 3/148, RANA SHERI, INDERPURA, SURAT- 395002 PAN NO. ADBPM2831M V/S . V/S . V/S . THE I.T.O. WARD 2(3), SURAT THE I.T.O. WARD 2(3), SURAT THE I.T.O. WARD 2(3), SURAT (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI MEHUL K. PATEL, A.R. /BY RESPONDENT SHRI ROOPCHAND, SR.D.R. /DATE OF HEARING 09.07.2012 /DATE OF PRONOUNCEMENT 09.07.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THESE ARE THREE APPEALS AT THE BEHEST OF THE ASSESS EES WHICH HAVE EMANATED FROM THE ORDER OF CIT (A)-II, SURAT, ORDER DATED 30.11.2011 FOR ASSESSMENT YEAR 2007-08 . ALL THE APPEALS HAVE CO MMON GROUND OF APPEAL ITA NOS. 578, 579 & 580/AHD/2012 A.Y. 07-08 PAGE 2 I.E. THE CIT(A) DISMISSED THE APPEAL IN LIMINE AND NOT CONDONED THE DELAY OF APPEALS AS THE APPELLANT WAS PREVENTED BY REASONABL E CAUSE. 2. THE FACTS OF THE CASE IS THAT THE LD. A.O. COMPL ETED ASSESSMENT U/S 143(3) OF IT ACT ON 24.12.2009. VARIOUS ADDITIONS WERE MADE BY THE A.O. THE ORDER OF THE A.O. WAS SERVED ON 30.12.2009 ON A LL THE APPELLANTS. THEY HAD TO FILE APPEALS WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF ORDER. THE APPELLANTS FILED APPEALS ON 06.07.2010 WHICH WAS LA TE BY 158 DAYS. THE APPELLANTS FILED AFFIDAVITS SEEKING CONDONATION OF DELAY IN FILING APPEALS. THE REASON GIVEN IS THAT THEY WERE PURSUING ALTERNATE R EMEDY THROUGH APPLICATION U/S 154 FOR ALLOWING SET OFF OF ASSESSED INCOME AGA INST BROUGHT FORWARD UNABSORBED DEPRECIATION WHICH HAD NOT DISPOSED OFF. ANOTHER REASON GIVEN FOR DELAY WAS THAT HIS FATHER WAS KEEPING IN DIFFER ENT HEALTH AND THEY COULD NOT CONCENTRATE ON INCOME TAX MATTERS. THE CIT(A) DID NOT FIND SUFFICIENT REASONS TO CONDONE THE DELAY. 3. BEING AGGRIEVED BY THE ORDER OF THE CIT (A), THE APPELLANTS ARE BEFORE US. THE COUNSEL FOR THE ASSESSEE ARGUED ON FEES PA ID RS.500/-, THIS WAR SHORT BY RS.6790/- IN CASE OF SATISHKUMAR, RS.9302/- IN C SE OF ASHWINKUMAR & RS.2478/- IN CASE OF SHARADKUMAR. HE ARGUED THAT C IT(A) HAS NOT DECIDED THE CASE ON MERIT. HE HAS DRAWN OUT ATTENTION ON S ECTION 253 OF THE IT ACT WHERE FEES FOR OTHER MATTER HAS BEEN PRESCRIBED RS. 500/- ONLY EVEN THAN INCOME COMPUTED BY THE A.O. ARE AS PER SECTION 253( 6)(A), 253(6)(B) & 253(6)(C) OF IT ACT. HE FURTHER CONTENDED THAT THE HONBLE KARNATAKA HIGH COURT IN CASE RAJKAMAL POLYMERS PVT. LTD. 291 ITR 314 HAS HELD IN CASE OF ITA NOS. 578, 579 & 580/AHD/2012 A.Y. 07-08 PAGE 3 APPEAL IN LIMINE AT TIME BARRED AND NOT DECIDED THE APPEAL ON MERIT. THE ASSESSEE HAS RIGHTLY PAID ITAT FEES OF RS.500/- AND THERE IS NO SHORTFALL IN PAYMENT OF FILING FEES. IN PRESENT CASES, THE FACT S ARE SIMILAR AS OF RAJ KAMAL POLYMER PVT. LTD.(SUPRA). THE RATIO LAID DOWN BY T HE HONBLE HIGH COURT IS EQUALLY APPLICABLE ON THESE CASES. THEREFORE, THES E APPEALS ARE MAINTAINABLE. 4. THE CIT(A) HAS NOT DISPOSED OF ABOVE APPEALS ON MERIT BUT DISMISSED THE APPEAL ON THE GROUND OF APPEAL FILED LATE BY 15 8 DAYS. THE APPELLANTS HAD SUFFICIENT REASONS THAT THEIR FATHER HAD IN DIFFERE NT HEALTH AND RECTIFICATION APPLICATIONS WERE ALSO PENDING BEFORE THE A.O. 5. WE HAVE PERUSED THE ORDER OF THE AUTHORITIES BE LOW, HEARD THE ARGUMENTS OF BOTH THE SIDES. WE FIND THAT THE CIT (A) HAD SUFFICIENT REASONS TO CONDONE THE DELAY AND APPEAL SHOULD HAVE HEARD O N MERIT. THEREFORE, WE DIRECT TO CIT(A) THAT THE ASSESSEES APPEALS ARE TO BE DECIDED ON MERIT AFTER CONDONING THE DELAY. ACCORDINGLY, THE ORDER OF CIT (A) IS SET ASIDE FOR DECIDING THE APPEALS ON MERIT FOR DE NOVO. 6. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ITA NOS. 578, 579 & 580/AHD/2012 A.Y. 07-08 PAGE 4 ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION BY HANDWRITING OF THE MEMBER 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 12.07.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION ,, ,, 6) DATE OF INITIAL SIGN BY MEMBERS ,, ,, 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE NO 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 12.07.2012