BHAVESH GHANSHYAM ADVANI, MUMBAI V. CIT(INTL TAX)-1, MUMBAI

ITA 5808/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9747 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 12-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JUCINTA ZIMIK VASHAIDR
• Assessee Lawyers: AAKRITI SETH
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NOS.5808 & 5809/MUM/2017 ASSESSMENT YEARS: 2011-12 & 2012-13 BHAVESH GHANSHYAM ADVANI, 1101, TOWER NO.2, SAKET TOWERS HOUSE, KISHIN KOLI MARG, EXTN SAKET, PIER, THANE-400601 / VS. CIT(INT. TAX)-1, R. NO.107, 1 ST FLOOR, SCINDIA HOUSE, N. M. ROAD, BALLARD, MUMBAI-400038 ( !'# /ASSESSEE) ( $ / REVENUE) P.A. NO.ASHPSA4344A !'# / ASSESSEE BY SHRI AAKRITI SETH $ / REVENUE BY MS. JUCINTA ZIMIK VASHAI-DR % $& ' #( / DATE OF HEARING : 10/09/2018 ' #( / DATE OF PRONOUNCEMENT 10/09/2018 ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 14/06/2017 OF THE LD. COMMISSIONER OF INCOME TAX, THANE, ON THE GROUND TH AT THE APPLICATION DATED 22/09/2016 WITH RESPECT TO CONDONATION OF DELAY WAS REJECTED BY THE FIRST APPE LLATE AUTHORITY AND THUS, THE APPEAL WAS TO BE ADJUDICATE D ON MERIT. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, MS. AAKRITI SETH, ADVANCED IDENTICAL GROUNDS BY CON TENDING THAT THE LD. COMMISSIONER OF INCOME TAX, IN THE INT EREST OF JUSTICE, WAS EXPECTED TO CONDONE THE DELAY AND TO ADJUDICATE THE APPEALS ON MERIT. IT WAS ALSO POINTE D OUT THAT ON MERIT, PRIMA-FACIE, THE ASSESSEE IS HAVING A GOOD CASE. ON THE OTHER HAND, THE LD. DR, MS. JUCINTA ZI MIK VASHAI, DEFENDED THE ORDER OF THE LD. COMMISSIONER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN NRI, DECLARED INCOME OF RS.7,66,980/- AND CLAIMED REFUND OF RS.1,46,980/-. THE ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 3 ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY UNDER SECTION 119(2)(B) OF THE ACT BEFORE THE LD. COMMISS IONER. THE ASSESSEE WAS FOLLOWING UP WITH M/S JAINS AND AL LIANCE PALMS VENTURES PVT. LTD. FOR ISSUANCE OF TDS CERTIF ICATE, AS THE TDS WAS DEDUCTED BY THE SAID FIRM TOWARDS INCOM E PAYABLE TO THE ASSESSEE SINCE JANUARY 2013. THE ASS ESSEE WAS PROVIDED TDS CERTIFICATE ONLY ON 06/02/2015. TH E ASSESSEE, BEFORE THE LD. COMMISSIONER, ALSO FURNISH ED EVIDENCES IN THE FORM OF E-MAILS. SINCE, THE ASSESS EE WAS NOT IN POSSESSION OF TDS CERTIFICATE, AS GENERATED BY TRACES AND SINCE 26AS WAS NOT CONCLUSIVE WITH RESPE CT TO THE TDS DEDUCTED AND DEPOSITED AGAINST PAN OF THE ASSESSEE, THE ASSESSEE FACE GENUINE HARDSHIP, WHICH CAUSED DELAY IN FILING THE RETURN/TDS CERTIFICATE. IN VIEW OF THIS FACTUAL MATRIX, THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY BEFORE THE LD. COMMISSIONER. I N THE SAID APPLICATION, THE ASSESSEE ALSO MENTIONED THAT TAXES HAD ALREADY BEEN PAID BUT HE COULD NOT RECEIVED THE TDS FORM FROM THE CONCERNED PARTY EVEN AFTER FOLLOWING THE SAME ON MANY OCCASIONS, DURING THE PERIOD. THIS FAC TUAL MATRIX HAS ALSO BEEN MENTIONED IN PARA-2 OF THE IMP UGNED ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 4 ORDER. SO FAR AS, SUPPLY OF TDS CERTIFICATE IS CONC ERNED, IT WAS THE DUTY OF THE DEDUCTEE PARTY TO PROVIDE TO TH E ASSESSEE. IN THE PRESENT SET OF FACTS, SINCE THE AS SESSEE CONSISTENTLY FOLLOWING WITH THE DEDUCTEE PARTY, WHO GAVE THE CERTIFICATE LATE TO THE ASSESSEE, WHICH WAS BEY OND HIS CONTROL. THE ASSESSEE SHOULD NOT SUFFER FOR THE FAU LT OF OTHERS AND THUS REQUIRES A LENIENT VIEW. 2.2. SO FAR AS, CONDONATION OF DELAY IS CONCERNED, NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRI VILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEAL S ARE TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPROACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA- FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILI NG OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFU SAL TO CONDONE THE DELAY CAN RESULT IN A MERITORIOUS MATTE R BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISC ARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOU NT OF ITS ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 5 POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS B UT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.3. THE HONBLE APEX COURT IN A CELEBRATED DECIS ION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS . 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JU STICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. I F SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-F IDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESSEE, THE DELA Y NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSION SUFFICI ENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS T O APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB-SERVES THE EN D OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTEN CE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 6 CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS AP PROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILA TORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL C ONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX C OURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 196 3 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO P ARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT I S COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COUR T. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.4. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 7 EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERA L CONSTRUCTION. 2.5. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS THE CASE OF THE PRESENT ASSESSEE . HAVING MADE THE AFORESAID OBSERVATION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUDING FROM HON BLE APEX COURT, THE CIRCUMSTANCES NARRATED BY THE ASSES SEE, WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELAY IS CONDONED. 3. SINCE, WE HAVE CONDONED THE DELAY, WE REMAND BOTH THESE APPEALS TO THE FILE OF THE LD. COMMISSIO NER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSE SSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBER TY TO FURNISH NECESSARY EVIDENCE, IF ANY, IN SUPPORT OF I TS CLAIM. ITA NOS.5808 & 5809/MUM/2017 BHAVESH GHANSHYAM ADVANI 8 THUS, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/09/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 10/09/2018 F{X~{T? P.S/. . . , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4# / CIT(A)- , MUMBAI 5. 6$7 # , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8! 9& / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI