Shri Suresh Dhansingh Koli, Jalgaon V. ITO, Ward 1(3), Nashik

ITA 600/PUN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88969 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.600/PN/2013 (ASSESSMENT YEAR 2005-06) SHRI SURESH DHANSINGH KOLI (HUF), AT & POST DEVGAON, TALUKA CHOPDA, DISTRICT JALGAON .. APPELLANT PAN NO.BUBPK5236J VS. ITO, WARD-1(3), JALGAON .. RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 18-02-2015 DATE OF PRONOUNCEMENT : 20-02-2015 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 20-12-2011 OF THE CIT(A)-II, NASHIK RELATING TO ASS ESSMENT YEAR 2005-06. ADDITION OF RS.37,69,503/- BY THE ASSESSING OFFICER IN AN ORDER PASSED U/S.144 OF THE I.T. ACT AND UPHELD BY THE CIT(A) BY AN EXPARTE ORDER IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 2. THERE IS A DELAY OF 314 DAYS IN FILING OF THIS A PPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED A CONDONATION PET ITION SEEKING CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT EXPLAI NING THE REASONS FOR SUCH DELAY. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE CONDONATION PETITION AS WELL AS THE AFFIDAVIT SUBMITTED THAT TH E KARTA OF THE ASSESSEE (HUF) WAS SUFFERING FROM STOMACH ULCER AND WAS ALSO TESTED POSITIVE FOR 2 HIV AIDS FOR WHICH HE WAS HOSPITALISED FOR A CONSID ERABLE TIME. THE ASSESSEE ALSO UNDERWENT CHEMOTHERAPY TREATMENT AT P OONA HOSPITAL AND RESEARCH CENTRE. REFERRING TO THE RELEVANT MEDICAL REPORTS AND CERTIFICATES FILED IN THE PAPER BOOK, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THERE WAS A REASONABLE CAUSE FOR THE DELAY IN FILIN G OF THE APPEAL BEFORE THE TRIBUNAL. RELYING ON VARIOUS DECISIONS HE SUBMITTE D THAT THE DELAY IN FILING OF THE APPEAL SHOULD BE CONDONED. 2.1 SO FAR AS MERIT OF THE CASE IS CONCERNED, HE SU BMITTED THAT THE LD.CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASS ESSEE BY APPLYING THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA) LTD. REPORTED IN 38 ITD 320 AND THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TU KOJIRAO HOLKAR REPORTED IN 223 ITR 480. HE HAS NOT DECIDED THE ISSUE ON ME RIT. HE ACCORDINGLY SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTE R SHOULD BE SET ASIDE TO THE FILE OF THE LD.CIT(A) TO DECIDE THE ISSUE ON MERIT AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CA SE. 3. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND STRONGLY OPPOSED THE SUBMISSION OF THE LD. COUNSEL FOR THE A SSESSEE. HE SUBMITTED THAT THERE WAS NO APPEARANCE BEFORE THE ASSESSING O FFICER FOR WHICH AN ORDER U/S.144 OF THE I.T. ACT HAS BEEN PASSED. EVE N BEFORE CIT(A) THERE WAS NO COMPLIANCE. THEREFORE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) SHOULD BE UPHELD AND THE APPEAL FILED BY THE ASSESSEE BE DISMISSED. 3 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND SOME MERIT IN THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT DUE TO PRO LONGED ILLNESS OF THE ASSESSEE HE WAS UNABLE TO FILE THE APPEAL BEFORE TH E TRIBUNAL WITHIN THE DUE DATE. FROM THE COPIES OF THE MEDICAL CERTIFICATES ETC., WE FIND THE ASSESSEE WAS SUFFERING FROM STOMACH ULCER. HE ALSO UNDERWEN T CHEMOTHERAPY TREATMENT AT POONA HOSPITAL AND RESEARCH CENTRE. F URTHER, THE ASSESSEE WAS ALSO TESTED POSITIVE FOR HIV AIDS. HE WAS ADMITTED IN THE HOSPITAL FOR A PROLONGED PERIOD. UNDER THESE CIRCUMSTANCES, WE AR E OF THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUSE ON THE PA RT OF THE ASSESSEE IN NOT FILING THE APPEAL WITHIN THE DUE DATE. WE THEREFOR E CONDONE THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE. 4.1 SO FAR AS THE MERIT OF THE CASE IS CONCERNED, W E FIND THE ASSESSING OFFICER PASSED AN EXPARTE ORDER DUE TO NON-APPEARAN CE BEFORE HIM. THE LD.CIT(A) INSTEAD OF DECIDING THE ISSUE ON MERIT HA S DISMISSED THE APPEAL FOR NON-APPEARANCE BY APPLYING THE RATIO OF DECISIO N OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA) LTD.(SUPRA) AND THE DECIS ION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR (SUPRA). IT HAS BEEN HELD IN VARIOUS DECISIONS THA T THE CIT(A) HAS TO PASS A SPEAKING ORDER EVEN IF THERE IS NON-APPEARANCE AND CANNOT DISMISS THE APPEAL BY APPLYING THE RATIO OF DECISION OF THE TRI BUNAL IN THE CASE OF MULTIPLAN (INDIA) LTD.(SUPRA). IN THE INSTANT CASE , THE LD.CIT(A) HAS NOT PASSED A SPEAKING ORDER EITHER ALLOWING OR DISMISSI NG THE APPEAL AND HAS DISMISSED THE APPEAL FOR NON-APPEARANCE BY FOLLOWIN G THE DECISION OF THE 4 TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA) LTD.(SUPR A) AND THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ES TATE OF LATE TUKOJIRAO HOLKAR (SUPRA). THEREFORE, WE, IN THE IN TEREST OF JUSTICE, DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD.C IT(A) FOR DECIDING THE ISSUE ON MERIT BY PASSING A SPEAKING ORDER. THE LD.CIT(A ) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECI DE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE APPEAL FILED B Y THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20-02-2015. SD/- SD/- (R.S.PADVEKAR ) ( R.K . PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED 20 TH FEBRUARY 2015 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II, NASHIK 4. THE CIT-II, NASHIK 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, INCOME TAX APPELLATE T RIBUNAL, PUNE