The Branch Manager, Jammu V. The Income-tax Officer, Jammu

ITA 610/ASR/2011

• Counselvise Citation: 61020914 RSA 2011
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 14-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NOS.609 & 610(ASR)/2011 ASSESSMENT YEARS:2007-08 & 2008-09 PAN :AMRTI1562F THE BRANCH MANAGER, VS. THE INCOME TAX OFFICER, (T DS), THE J & K BANK LTD; JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.K. GUPTA, CA RESPONDENT BY:SH. AMRIK CHAND, DR DATE OF HEARING:23/08/2012 DATE OF PRONOUNCEMENT:23/08/2012 ORDER PER BENCH ; THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST THE CONSOLIDATED ORDER OF THE CITA), JAMMU, DATED 03.10 .2011 FOR THE ASSESSMENT YEARS 2007-08 & 2008-09 RESPECTIVELY. AS THE ISSUE INVOLVED IN BOTH THE APPEALS, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS. 609 & 610(ASR)/2011 2 2. THE GROUNDS RAISED IN ITA NO.609(ASR)/2011 ARE R EPRODUCED HEREUNDER WHICH ARE SIMILAR TO GROUNDS IN ITA NO.61 0(ASR)/2011: 1. THAT THE WORTHY CIT(A) IS NOT JUSTIFIED IN NOT CONDONING THE DELAY IN FILING OF APPEAL. THERE IS A SUFFICIENT CA USE FOR DELAY AND DEFAULT OF EACH DAY HAS DULY BEEN EXPLAINED TO WORTHY CIT(A). 2. THE APPELLANT CRAVES, LEAVES TO ALTER AND ADD TO SUBSTITUTE ANY GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K. GUPTA, CA, STATED THAT IN BOTH THE APPEALS, THE LD. FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEALS OF THE ASSESSEE ON LIMITATIO N ISSUE AND REJECTED THE APPLICATION FOR CONDONATION OF DELAY OF 242 DAYS. H E ALSO DREW OUR ATTENTION TOWARDS PARA -2 OF THE IMPUGNED ORDER, IN WHICH TH E REASONS MENTIONED FOR CONDONATION OF DELAY HAS ELABORATELY BEEN DESCRIBED . HE REQUESTED THAT THAT THE ASSESSEE HAS ALSO FILED VARIOUS AFFIDAVITS OF T HE EMPLOYEES INCLUDING THE BRANCH MANAGER OF THE BANK ALONGWITH VARIOUS DECISI ONS ON THE ISSUE IN DISPUTED IN WHICH THE HONBLE COURTS HAVE CONDONED THE DELAY. BUT THE LD. FIRST APPELLATE AUTHORITY HAS NOT APPRECIATED THE S AME AND WRONGLY REJECTED THE APPLICATION FOR CONDONATION OF DELAY FILED BY T HE ASSESSEE. HE REQUESTED THAT THE DELAY OF 242 DAYS MAY BE CONDONED AND THE ISSUE IN DISPUTE MAY BE SET-ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME ON M ERITS, AFTER HEARING THE PARTIES. 4. ON THE CONTRARY, THE LD. DR RELIED UPON THE ORDE R PASSED BY THE LD. FIRST APPELLATE AUTHORITY. ITA NOS. 609 & 610(ASR)/2011 3 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE WITH US ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. THE LD. CIT(A) HAS REPRODUCED THE APPLIC ATION FOR CONDONATION OF DELAY FILED BY THE ASSESSEE, IN HIS IMPUGNED ORDE R IN PARA 2 (PAGE 1 & 2), WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: THE AFORESAID APPEAL HAS BEEN FILED WITH THE DELAY OF 242 DAYS. IT WAS REQUESTED TO BE FILED ON OR BEFORE 27 TH NOV., 2009 BUT HAS BEEN FILED ON 28 TH JULY, 2010. THE DELAY IS ATTRIBUTED TO THE THEN BR ANCH MANAGER. NEITHER SHE WAS AWARE OF THE PROCEDURES TO BE FOLLOWED NOR SHE HAS BROUGHT THIS MATTER TO THE KNOWLEDGE OF HI GHER AUTHORITIES RATHER SHE KEPT ON FOLLOWING THE MATTER WITH JAMMU DEVELOPMENT AUTHORITY FOR THE RECOVERY OF THIS DEMAND FOR ONWAR D DEPOSITING I.TAX AGAINST THIS ORDER ( COPY OF THIS CORRESPONDENCE EN CLOSED). ONLY WHEN SHE WAS RELIEVED FROM THIS BRANCH, THE NEW INC UMBENT IN CHARGE COME TO KNOW ABOUT THIS MATTER AND SOUGHT ADVICE ON 27.07.2010 FROM HIGHER AUTHORITIES AT CORPORATE HEAD QUARTERS, SRIN AGAR TO FILE APPEAL AGAINST THE ORDER. THEREAFTER ON 27.07.2010 THE APPEAL COULD BE FILED WHICH RESULT INTO DELAY OF 242 DAYS TO SHO W BONAFIDE, THE AFFIDAVITS OF THE THEN BRANCH MANAGER AND THAT OF A NEW INCUMBENT INCHARGE ARE ENCLOSED. THE COPY OF TRANSFER ORDER OF THEN BRANCH MANAGER, TE COPY OF LETTER TO CORPORATE OFFICE SEEK ING ADVICE DATED 20.07.2010 AND COPY OF LETTER FROM TAXATION CELL OF CORPORATE OFFICE DATED 22.07.2010 DIRECTING THE APPELLANT TO FILE AP PEAL JUSTIFY THE DELAY THAT BECAUSE OF GENUINE REASONS THE APPEAL CO ULD BE FILED ON 28.07.2010 IN FACT, IT IS NOT A CASE WHERE ONE COUL D STATE THAT DELAY IS DUE TO CALLOUS AND NEGLIGENT ATTITUDE OF THE APPELL ANT. IT IS MERELY BECAUSE OF IGNORANCE OF THEN BRANCH MANAGER. SHE AC CEPTED HERSELF TO BE ASSESSEE IN DEFAULT AND TOOK NECESSARY STEPS TO DEPOSIT THIS DEMAND OF I.TAX RAISED U/S 201(IA) OF THE I.T. ACT, 1961. THE NEW INCUMBENT INCHARGE ALTHOUGH NOT AWARE OF PROCEDURE HAS SOUGHT THE ADVICE FROM THE CORPORATE HEAD QUARTERS IMMEDIATELY AND THE OUTCOME IS THIS APPEAL BUT WITH A DELAY OF 242 DA YS. IN THIS REGARD RELIANCE IS PLACED ON CASE LAW IN WHICH THE HONBLE APEX COURT IN THE CASE OF IMPROVEMENT TRUST, LUDHIANA VS. UJAGAR SING H & ORS IN C.A. NOS 2395 OF 2008 VIDE ITS ORDER DATED JUNE 9M 2010 HAS HELD THAT AFTER ALL, JUSTICE CAN BE DONE ONLY WHEN THE MATTE R IS FOUGHT ON ITA NOS. 609 & 610(ASR)/2011 4 MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DI SPOSE IT OF ON SUCH TECHNICALITIES AND THAT TOO AT THE THRESHOLD. THE HONBLE APEX COURT IN THIS CASE HAS ALSO HELD THAT IT IS PERTINENT TO POINT OUT THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE CONDUCT OF PARTY, G ENERALLY AS A NORMAL RULE, DELAY SHOULD BE CONDONED. IN THE LEGAL ARENA, AN ATTEMPT SHOULD ALWAYS BE MADE TO ALLOW THE MATTER TO BE CON TESTED ON MERITS RATHER THAN TO THROW IT ON SUCH TECHNICALITIES. TH E APEX COURT FURTHER HELD THAT APART FROM ABOVE APPELLANT WOULD NOT HAV E GAINED IN ANY MATTER WHAT SO EVER, BY NOT FILING THE APPEAL WITHI N THE PERIOD OF LIMITATION. 5.1. AFTER GOING THROUGH THE REASONS MENTIONED BY T HE ASSESSEE IN THE CONDONATION OF DELAY, WHICH IS SUPPORTED BY VARIOUS AFFIDAVITS OF THE EMPLOYEES OF THE BANK, WE ARE OF THE CONSIDERED OPI NION THAT THE ASSESSEE BEING A BANK OF JAMMU & KASHMIR AND IS A STATUTORY BODY AND ONE BRANCH MANAGER, WHO IS A LADY, WHO WAS NOT AWARE OF THE PR OCEDURE FOR FILING THE APPEAL BEFORE THE AUTHORITIES BELOW, KEPT THE FILE WITH ANOTHER FILE AND WHEN SHE WAS RELIEVE FROM THAT BRANCH, WHERE SHE WORKED, THE NEW INCUMBENT INCHARGE CAME TO KNOW ABOUT THE MATTER IN WHICH THE PRESENT APPEAL IS TO BE FILED BEFORE THE LD. FIRST APPELLATE AUTHORITY, SOU GHT ADVICE FROM THE HIGHER AUTHORITIES AT CORPORATE HEAD QUARTERS SRINAGAR TO FILE THE APPEAL AGAINST THE ORDER. THESE REASONS CAUSED DELAY OF 242 DAYS IN FI LING THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS ALS O FILED AFFIDAVITS OF THE BRANCH MANAGER ALONGWITH HER TRANSFER ORDER AND OTH ER RELATING CORRESPONDENCE TO CORROBORATE THE VERSION MENTIONED IN THE APPLICATION FOR CONDONATION OF DELAY, WHICH WE THINK THE LD. FIRST APPELLATE AUTHORITY HAS NOT APPRECIATED AND WRONGLY REJECTED THE APPLICATION FO R CONDONATION OF DELAY, ITA NOS. 609 & 610(ASR)/2011 5 WHICH IN OUR VIEW ARE VERY MUCH REASONABLE TO CONDO NE THE DELAY OF 242 DAYS IN FILING THE APPEAL BEFORE THE LD. FIRST APPE LLATE AUTHORITY. 5.2. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE EXPLAINED ABOVE AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE DELAY OF 242 DAYS IN FILING THE APPEAL BEFORE THE LD. FIRST APPE LLATE AUTHORITY DESERVES TO BE CONDONED BY THE LD. FIRST APPELLATE AUTHORITY. ACC ORDINGLY, WE CONDONE THE DELAY IN DISPUTE BY CANCELING THE IMPUGNED ORDER IN BOTH THE APPEALS AND SET ASIDE THE MATTER TO THE FILE OF THE LD. FIRST APPEL LATE AUTHORITY TO DECIDE THE ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS RAISED BEFORE THE LD. FIRST APPELLATE AUTHORITY AFRESH IN ACCORDANCE WITH LAW, AFTER HEAR ING BOTH THE PARTIES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD AUGUST, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:THE BRANCH MANAGER, J & K BANK, JAMMU. 2. THE ITO (TDS), JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER