ABHIJIT P. DESHMUKH, MUMBAI V. ITO 26(2)1), MUMBAI

ITA 6125/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8083 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-01-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NITESH NARESH
• Keywords: Reasonable cause; Corroborative evidences

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI RAJENDRA SINGH(AM) ITA NO.6125/M/2010 ASSESSMENT YEAR 2005-06 SHRI ABHIJIT P. DESHMUKH THE ITO 26(2)(1), KG MI TTAL V.R.MALGI FOUNDATION TRUST AYURVEDIC HOSPITAL BL DG., 19/13, VACHARAJ LANE, CHARNI ROAD, MUMBAI 400 0 02. MATUNGA, MUMBAI 400 019. PAN : ABGPD 5222 J APPELLANT RESPONDENT ASSESSEE BY : SHRI NITESH NARESH REVENUE BY : SHRI R.K.GUPTA O R D E R PER RAJENDRA SINGH (AM) THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 14.5.2010 OF THE CIT(A) FOR THE ASSESSMENT YEAR 200 5-06. THE ONLY DISPUTE RAISED IS THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE CIT(A) WAS NOT JUSTIFIED IN NOT CONDONING THE DELAY IN FILING THE APPEAL AND IN DISMISSING THE APPEAL AS UNADMITTED. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E APPEAL FOR THE ASSESSMENT YEAR 2005-06 WAS DUE TO BE FILED BEFORE THE CIT(A) BY 13.1.2008 BUT THE SAME WAS FILED ON 22.5.2008, THERE BEING DE LAY OF OVER FOUR MONTHS. THE ASSESSEE FILED CONDONATION APPLICATION BEFORE C IT(A) IN WHICH IT WAS SUBMITTED THAT THE ASSESSEE WHO WAS A QUALIFIED ENG INEER AND DIRECTOR OF SHRIKRISHNA RAIL ENGINEERS PVT. LTD., WAS LOOKING A FTER THE WORKING OF THE 2 COMPANY AT RANPAT SITE FROM 25.11.2007 TO 30.4.2008 . THE ASSESSEE FILED A CERTIFICATE FROM THE COMPANY IN SUPPORT OF THE CLAI M. IT WAS ALSO SUBMITTED THAT ASSESSMENT ORDER HAD BEEN RECEIVED BY HIS OFFICE AN D SINCE HE WAS AWAY AT SITE AT THE RELEVANT TIME, THE APPEAL COULD NOT BE FILED IN TIME. ACCORDINGLY THE ASSESSEE APPLIED FOR CONDONATION OF DELAY. THE CIT( A) HOWEVER OBSERVED THAT THE ASSESSEE DID NOT FILE ANY COGENT EVIDENCE TO ES TABLISH THAT DELAY WAS DUE TO REASONS BEYOND HIS CONTROL. HE THEREFORE DID NOT CO NDONE THE DELAY AND DISMISSED THE APPEAL AS UNADMITTED AGGRIEVED BY WHI CH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. BEFORE ME THE LEARNED AR FOR THE ASSESSEE SUBMIT TED THAT THERE WAS REASONABLE CAUSE FOR NOT FILING THE APPEAL IN TIME BEFORE THE CIT(A) AND THEREFORE DELAY SHOULD HAVE BEEN CONDONED. THE LEAR NED DR PLACED RELIANCE ON THE ORDER OF CIT(A). I HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE DUE DATE OF FILING OF APPEAL WAS 13. 1.2008 BUT THE SAME WAS FILED ON 22.5.2008. THE ASSESSEE HAD EXPLAINED BEFORE THE CIT(A) THAT HE WAS A QUALIFIED ENGINEER AND WAS WORKING FOR THE RANPAT S ITE FROM 25.11.2007 TO 30.4.2008. THE ASSESSEE FILED CERTIFICATE FROM THE COMPANY TO SUBSTANTIATE THE CLAIM. IT WAS ALSO SUBMITTED THAT THE ORDER OF THE AO HAD BEEN RECEIVED IN HIS OFFICE AND SINCE HE WAS AWAY THE APPEAL COULD NOT B E FILED IN TIME. IT IS CLEAR FROM THE SUBMISSION OF THE ASSESSEE THAT THE ASSESS EE WAS AWAY FROM HIS OFFICE TILL 30.4.2008 AND THE APPEAL WAS FILED ON 22.5.200 8. THE ASSESSEE HAD FILED SUPPORTING EVIDENCE TO SHOW THAT HE WAS WORKING AWA Y AT RANPAT SITE FROM 25.11.2007 TO 30.4.2008. UNDER THESE CIRCUMSTANCES IT CANNOT BE SAID THAT THE DELAY WAS BECAUSE OF NEGLIGENCE OR IT WAS DELIBERAT E. THE ASSESSEE HAS NO ADVANTAGE IN FILING THE APPEAL LATE. IN MY VIEW ON THE FACTS OF THE CASE DELAY HAS TO BE TAKEN AS EXPLAINED SATISFACTORILY AND APP EAL WAS REQUIRED TO BE 3 ADMITTED. I THEREFORE DIRECT THE CIT(A) TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING AND DECIDE THE APPEAL ON MERIT A FTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE MATTER IS THUS RESTORE D TO THE CIT(A). 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5. THE DECISION WAS PRONOUNCED IN THE OPEN COURT TO DAY I.E. 17.03.2011. SD/- (RAJENDRA SINGH) ACCOUNTANT MEMBER DATE : 17.03.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR SMC BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ALK