GARDENPLAST P. LTD, MUMBAI V. ACIT 9(1), MUMBAI

ITA 5876/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55551 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 23-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.5876/MUM/2010 (ASSESSMENT YEAR: 2004-05) GARDENPLAST PVT. LTD., 91, S.V. ROAD, BORIVLI (W), MUMBAI -400 092 ....... APPELLANT VS CIT (A)-10/ ACIT -9(1), R.NO.262, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI -400 020 ..... RESPONDENT PAN: AAACG 3582 A APPELLANT BY: NONE RESPONDENT BY: SHRI A.K. NAYAK DATE OF HEARING: DATE OF PRONOUNCEMENT: 22.09.2011 28.09.2011 O R D E R PER R.S. PADVEKAR, JM: IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-19, MUMBAI DATED 12.04.2010 FOR THE A.Y. 2004-05. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND:- 1. THE LEARNED CIT (A) -19 HAS ERRED IN REJECTING APPEAL ON THE GROUND OF NOT CONDONING THE DELAY MERELY FOR THE RE ASON THAT COPY OF ORDER WAS RECEIVED ON FEBRUARY 15, 200 7 (WITHOUT CERTIFIED TRUE COPY) HOWEVER WITHOUT TAKIN G INTO CONSIDERATION THAT THE TRUE COPY OF THE ORDER WAS O NLY RECEIVED ON MAY 11, 2007 WHICH HAS TO BE ATTACHED W ITH ITA 5876 /MUM/2010 GARDENPLAST PVT. LTD. 2 THE APPEAL FORM AND HENCE THE APPEAL WAS FILED ON M AY 14, 2007 WHICH IS REASONABLE CAUSE TO FILE APPEAL BEYON D CONTROL OF ASSESSEE. 2. BRIEFLY STATED THE FACTS ARE AS UNDER. THE ASSE SSEE IS ENGAGED IN MANUFACTURING OF PLASTIC MOLDED ITEMS. THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ASSESSMENT W AS COMPLETED U/S.143(3) OF THE ACT VIDE ORDER DATED 02.11.2006. 3. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEF ORE THE LD. CIT (A) BY FILING THE APPEAL. THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE LD. CIT (A) AND HENCE, THE ASSESSEE FILE D AN APPLICATION DATED 12.05.2007 FOR CONDONING THE DELAY. IT WAS S TATED BEFORE THE LD. CIT (A) THAT THE ASSESSEE WAS SERVED WITH THE D EMAND NOTICE BUT NO ORDER WAS SERVED ON THE ASSESSEE. THE ASSESSEE SENT THE LETTER TO THE A.O. ON 12.02.2007 FOR GIVING THE COPY OF ASSES SMENT ORDER PASSED U/S.143(3) OF THE ACT. THE A.O. INFORMED TO THE AS SESSEE THAT THE ORDER WAS SENT TO THE ASSESSEE ON 20.12.2006 BUT TH E SAME WAS RETURNED BY THE POSTAL AUTHORITIES AS UN-SERVED. THE A.O. SENT XEROX COPY OF THE ASSESSMENT ORDER ON 15.02.2007 ALONG WI TH XEROX COPY OF THE NOTICE OF DEMAND DATED 02.11.2006. THE ASSESSEE AGAIN SENT THE LETTER TO THE A.O. ON 20.02.2007 ALONG WITH ASSESSE ES NEW ADDRESS. BUT THE A.O. DID NOT SENT THE CERTIFIED COPY OF ASS ESSMENT ORDER. THE ASSESSEE FINALLY GOT CERTIFIED COPY OF THE ORIGINAL ASSESSMENT ORDER ON 11.05.2007. THE LD. CIT (A) WAS NOT CONVINCED WITH THE REASONING OF THE ASSESSEE AND HE DISMISSED THE APPEAL ON THE ISS UE OF THE DELAY FOR NOT PREFERRING THE SAME WITHIN THE TIME LIMIT ON TH E REASON THAT THE ASSESSEE HAS NOT SATISFACTORILY EXPLAINED DELAY IN FILING APPEAL. THE LD. CIT (A) REFUSED TO CONDONE THE DELAY. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD S. WE FIND FROM THE RECORD THAT THE ASSESSMENT ORDER SENT BY T HE A.O. TO THE ITA 5876 /MUM/2010 GARDENPLAST PVT. LTD. 3 ASSESSEE WAS RETURNED UN-SERVED BY THE POSTAL AUTHO RITIES AND ONLY DEMAND NOTICE WAS SERVED. THE ASSESSEE APPLIED TO THE A.O. FOR GETTING THE CERTIFIED COPY OF THE ASSESSMENT ORDER BUT THE SAME WAS GIVEN TO HIM ON 11TH MAY 2007. THE ASSESSEE FILED THE APPEAL ON 14.05.2007. AS PER THE LD. CIT (A) THERE WAS DELAY OF 193 DAYS. SO FAR AS ISSUE OF CONDONATION OF DELAY IS CONCERNED, IN OUR OPINION, THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE EXPL ANATION OF THE ASSESSEE. IN THE CASE OF VEDABAI ALIAS VAIJAYATABA I BABURAO PATIL VS. SHANTARAM BABURAO PATIL AND OTHERS IN 253 ITR 798 ( SC) THE HONBLE SUPREME COURT HAS HELD THAT THE TERM SUFFICIENT CA USE IS TO BE LIBERALLY CONSTRUED AND THE PRINCIPLES OF THE ADVAN CING SUBSTANTIAL JUSTICE SHOULD BE KEPT IN MIND. IN THE CASE OF COL LECTOR, LAND ACQUISITION VS. MST. KATIJI & OTHERS 167 ITR 471 (S C) THE HONBLE SUPREME COURT HAS HELD THAT WHILE CONSIDERING THE M ATTER OF THE DELAY CONDONOTION IN FILING THE APPEAL, CAUSE OF ADVANCEM ENT OF THE JUSTICE IS TO BE KEPT IN MIND. 5. AS PER THE FACTS ON RECORD, WE FIND THAT THERE I S A SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE FOR NOT FILING TH E APPEAL WITHIN THE TIME LIMIT. WE ACCORDINGLY CONDONE THE DELAY AND R ESTORE THE ENTIRE MATTER BACK TO THE CIT (A) TO ADJUDICATE AND DECIDE THE ASSESSEES APPEAL ON MERIT. NEEDLESS TO SAY THE ASSESSEE SHOU LD BE GIVEN OPPORTUNITY OF BEING HEARD AS PER PRINCIPLES OF NAT URAL JUSTICE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH SEPTEMBER 2011. SD/- SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATED : 28TH SEPTEMBER 2011 ITA 5876 /MUM/2010 GARDENPLAST PVT. LTD. 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) -19, MUMBAI. 4) THE CIT-CITY-9, MUMBAI. 5) THE D.R. G BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 5876 /MUM/2010 GARDENPLAST PVT. LTD. 5 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 15.09.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 19.09.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER