MR. MANOJ C. MANJREKAR, MUMBAI V. THE ITO 24(3)(2), MUMBAI

ITA 6047/MUM/2007

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6200 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-11-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 26-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P N DEVADASAN
• Assessee Lawyers: PRANAV M PHADKE
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) MANOJ C MANJREKAR M/S RELIABLE HYDRAULICS, 2, TIRUPATI UDYOG, I B PATEL ROAD, GOREGAON (E) MUMBAI-400063 PAN: AGIPM8841P . APPELLANT VS INCOME TAX OFFICER WARD 24 (3)(2), PRATYAKSHA KAR BHAVEN, BANDRA KURLA COMPLEX MUMBAI-400050 RESPONDENT APPELLANT BY : SHRI PRANAV M PHADKE RESPONDENT BY : SHRI P.N.DEVADASAN O R D E R PER VIJAY PAL RAO,JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 18.05.2007 OF CIT(A)-XXIV, MUMBAI FOR THE ASSESSMENT YEAR 2002-03. 2. THERE IS A DELAY OF 63 DAYS IN FILING THE APPE AL BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CO NDONATION ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) 2 OF DELAY AS WELL AS AN AFFIDAVIT IN SUPPORT OF THE PETITION FOR CONDONATION OF DELAY. 3. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR AND CONSIDERED THE RELEVANT RECORD FOR CONDONATION OF DELAY. THE ASSESSEE HAS STATED IN THE APPLICATION AND IN THE AFFIDAVIT THAT HIS FATHER LATE SHRI CHANDRAKANT SHANKAR M ANJREKAR WAS SUFFERING FROM STROCK AND HAD UNDERGONE OPEN HE ART SURGERY IN THE MONTH OF MAY 2001 AND THEREAFTER HE WAS BED RIDDEN FOR SOME YEARS TILL HE DIED ON 26.5.2007. IT HAS BEEN FURTHER STATED THAT THE MOTHER OF THE ASSESSEE HAS ALSO BEEN SUFFERING FROM BREAST CANCER FOR THE LAST MANY YEAR S AND HAD BEEN UNDER CONTINUOUS INTENSIVE TREATMENT BY CANCER SPECIALIST. THE ASSESSEE BEING THE ONLY ISSUE TO HIS PARENTS HAD TO PAY ATTENTION TO THE ILLNESS OF HIS PARENTS AND THEREFORE NEITHER HE COULD CONCENTRATE ON HIS BUSINESS NOR HE COULD TAKE NECESSARY STEPS FOR FILING THE APPEAL IN TIME. ACCORDINGLY, THE ASSESSEE HAS PRAYED FOR CONDONATIO N OF DELAY OF 63 DAYS IN FILING THE APPEAL. HE HAS FILED DEATH CERTIFICATE OF THE FATHER AS WELL AS MEDICAL RECORD OF THE MOTHER. 4. ON THE OTHER HAND, THE LEARNED DR HAS OPPOSED TH E CONDONATION OF DELAY. ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) 3 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND REL EVANT RECORD. THE EXPLANATION AND REASONS GIVEN FOR CON DONATION OF DELAY IN FILING THE APPEAL ARE FOUND TO BE FACTUALL Y CORRECT. THEREFORE, WE ARE SATISFIED WITH CONTENTIONS OF THE ASSESSEE THAT THE ASSESSEE WAS HAVING SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME. IT IS SETTLED LAW THAT WHILE CO NDONING THE DELAY, THE COURT SHOULD TAKE A LENIENT VIEW. IT IS ALWAYS A QUESTION WHETHER THE EXPLANATION AND REASONS FOR DE LAY WAS BONAFIDE OR WAS MERELY DEVISE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDERHAND WAY. WHEN IT IS BR OUGHT ON RECORD THAT THE PARTY HAS NOT ACTED IN MALAFIED BUT THE REASONS EXPLAINED ARE FACTUALLY CORRECT THEN COUR T SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND SHO ULD LEAN IN FAVOUR OF SUCH PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE OPPOSED TO EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED. JUSTICE OR IENTED APPROACH HAS TO BE TAKEN BY A COURT WHILE DECIDING THE MATER FOR CONDONATION OF DELAY. HOWEVER, THIS DOES NOT MEAN THAT A LITIGANT GETS FREE LICENCE TO APPROACH THE COUR T AT ITS WILL. IN VIEW OF THIS LEGAL AND FACTUAL POSITION, WE CON DONE THE DELAY OF 63 DAYS IN FILING THE APPEAL BEFORE THIS T RIBUNAL. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE APP EAL FOR DECIDING IT ON MERITS. ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) 4 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL; 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WITHOUT GIVING A FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATER; 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT CONDONING THE DELAY IN FILING THE APPEAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL EVEN ON MERITS WITHOUT EVEN GIVING A FULL AND PROPER OPPORTUNITY OF BEING HEAR D; 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL EVEN ON MERITS WITHOUT EVEN DISCUSSING THE MERITS OF THE ASSESSMENT ORDER 7. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR AND CONSIDERED THE RELEVANT RECORD. THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT HEARING THE ASSE SSEE BECAUSE NOBODY HAS APPEARED ON BEHALF OF THE ASSESS EE ON THE DATE OF HEARING. AS IT HAS BEEN STATED IN THE A FFIDAVIT THAT DUE TO THE SERIOUS ILL-HEALTH PROBLEMS AND CONDITIO NS OF THE PARENTS OF THE ASSESSEE AND DEATH OF THE FATHER OF THE ASSESSEE, THE ASSES SEE COULD NOT PAY ATTENTION TO THE MATTER PENDING BEF ORE ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) 5 THE AUTHORITIES. THEREFORE, WE ARE OF THE VIEW THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE LOWER AUTHORITIES. FURTHER, WE NOTE THAT THE AO FRAMED THE ASSESSMENT BY RECORDI NG THE REASONS THAT THE ASSESSEE HAS NOT COMPLIED WITH T HE VARIOUS DIRECTIONS GIVEN BY HIM AND DETAILS ASKED FOR BY HI M. HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES AND THE DIFF ICULTIES EXPRESSED BY THE ASSESSEE, WE SET ASIDE THE ORDER O F THE CIT(A) AND REMIT THE MATTER TO THE RECORD OF THE AO TO PASS AFRESH ORDER AFTER CONSIDERING THE RELEVANT RECORD TO BE FILED BY THE ASSESSEE AND AFTER HEARING THE ASSESSEE. TO AVOID THE FURTHER DELAY, WE DIRECT THE ASSESSEE TO APPEAR BE FORE THE AO ON 27.1.2011 AND ACCEPT NOTICE IN PERSON. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES.. PRONOUNCED IN THE OPEN COURT ON 30.11.2010 S D SD (J.SUDHAKAR REDDY) (VI JAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI, DATED 30 TH NOV 2010 SRL:251110 ITA NO. 6047/MUM/2007 (ASSESSMENT YEAR: 2002-03) 6 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI