Shri Santosh Bhimrao Deore, V. ITO Ward 2(3),

ITA 612/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3238 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 19-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I.C.SUDHIR JM AND SHRI RAJENDRA SINGH AM I.T.A. NO. 612/PN/200 7 (ASSTT. YEAR : 2003-04 ) SHRI. SANTOSH BHIMRAO DEORE, APPELLANT N-7, C-2, 47 CIDCO, AURANGABAD PAN : AACFH8376A VS. ITO WARD 2(3), AURANGABAD RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER I.C. SUDHIR, JM THE ASSESEE HAS QUESTIONED FIRST APPELLATE ORDER O N THE GROUND THAT THE LD CIT(A) HAS ERRED IN SUSTAINING THE PENALTY LEVIED U /S. 271B OVERLOOKING THE FACT THAT THE APPELLANT DECLARED THE INCOME U/S. 44AD HAD NOT MAINTAINED THE REGULAR BOOKS OF ACCOUNTS. 2. HAVING GONE THROUGH THE ORDERS OF THE LOWER AUTH ORITIES IN VIEW OF THE ARGUMENTS ADVANCED BY THE LD. D.R, WE FIND THAT THE LD CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS WHEREIN THE ASSESSEE HAD QUESTIONE D THE SIMILAR PENALTY LEVIED BY THE A.O AT RS. 20,489/- U/S. 271B OF THE ACT. THE LD CIT(A) HAS, INSTEAD, DISMISSED THE FIRST APPEAL AS NOT MAINTAINABLE WHILE REJECTIN G THE APPLICATION FOR CONDONATION FOR DELAY IN PREFERRING THE FIRST APPEAL AFTER 1 YE AR AND 1 MONTH OF SERVICE OF ORDER U/S. 271B. BEFORE THE LD CIT(A), THE REASON FOR F ILING THE FIRST APPEAL LATE HAS BEEN SHOWN THAT THE ASSESSEE HAD TAKEN OVER THE BUSINESS AFTER THE DEMISE OF HIS FATHER AND BEING NOT CONVERSANT WITH THE PROVISIONS OF THE INCOME TAX ACT, HE HAD ENGAGED AN ADVOCATE TO LOOK AFTER HIS TAX MATTERS. HE WAS ACCORDINGLY DEPENDENT UPON HIS LD. COUNSEL AND LATER ON REALIZED THAT THE FIRST APPEAL HAS NOT BEEN PREPARED BY HIM AND THUS, THERE WAS DELAY IN FILING THE FIRST APPEAL. THIS EXPLANATION WAS FURNISHED ON AFFIDAVIT ALONG WITH A PPLICATION FOR CONDONATION FOR ITA NO. 612/PN/2009 SANTOSH BHIMRAO DEORE , (A.Y. 2003-04) , 2 DELAY IN FILING THE FIRST APPEAL BEFORE THE LD CIT( A). THE LD CIT(A) DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE ON THE BASIS THAT THERE IS NO SUFFICIENT OR REASONABLE CAUSE BEHIND DELAY AS THE ASSESSEE WAS R EPRESENTED BY PROPERLY QUALIFIED AUTHORIZED REPRESENTATIVE DURING THE COUR SE OF ASSESSMENT PROCEEDINGS. 3. WE ARE, HOWEVER, OF THE VIEW THAT THERE IS NO RE ASON TO DOUBT EXPLANATION OF THE ASSESSEE IN PREFERRING FIRST APPEAL LATE. FOR LAPSE, IF ANY, ON THE PART OF AN AUTHORIZED REPRESENTATIVE, THE ASSESSEE CANNOT BE ALLOWED TO SUFFER. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE WAS SU FFICIENT CAUSE BEHIND THE DELAY IN FILING THE FIRST APPEAL BY THE ASSESSEE. WE, TH US, WHILE CONDONING THE DELAY IN FILING THE FIRST APPEAL, REMAND THE MATTER TO THE F ILE OF THE LD CIT(A) TO DECIDE FIRST APPEAL ON ITS MERITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE PARTIES. THE GROUND IS, THUS, ALLOWED FOR STATISTICAL PURPOSES. 4. CONSEQUENTLY, THE APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON TH OC TOBER, 2010 SD/- SD/- (RAJENDRA SINGH) (I.C. SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 29TH OCTOBER , 2010 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.10. 2010 SD/- SD/- (G.S.PANNU) (I.C. SUDHIR) A.M. J.M US COPY OF THE ORDER IS FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A)-, AURANGABAD 4. CIT, AURANGABAD 5. D.R. ITAT A BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE