Smt. Bindu Polisetty, Hyderabad V. ACIT, cIRCLE -16(2), Hyderabad

ITA 61/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61894 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 19-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K NAGESHWAR RAO
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 61/HYD/2012 ASSESSMENT YEAR : 2008-09 BINDU POLISETTY, APPELLANT HYDERABAD. (PAN AHGPP1206L/B-710) VS. ASSTT. COMMISSIONER OF INCOME-TAX, RESPONDEN T CIRCLE 16(2), HYDERABAD. APPELLANT BY : MR.D.L. NARASIMHA RAO RESPONDENT BY : MR. K. NAGESHWAR RAO. DATE OF HEARING : 01/05/2012 DATE OF PRONOUNCEMENT : 18/05 /2012 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE CIT(A)-V, HYDERABAD DATED 11/11/2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED 6 GROUNDS OF APPEAL, THE SUM AND SUBSTANCE OF WHICH IS AGAINST THE ACTION OF THE CIT (A) IN REJECTING THE CONDONATION OF DELAY IN FILING THE APPEAL BY TH E ASSESSEE BEFORE HIM AND THEREBY DISMISSING THE APPEAL. 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 16/03/2009 ADMITTING TOTAL INCOME OF RS. 1,42,710/-. ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT, DET ERMINING THE 2 ITA NO. 61/HYD/2012 SMT. BINDU POLISETTY. TOTAL INCOME AT RS. 24,46,710/- BY MAKING AN ADDITI ON OF RS. 23,04,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U /S 68 OF THE ACT. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 4. THE APPEAL HAD BEEN FILED LATE BY 47DAYS BEFORE THE CIT(A). AS PER FORM NO. 35 FILED BY THE ASSESSEE, THE ASSESSME NT ORDER ALONG WITH DEMAND NOTICE WAS SERVED ON THE ASSESSEE ON 07 /01/2011 AND HENCE THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFOR E 06/02/2011. THE APPEAL HAS BEEN FILED ON 24/03/2011 AND HENCE T HERE WAS A DELAY OF 46 DAYS. 5. DURING THE PROCEEDINGS BEFORE THE CIT(A), THE AS SESSEE GAVE FOLLOWING REASONS FOR DELAY IN FILING OF THE APPEAL :- IN THE EARLIER MEMORANDUM OF WRITTEN SUBMISSIONS , THE APPELLANT BROUGHT TO THE KIND NOTICE OF THE HONBLE CIT(A) THAT SHE DID NOT RECEIVE THE DEMAND NOTICE AND THE ASSES SMENT ORDER FOR THE ASSESSMENT YEAR UNDER REVIEW ON 06/01 /2011, THAT SHE SHIFTED HER RESIDENCE FROM THE EARLIER RES IDENTIAL PREMISES; THAT SHE VOLUNTARILY AND AT HER INSTANCE ONLY FILED A LETTER DT. 14/02/2011 AFTER ENQUIRY IN THE OFFICE O R THE LD. ASSESSING OFFICER ABOUT THE COMPLETION OF THE ASSES SMENT PROCEEDINGS FOR THE ABOVE ASST. YEAR, AND AFTER OBT AINING A COPY OF THE ABOVE ORDERS AND NOTICES FROM THE LD. ASSESS ING OFFICER, ON 23/02/2011, SHE FILED THE APPEAL WITHIN 30 DAYS FROM THE ABOVE DATE, THROUGH FORM NO. 35, DT. 24 TH MARCH, 2011. IF FOR ANY TECHNICAL REASON IT IS VIEWED THAT THERE WAS DE LAY IN FILING THE APPEAL, THE APPELLANT ALSO MADE A PRAYER THEREI N TO CONDONE THE MARGINAL DELAY INVOLVED THEREIN. 6. THE CIT(A) WAS NOT CONVINCED WITH THE EXPLANATIO N GIVEN BY THE ASSESSEE THAT SHE HAD NOT RECEIVED THE ASSESSME NT ORDER AND WHEN SHE HEARD OF THE ORDER, SHE APPROACHED THE ASS ESSING OFFICER FOR A CERTIFIED COPY. THE CIT(A) OBSERVED THAT THE ASSESSING OFFICER HAD DULY SERVED THE ORDER BY POST ON THE ADDRESS GI VEN BY THE ASSESSEE. THE CIT(A) FURTHER OBSERVED THAT IT IS NO T CLEAR WHETHER INSTRUCTIONS WERE GIVEN TO THE POST OFFICE TO DIVER T THE MAIL AND THE 3 ITA NO. 61/HYD/2012 SMT. BINDU POLISETTY. PERSONS WHO WOULD LOOK AFTER THE MAIL, ONCE THE RES IDENCE HAS BEEN SHIFTED. THE CIT(A) REFUSED TO CONDONE THE DELAY IN FILING THE APPEAL AND DISMISSED THE APPEAL. 7. THE ASSESSEE IS AGGRIEVED AND IS IN APPEAL BEFOR E US PLEADING THAT THE MARGINAL DELAY OF 47 DAYS MAY BE CONDONED. 8. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD AS WELL AS GONE THROUGH THE ORDERS OF TH E AUTHORITIES BELOW. WE FIND THAT THE ASSESSING OFFICER OBSERVED IN HIS REMAND REPORT TO THE EFFECT THAT THE ASSESSMENT ORDER WAS SENT BY POST TO THE ADDRESS AVAILABLE ON RECORD AND THE SAME WAS SE RVED ON 06/01/2011 AND THE ASSESSEE HAS INFORMED ABOUT THE CHANGE OF ADDRESS ONLY ON 14/02/2011 I.E. AFTER COMPLETION OF THE ASSESSMENT PROCEEDINGS. A COPY OF THE ASSESSMENT ORDER WAS FUR NISHED TO THE ASSESSEE VIDE LETTER DATED 28/02/2011, AND APPEAL W AS FILED ON ONLY 24/03/2011 WITH A DELAY OF 47 DAYS FROM THE DATE OF ORIGINAL SERVICE I.E. ON 06/01/2011. THE ASSESSING OFFICER H AS IN HIS REMAND REPORT STATED THAT CLAIMING OF NON-RECEIPT O F ORIGINAL ORDER WAS A CLEVER PLOY ADOPTED BY THE ASSESSEE. 9. IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MS T. KATIJI & ORS (1987) 167 ITR 471 (SC), THE HONBLE SUPREME COURT HELD THAT EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A R ATIONAL COMMON SENSE PRAGMATIC MANNER . HENCE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE HONBLE SUPREME COURT, WE CONDONE T HE DELAY AND RESTORE THE ISSUE TO THE FILE OF THE CIT(A) TO DECI DE THE APPEAL ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF HE ARING TO THE ASSESSEE. 4 ITA NO. 61/HYD/2012 SMT. BINDU POLISETTY. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 18/05/2012. SD/- SD/- (CHANDRA POOJARI) (ASHA VIJ AYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED:18 TH MAY, 2012 KV COPY TO:- 1) SMT. BINDU POLISETTY, DIR, MARBLE ESTATE (INDIA) LTD. PLOT NO. 49, VASANTHA VALLEY, WHITE FIELDS, KONDAPUR, HYDERABAD 500 084 2) ACIT, CIRCLE 16(2), HYDERABAD. 3) THE CIT (A)-V, HYDERABAD 4) THE CIT-IV, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD