Shri Vigneshwar N Nayak , Sirsi V. Income Tax Officer Ward-1 , Sirsi

ITA 60/BANG/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2760 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 07-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BALAKRISHNAN N
• Assessee Lawyers: TULAJAPPA KALBURGI
• Keywords: Rectification of order; Opportunity of being heard; Deemed to accrue or arise in india; Reasonable cause; Tax effect
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH SMC-C, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NO. 60 (BANG) 2019 (ASSESSMENT YEAR : 2011 12) SHRI VIGNESHWAR N. NAYAK, S/O. NARAYAN, AGE: 53, P/I. ANAND LAXMI FINANCE, CORPORATION BUILDING, SIRSI 581 401. PAN. AIVPN5023F APPELLANT VS THE INCOME TAX OFFICER, WARD 1, SIRSI. RESPONDENT ASSESSEE BY : SHRI TULAJAPPA KALBURGI, ADVOCATE REVENUE BY : SHRI BALAKRISHNAN .N, ADDL. CIT (DR) DATE OF HEARING : 21-02-2019 DATE OF PRONOUNCEMENT : 27-02-2019 O R D E R PER A. K. GARODIA, A.M.: THIS APPEAL IS FILED BY THE ASSESSEE AND IT IS DIR ECTED AGAINST THE ORDER OF CIT (A) HUBBALLI DATED 22.10.2018 FOR A. Y. 2011 12. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - SL NO. GROUNDS TAX EFFECT RELATING TO EACH GROUND OF APPEALS 1 (A) THAT THE LEARNED RESPONDENT ERRED IN DISMISSING AN APPEALS DECLINING TO CONDONE THE DELAY ON THE GROUND THAT THE EXPLANATION GIVEN BY THE AN APPELLANT ASSESSEES TO CONDONE THE DELAY WAS UNTENABLE WITHOUT LAYING DUE RS. 1,42,341/- ITA NO. 60(BANG)2019 2 EMPHASIS ON THE REPORT OF PATHOLOGIST AND OF ULTRASONOGRAPHY. AN APPELLANT ASSESSEE EXPLAINED THE REASONS FOR DELAY IN FILING AN APPEAL BY WRITTEN ARGUMENT DATED 31-5-2018 AND SUBMITTED THAT THE DELAY OF 327 DAYS RECKONED FROM DATE OF RECTIFICATION OF ORDER U/S 154 MAY BE TAKEN INSTEAD OF DELAY 586 DAYS RECKONED FROM THE DATE OF THE IMPUGNED ORDER. (B) THE LEARNED RESPONDENT OUGHT TO HAVE CONSIDER THE RATIO EMERGED IN DECISION OF HON'BLE SUPREME COURT IN COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND ORS. (1987) 167 1TR 471 (SC) WHEREIN IT WAS OBSERVED THAT 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 A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY AND PRINCIPAL LAID OUT IN ESHA BHATTACHARJEE V. MANAGING COMMITTEE OF RAGHUNATHPUR, NAFAR ACADEMY AND OTHERS 2013 (5) CTC 547. THAT THE ADDITION MADE TO THE RETURNED INCOME BY THE INCOME TAX OFFICER WAS WITHOUT ANY NECESSARY FINDING THEREFORE THE ORDER PASSED IS ARBITRARY, ILLEGAL AND BAD IN LAW LIABLE TO BE QUASHED. 2 THAT THE APPELLANT-ASSESSEE SEEK LEAVE OF THIS HON'BLE TRIBUNAL TO RAISE ALL OTHER GROUNDS IN SUPPORT OF THEIR CONTENTION AT THE TIME OF ARGUMENTS. 3 TOTAL TAX EFFECT RS.1,42,341/ - 3. LEARNED AR OF THE ASSESSEE REITERATED THE SAME C ONTENTIONS WHICH WERE RAISED BEFORE CIT (A) FOR CONDONING THE DELAY OF 58 6 DAYS IN FILING THE APPEAL BEFORE CIT (A). HE SUBMITTED THAT THE AFFIDAVIT FIL ED BEFORE CIT (A) IN THIS REGARD IS AVAILABLE ON PAGES 14 & 15 OF THE APPEAL MEMO. HE P OINTED OUT THAT AS PER THIS AFFIDAVIT, THIS IS THE SUBMISSION OF THE ASSESSEE T HAT HIS INCOME MAINLY CONSISTED OF DEEMED INCOME DECLARED U/S 44AE AND SHARE OF PRO FIT FROM FIRM. HE ALSO POINTED OUT THAT IN REPLY TO NOTICE U/S 148, THE AS SESSEE FILED RETURN HIMSELF ITA NO. 60(BANG)2019 3 WITHOUT ANY PROFESSIONAL HELP. HE SUBMITTED THAT HE APPROACHED A CHARTERED ACCOUNTANT ALSO BUT HE DECLINED TO TAKE UP HIS CASE FOR THE ATTITUDE OF THE ASSESSEE REGARDING PAYMENT OF FEES. HE SUBMITTED TH AT UNDER THESE FACTS, THE DELAY SHOULD BE CONDONED. HE PLACED RELIANCE ON A J UDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF MST. KATIJI & OTHERS AS REPORTED IN 167 ITR 471. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CI T (A) AND SUBMITTED THAT NO REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL COU LD BE SHOWN BY THE ASSESSEE AND HENCE, THE DELAY SHOULD NOT BE CONDONED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN PARA 3 OF HIS ORDER, IT IS STATED BY CIT (A) THAT IT WAS THE EXPLANATION OF THE ASSES SEE ABOUT DELAY IN FILING OF APPEAL OF 586 DAYS THAT THE DELAY IS DUE TO ILLNESS BUT AS PER THE AFFIDAVIT OF THE ASSESSEE, THE MAIN REASON GIVEN BY THE ASSESS FOR D ELAY IS THIS THAT THE ASSESSEE WAS NOT AWARE ABOUT THE REQUIREMENT OF FILING APPEA L. IN PARA 4 OF HIS ORDER, LEARNED CIT (A) HAS STATED THAT SINCE THE ASSESSEE WAS ABLE TO MAINTAIN BOOKS OF ACCOUNTS FOR HIRING OF CAR AND HAS MULTIPLE BANK AC COUNTS, IT CANNOT BE SAID THAT THE ASSESSEE IS AN IGNORANT PERSON WHO IS UNAWARE O F THE PROVISIONS OF LAW. FOR READY REFERENCE, I REPRODUCE PARA 3 & 4 FROM THE OR DER OF CIT (A). THESE ARE AS UNDER:- 3. IN THE COURSE OF APPELLATE PROCEEDINGS, THE ASSE SSEE SUBMITTED THAT THE DELAY IN FILING OF APPEAL OF 586 DAYS WAS DUE ILLNESS OF THE ASSESSEE. THE ASSESSEE SUBMITTED COPY OF PATHOLOGIC AL REPORT AND ULTRASOUND REPORT DT.26.06.2017, TO SHOW THAT HE HA D MILDLY HIGH LEVELS OF CHOLESTEROL AND THAT HE HAD NORMAL SIZED BLADDER AND BILIARY TRACT AND THAT HIS ULTRASOUND REPORT SHOWED THAT HE HAD NORMAL FUNCTIONS. THE AR WAS UNABLE TO EXPLAIN AS T O HOW THE DELAY IN FILING OF APPEAL ON GROUNDS OF ILL HEALTH WAS REASONABLE, GIVEN THAT THE ASSESSEE WAS NOT HOSPITALISED AND WA S QUITE HEALTHY, FOR A 51 YEAR OLD MAN, AND WAS ADMITTEDLY CARRYING ON ALL HIS NORMAL BUSINESS ACTIVITIES. HE HAS ALSO FAILED TO A DDUCE DETAILS OR PROOF IN SUPPORT OF THE LEGAL GROUNDS RAISED IN THE GROUNDS OF APPEAL. 4. THE ASSESSEE IS A PARTNER IN A FIRM CARRYING ON BUSINESS AND RUNS PROPRIETARY BUSINESS OF HIRING OF CAR AND TRAN SPORT BUSINESS. HE IS ABLE TO MAINTAIN BOOKS OF ACCOUNTS FOR HIRING OF CAR AND HAS MULTIPLE BANK ACCOUNTS. THUS, THE ASSESSEE CANNOT B E SAID TO BE AN IGNORANT PERSON WHO IS UNAWARE OF THE PROVISIONS OF LAW, AS RUNNING A TRANSPORTATION BUSINESS AND HIRING OF CAR S REQUIRES COMPLIANCE WITH VARIOUS FACETS OF LAW AND DEALING W ITH VARIOUS AGENCIES. HE HAD ALSO FAILED TO APPEAR OR RESPOND T O THE ITA NO. 60(BANG)2019 4 OPPORTUNITIES AFFORDED TO HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 5. IN THE LIGHT OF THESE FACTS, NOW I EXAMINE THE A PPLICABILITY OF THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF MST. KATIJI & ORS. (SUPRA). RATIO OF THIS JUDGMENT IS THIS THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. RESPECTFULLY FOLLOWING THIS JUDGMENT, I HOLD THAT IN THE FACTS OF THE PRESENT CASE, THE DELAY DESERVES TO BE CONDONED. I CONDONE THE DELAY AND RESTORE THE MATTER BACK TO CIT (A) TO DECIDE THE AP PEAL OF THE ASSESSEE ON MERIT AFTER GRANTING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 27 TH FEBRUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE .