SHAKEEL M. SHAREEF, MUMBAI V. ITO WD 19(1)(4), MUMBAI

ITA 6185/MUM/2009

• Counselvise Citation: 618519914 RSA 2009
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 03-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 30-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R PRASAD RAO
• Keywords: Additional evidence; Condonation of delay
• Section: 271(1)(c); 142(1); 143(1); 201; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO.6185/MUM/2009 ASSESSMENT YEAR 2003-04 SHAKEEL M. SHAREEF , 16-62, NEW LIGHT BLDG., KALINA, SANTACRUZ(E), MUMBAI-400 055 PAN-AADPS 0699C VS. ITO 19(1)(4), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI R. PRASAD RAO RESPONDENT BY: SHRI R.K. GUPTA DATE OF HEARING : 9.08.2011 DATE OF PRONOUNCEMENT: 26.8.2011 O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 20.8.2009 PASSED BY THE LD. CIT(A)-XX FOR THE ASSESSMENT YEAR 2003- 04. 2. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDER ATION WAS FILED ON 1.12.2003 DECLARING AN INCOME OF RS. 64,122/-. THE NOTICE U/S. 143(2) AND 142(1) WERE ISSUED AND THEREAFTER THE RETURN WAS PR OCESSED U/S. 143(1) OF THE I.T. ACT. WHILE COMPLETING THE ASSESSMENT U/S.1 43(3), THE ASSESSING OFFICER MADE CERTAIN ADDITIONS WHICH WAS TAKEN UP O N FURTHER APPEAL BEFORE THE LD. CIT(A). ITA NO. 6185/M/09 2 3. THE LD. CIT(A) OBSERVED AS FOLLOWS: THE APPEAL IN THIS CASE AS PER FORM NO.35 IS FILED AS ON 4.5.2007 VIDE SR. NO. 108 OF THE TAPAL REGISTER MAI NTAINED IN THIS OFFICE FOR THIS PURPOSE. THE ASSESSMENT ORDER AGAIN ST WHICH THE SAID APPEAL IS FILED BY THE APPELLANT IS PASSED AS ON 27.03.2006. AS PER FORM NO.35, THE APPELLANT HAS RECORDED THAT THAT THE SAID ASSESSMENT ORDER WAS RECEIVED BY THE APPELLANT ONLY AS ON 29.12.2006. THEREFORE, ON ACCOUNT OF THESE FACTS IT IS NOTED THAT THE APPEAL IS FILED LATE BY MORE THAN THREE MONTHS. IN APPEAL, DURING THE COURSE OF HEARING, THE AR OF THE APPELLA NT, SHRI RAM GOPAL SHARMA, CA VIDE HIS LETTER DATED 12.08.2008 R EGARDING FIRST GROUND OF APPEAL I.E. CONDONATION OF DELAY IN FILING OF THE APPEAL HAS SUBMITTED AS UNDER :- TO CONDONE THE DELAY OF APPEAL FILED : DETAILED SUBMISSION AND REQUEST TO CONDONE THE DELAY IS FILE D ALONG WITH THE APPEAL. CONSIDERING THE FACT THE ASSESSEE WAS NOT HIGHLY EDUCATED AND DEPENDED FULLY ON CHARTERED ACCOUNTANT WHO MISGUIDED HIM AND DID NOT PARTED WITH THE PAPERS BE CAUSE THE ASSESSEE COULD NOT PAY HIS FEES. FROM THE ABOVE FACTS, IT IS CLEAR THAT ASSESSEE WAS HELPLESS AND THE CIRCUMSTANCES WERE BEYOND ASSESSEE S CONTROL. HENCE WE REQUEST YOU TO CONDONE THE DELAY IN FILING THE APPEAL. IT IS FURTHER OBSERVED THAT A LETTER DATED 03.05.20 07 REQUESTING FOR CONDONATION OF DELAY IN FILING THE A PPEAL, FILED BY THE APPELLANT, IS PLACED ON RECORD, AND AS PER THE DATE STAMP PLACED THEREON, THE SAID LETTER WAS RECEIVED IN THI S OFFICE AS ON 13.08.2008 (I.E. ALMOST AFTER MORE THAN MONTHS FROM THE FILING OF APPEAL AS ON 4.5.2007). AS PER THE SAID LETTER, THE REASON FOR THE LATE FILING OF THE APPEAL IS RECORDED AS UNDER :- OUR CLIENT, SHRI SHAKEEL M. SHAREEF HAD NOT RECEIV ED THE ORDER, BECAUSE MR. SHAREEF WAS NOT IN TOWN, HE HAD GONE TO GET HIS FAMILY FROM HOME TOWN. SHRI SHAKEEL IS NOT HIGH LY EDUCATED AND WAS TOTALLY IN FINANCIAL MESS BECAUSE THE MIGRA TION OF STAM REHABILITATION PROJECT WHICH CAUSE DELAY IN COMPLET ING THE PROJECT IN TIME AND WITH PENALTY CLAUSE HANGING ION HEAD, O UR CLIENT WAS HELPLESS AND WAS NOT IN PROPER FORM OF MIND. COMING FROM VERY LOW INCOME BACKGROUND, HE WAS TOTALLY DEPENDENT ON CA TO WHOM HE HAD APPOINTED, BUT SINCE HE COULD NOT PAY H IS FEES THE CA ALSO LEFT HIM IN LURCH AND DID NOT PARTED WITH T HE PAPERS AND ITA NO. 6185/M/09 3 FILED, AFTER MUCH PERSUASION HE GOT THE PAPERS IN N OVEMBER, 2006. NOT FILING THE ASSESSMENT ORDER AND OTHER PAPERS HE APPROACHED THE AO AND OBTAINED THE XEROX COPIES OF THE ASSESSMENT ORDER AND RELEVANT PAPERS. WITH THE HELD OF FRIEND SHRI. RAM GOPAL SHARMA, CA THE ASSESSEE TRIED TO FI LE THE APPEAL BUT DUE TO NON AVAILABILITY OF ORIGINAL NOTICE OF D EMAND, THE APPEAL WAS NOT ACCEPTED. THE ASSESSEE AGAIN APPROACHED THE ASSESSING OFFICER AND OBTAINED ORIGINAL NOTICE OF DEMAND WHICH IS NOW ENC LOSED WITH THE APPLICATION. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES WE REQ UEST YOUR GOODSELF TO CONDONE THE DELAY IN FILING THE AP PEAL. TO ASCERTAIN THE CORRECT FACTS OF THE CASE AS WELL AS CONSIDERING THE ADDITIONAL EVIDENCES FILED BY THE A R, THE MATTER WAS REMANDED TO THE AO FOR HIS DETAILED REPORT VIDE THIS OFFICE LETTER DT. 31.10.2008 WHICH READ AS UNDER :- IN THIS REGARD THE APPELLANT VIDE LETTER DT.12.08.0 8 HAS SUBMITTED AFFIDAVITS OF MR. GYAN CORREA AND MR. SABIN CORREA REGARDING THE CONFIRMATION OF LOAN OF RS.15, 00,000/- ADDED U/S.68 OF THE I.T. ACT. THE AR HAS FURTHER SU BMITTED THAT THE CONFIRMATIONS WERE ALREADY GIVE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ACCORDINGLY THE SAME IS FOUND TO BE AN ADDITIONAL EVIDENCE IS FORWARDED UNDER RUL E 46A OF THE I.T. RULES FOR YOUR COMMENTS / OBJECTIONS IF ANY AS WELL AS TO VERIFY THE CORRECTNESS OF THE SAME. SECONDLY, THE APPEAL IS FILED BY THE APPELLANT ON 4.5.07 AND THE DATE OF RECEIPT OF THE ASSESSMENT OR DER BY THE APPELLANT IN FORM NO.35 IS MENTIONED AS 29.12.2 006. THE ASSESSMENT ORDER IS PASSED ON 27.03.2006. YOU A RE REQUESTED TO VERIFY THE CORRECTNESS OF DATE OF SERV ICE OF THE ASSESSMENT ORDER ON THE APPELLANT AS MENTIONED ABOV E FROM THE CASE RECORDS. PLEASE ENSURE THAT YOU REQUISITE REPORT AS MENTIONE D ABOVE IS FORWARDED TO THIS OFFICE LATEST BY 25.11.2 008 ALONG WITH CASE RECORDS POSITIVELY. IN RESPONSE TO THE SAME, THE AO HAS CONTESTED THE C LAIM OF THE APPELLANT ABOUT THE DELAY IN SERVICE OF THE ASS ESSMENT ORDER. ACCORDING TO THE AO, THE SAID ASSESSMENT ORDER WAS DULY SERVED UPON THE APPELLANT THROUGH POST AS ON 28.03.2006 AN D THE SAME ITA NO. 6185/M/09 4 IS EVIDENCED BY THE SIGNATURE OF THE RECIPIENT OF T HE SAID ASSESSMENT ORDER PLACED ON THE POSTAL ACKNOWLEDGEME NT SLIP AS AVAILABLE IN HER OFFICE. IT IS FURTHER REPORTED BY THE AO THAT BASED ON THE SAID ASSESSMENT ORDER DULY SERVED UPON THE A PPELLANT, THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND R ECOVERY PROCEEDINGS WERE INITIATED AGAINST THE APPELLANT. A CCORDING TO THE AO, THE APPELLANT DULY ATTENDED TO THESE PROCEEDING S AND NEVER RAISED THE ISSUE OF NON RECEIPT OF THE ASSESSMENT O RDER. THE FACTS BROUGHT ON RECORD BY THE AO AS PER HER REPORT SUBMI TTED VIDE HER OFFICE LETTER NO. ITO 19(1)(4)/CIT(A)/REPORT/2009-1 0 DATED 4 TH MAY, 2009 IS AS UNDER :- IN THIS CASE, THE ASSESSMENT ORDER U/S.143(3) WAS PASSED ON 27.03.2006 AND PENALTY U/S. 271(1)(C) WAS LEVIED. THE ASSESSMENT ORDER U/S.143(3) ALONGWITH T HE COMPUTATION FORM, DEMAND NOTICE AND PENALTY NOTICE U/S.274 R.W.S. 271 OF THE I.T. ACT, 1961 WAS DISPAT CHED BY POST ON 28.03.2006. THE POSTAL ACKNOWLEDGEMENT EVIDENCING THE SAME WITH SIGNATURE OF THE RECIPIENT IS ON RECORD. THEREAFTER, A LETTER DT.7.6.2006 WAS ISSUED BY THE AO REGARDING PENALTY U/S. 271(1)(C). THE SAME WAS RECEIVED BY THE ASSESSEE ON 09.06.2006. THE COPY OF THE LETTER IS ENCLOSED. THE ASSESSEE ALSO FILED LETTER DT. 23.06.06 IN RESPONSE TO THE SAME. COPY OF THE LETTE R DATED 23.06.06 OF THE ASSESSEE IS ENCLOSED. THEREAFTER, ANOTHER LETTER DT.07.07.2006 HAS BEEN ISSUED TO THE ASSESSE E IN RESPECT OF RECOVERY OF OUTSTANDING ARREARS IN HIS C ASE. THE SAME HAS BEEN RECEIVED BY THE ASSESSEE ON 10.07.200 6. ANOTHER LETTER DT.07.07.2006 HAS BEEN ISSUED TO THE ASSESSEE GIVING FURTHER ANOTHER OPPORTUNITY IN RESP ECT OF PENALTY PROCEEDINGS. THE SAME HAS ALSO BEEN RECEIVE D BY THE ASSESSEE ON 10.07.2006. COPIES OF THESE LETTERS DATED 07.07.06 IS ENCLOSED. THEREAFTER, THE PENALTY ORDER U/S. 271(1)(C) OF THE ACT.(1)(C) WAS PASSED ON 29.08.2006; WHEREIN IT WAS MENTIONED SPECIFICALLY AT PARA 6 OF THE ORDER THAT THE ASSESSEE DID NOT PREFER APPEAL BEFORE THE CIT(A) NO R REVISION PETITION U/S.264 OF THE I.T. ACT, 1961 BEF ORE THE CIT. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE WAS WELL AWARE OF THE ASSESSMENT ORDER PASSED U/S.143(3 ) AND ALSO REGARDING LEVY OF PENALTY U/S. 271(1)(C). THUS , THE ASSESSEES CONTENTION THAT HE WAS NOT IN RECEIPT OF THE ASSESSMENT ORDER ON 29.12.2006 IS BASELESS AND NOT ACCEPTABLE. ITA NO. 6185/M/09 5 THE ASSESSEE HAS FILED THE APPEAL BEFORE CIT(A) ON 14.03.2007 WHICH IS ALSO BEYOND THE LIMIT OF ONE MO NTH FOR FILING APPEAL BEFORE CIT(A) AS REQUIRED U/S.249(2) OF THE I.T. ACT, 1961. THE DELAY IN FILING OF APPEAL IS NOT DUE TO NON- RECEIPT OF DEMAND NOTICE AND, THEREFORE, THE REASON GIVEN BY THE ASSESSEE FOR NOT FILING THE APPEAL IN TIME I S INCORRECT ON THIS GROUND ALONE, THE DELAY DOES NOT DESERVE TO BE CONDONED. 4. THE LD. CIT(A) HELD THAT THE APPEAL BEING FILED LATE BY THE ASSESSEE BEYOND THE TIME AS PER PROVISIONS OF 249(2 ) OF THE ACT, THE CONDONATION OF DELAY HAS TO BE CONSIDERED AFTER TAK ING INTO ACCOUNT THE REASON GIVEN BY THE ASSESSEE. THE LD. CIT(A) FU RTHER HELD THAT ACCORDING TO THE ASSESSEE, THE ASSESSMENT ORDER WAS RECEIVED AS ON 29.12.2006 AND THE APPEAL FILED ON 4.5.2007 WHEREA S ACCORDING TO THE AO, THE ASSESSMENT ORDER HAS BEEN DULY SERVED UPON THE ASSESSEE AS ON 28.3.2006 AND THE ASSESSEE WAS WELL AWARE OF THE ASSESSMENT ORDER AS THE RECOVERY AND PENALTY PROCEE DINGS INITIATED THEREAFTER WERE ATTENDED BY THE ASSESSEE. THE ASSES SEE DID NOT FILE ANY APPEAL AGAINST THE ASSESSMENT ORDER TILL THE DA TE OF PASSING OF THE PENALTY ORDER. THE LD. CIT(A) HELD THAT THE ASSESS EE HAD RECEIVED THE ASSESSMENT ORDER MUCH BEFORE THE DATE OF RECEIPT ME NTIONED IN FORM NO. 35 I.E. 29.12.2006. FURTHER THE LD. CIT(A) POI NTED OUT THAT THE VERIFICATION OF THE TAPAL REGISTER THAT NO CONDON ATION LETTER HAS BEEN RECORDED AS STATED BY THE ASSESSEE TO HAVE BEEN FIL ED ON 13.8.2008 AND NO CONDONATION LETTER HAD BEEN FILED ALONGWITH THE APPEAL MEMO IN FORM NO. 35. THE LD. CIT(A) ALSO MENTIONED THAT THE ASSESSEE HAS NOT GIVEN ANY SPECIFIC REASON FOR DELAY IN FILING OF THE APPEAL IN THE APPEAL MEMO OR IN THE STATEMENT OF FACTS. HOWEVER, AS PER THE LETTER DT. 3.5.2007, IT HAS BEEN STATED THE ASSESSEE COUL D NOT FILE THE APPEAL ON TIME AND THE REASON GIVEN THEREIN WAS THAT ASSES SEE IS AN UNEDUCATED PERSON AND WAS FACING FINANCIAL DIFFICUL TIES DUE TO LITIGATION GOING WITH REFERENCE TO SLUM REHABILITAT ION PROJECT. THE ASSESSEE FURTHER SUBMITTED THAT DUE TO HIS LOW INCO ME BACKGROUND, HE WAS COMPLETELY DEPENDED ON HIS CHARTERED ACCOUNTANT FOR THE PREPARATION AS WELL AS FILING OF THE APPEAL PAPERS. ITA NO. 6185/M/09 6 5. IT IS ALSO SUBMITTED THAT SINCE THE ASSESSEE COU LD NOT PAY THE FEES OF THE CA, THE SAID CA LEFT HIM IN LURCH AND D ID NOT PART WITH THE PAPERS AND FILES AND AFTER MUCH PERSUASION, HE GOT THE PAPERS IN HIS POSSESSION IN NOVEMBER, 2006 ONLY. IT WAS FURTHER S UBMITTED THAT NOT FINDING THE ASSESSMENT ORDER AND OTHER PAPERS, THE ASSESSEE APPROACHED THE AO AND OBTAINED THE XEROX COPIES OF THE ASSESSMENT ORDER AND THE RELEVANT PAPERS AND THEREAFTER WITH THE HELP OF HIS FRIEND, SHRI RAM GOPAL SHARMA, CA I.E. (THE PRESENT AR), THE ASSESSEE TRIED TO FILE THE APPEAL. HOWEVER, DUE TO NON AVAI LABILITY OF ORIGINALL NOTICE OF DEMAND, THE APPEAL WAS NOT ACCEPTED. IT I S FURTHER SUBMITTED THAT THE ASSESSEE AGAIN APPROACHED THE AO AND OBTAI NED THE ORIGINAL NOTICE OF DEMAND WHICH WAS ENCLOSED WITH HIS APPEAL MEMO BEFORE THE HEARING OF APPEAL BY LD. CIT(A). 6. THE LD. CIT(A) HELD AS FOLLOWS: HOWEVER, A PERUSAL OF THE AOS REPORT AND THE VERIF ICATION OF THE SAME FROM THE CASE RECORDS, IT IS FOUND THAT THE SUBMISSIONS OF THE APPELLANT AS MENTIONED ABOVE ARE COMPLETELY IN CONTRADICTION TO THE FACTS AVAILABLE ON RECORD. THE APPEAL MEMO IN FORM NO.35 FILED AS ON 14.05.2007 IS FOUND TO BE ENCLOSED WITH THE ORIGINAL DEMAND NOTICE DATED 27.03.06 AND THE A SSESSMENT ORDER DATED 27.03.2006. THE STATEMENT MADE BY THE A PPELLANT AS PER HIS CONDONATION FOR DELAY IN FILING OF THE APPE AL AS MENTIONED ABOVE ARE NOT ONLY UNSUBSTANTIATED BUT ALSO FOUND T O BE CONTRARY TO THE FACTS AVAILABLE ON RECORD AS REPORTED BY THE AO AS MENTIONED ABOVE IN HER REMAND REPORT. THE CONTENTIO N OF THE APPELLANT THAT HE HAS RECEIVED THE ASSESSMENT ORDER ONLY AS ON 29.12.2006 IS THEREFORE, FOUND TO BE MISPLACED. THE AO IN HER REPORT AS MENTIONED ABOVE HAS PROVED BEOND DOUBT TH AT THE APPELLANT WAS SERVED WITH THE ASSESSMENT ORDER AS O N 28.03.2006. HOWEVER, THE APPELLANT AS PER HIS WISDO M CHOSE NOT TO FILE APPEAL AGAINST THE SAID ASSESSMENT ORDER. T HE APPELLANT HAS ACTIVELY PARTICIPATED IN THE RECOVERY AS WELL A S IN PENALTY PROCEEDINGS AFTER THE COMPLETION OF THE ASSESSMENT ORDER. THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE TO SUB STANTIATE THAT THE DELAY IN FILING THE APPEAL IS DUE TO HIS PREVIO US CA. NO DETAILS AND EVIDENCES ARE PRODUCED TO ESTABLISH THAT THE AP PELLANT HAS RECEIVED THE ASSESSMENT ORDER OR THE DEMAND NOTICE AFTER THE COMPLETION OF THE PENALTY ORDER AS CONTESTED BY THE AR. FROM THE ITA NO. 6185/M/09 7 AFORESAID DISCUSSION AND BASED ON THE FACTS AVAILAB LE ON RECORD IT IS INFERRED THAT : I) THE APPELLANT HAS MADE A WRONG STATEMENT IN APPEAL MEMO FILLED IN FORM NO. 35 THAT THE ASSESSMENT ORDE R IS RECEIVED ONLY AS ON 29.12.2006, INSTEAD OF ITS PROP ER SERVICE MUCH BEFORE THAT AS HELD ABOVE, II) THE AR OF THE APPELLANT AS PER HIS LETTER DATED 12. 08.2008 FILED DURING THE COURSE OF APPEAL, IN RESPECT OF GR OUND NO.1 HAS WRONGLY STATED THAT DETAILED SUBMISSION AND REQ UEST TO CONDONE THE DELAY IS FILED ALONG WITH THE APPEAL . FROM THE RECORDS OF THIS OFFICE AS DISCUSSED ABOVE IT IS ASCERTAINED THAT NO SUCH CONDONATION FOR DELAY IN F ILING THE APPEAL WAS FILED BY THE APPELLANT. THE CONDONATION FOR DELAY IN FILING THE APPEAL AS MENTIONED ABOVE AS FO UND TO BE PLACED ON RECORD IS DATED 03.05.2007 AND AS PER THE DATE STAMP OF THIS OFFICE PLACED THEREON THE SAME I S RECEIVED ONLY AS ON 13.08.2008. NO SUCH ENTRY ABOUT THE RECEIPT OF SUCH CONDONATION LETTER IS FOUND TO BE E NTERED IN THE TAPAL REGISTER OF THIS OFFICE AS ON 13.08.2008, III) THERE IS NOTHING BROUGHT ON RECORD BY THE APPELLANT TO ESTABLISH AS CONTESTED IN THE SAID CONDONATION LETT ER THAT THE APPELLANT WAS PREVENTED TO FILE THE APPEAL ON T IME DUE TO THE NON-COPERATION OF HIS EX-AUTHORIZED REPRESEN TATIVE, IV) AS PER THE FIRST PARA OF THE SAID CONDONATION LETTE R THE APPELLANT GOT HIS INCOME TAX FILE FROM HIS EX-CA AF TER MUCH PERSUASION IN NOVEMBER, 2006 BUT AT THE SAME TIME H E IS CONTENDING THAT THE APPEAL IS FILED ON THE BASIS OF DUPLICATE SET OF ASSESSMENT ORDER AND RELATED DOCUMENTS OBTAI NED FROM THE AO. FROM THE PERUSAL OF THE DOCUMENTS FILE D ALONGWITH HIS APPEAL IN FORM NO.35 IT IS NOTICED TH AT THE COPY OF THE ASSESSMENT ORDER FILED IS A XEROX COPY WHEREAS THE DEMAND NOTICE FIILED IS A ORIGINAL COPY INSTEAD OF DUPLICATE COPY AS CONTESTED, AND V) THE EXPLANATION AND REASONS OF THE APPELLANT AS MEN TIONED ABOVE FOR NOT FILING HIS APPEAL ON TIME AS REQUIRED AS PER THE PROVISIONS OF SECTION 249(2) IS THEREFORE, UNSUBSTANTIATED AND ALSO FOUND TO BE SELF CONTRADIC TORY AND CONTRARY TO THE FACTS AVAILABLE ON RECORD. THEREFORE, ON ACCOUNT OF THE ABOVE NOTED FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THERE IS NO SUFFICIENT CAUSE FOR DELAY IN FILING OF THE APPEAL BY THE APPELLANT WITHIN THE MEANING OF SUB-SECTION(3) TO SECTION 249 OF THE ACT , AND ITA NO. 6185/M/09 8 ACCORDINGLY, THE CONDONATION FOR DELAY IN FILING OF THE APPEAL IS REJECTED. 7. ON FURTHER APPEAL BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SHRI R. PRASAD RAO SUBMITTED THAT THE ASSESSEE WAS AN UNEDU CATED PERSON COMING FROM A VERY LOW BACKGROUND AND HE WAS COMPLETELY GU IDED BY THE CHARTERED ACCOUNTANT WITH RESPECT TO APPEARANCE BEFORE AUTHOR ITIES AND FILING OF APPEAL. THE C.A. HAD NOT CO-OPERATED WITH THE ASSES SEE AND HAD KEPT HIM IN THE DARK AND AFTER GETTING THE HELP OF FRIEND SHRI RAM GOPAL SHARMA, THE PRESENT AR, THE ASSESSMENT ORDER AND PAPERS AND THE ORIGINAL NOTICE OF DEMAND WERE SOUGHT FOR FROM THE AO. THE EX-C.A. HA D MISGUIDED THE COMMISSIONER OF INCOME TAX AND ALSO NOT FILED THE CO NDONATION OF DELAY IN FILING THE APPEAL ALONGWITH THE APPEAL PAPERS FILED BY THE ASSESSEE AS ON 4.5.2007. THE CONDONATION FOR DELAY IN FILING THE APPEAL AS MENTIONED ABOVE WHICH WAS FOUND TO BE PLACED ON RECORD DT. 3.5.2007 (AS PER THE DATE STAMPED), THE SAME HAS BEEN RECEIVED ONLY ON 13.8.2 008. THEREFORE, THE EX- C.A. HAD INTENTIONALLY CONFUSED THE DATES OF FILING THE CONDONATION LETTER AND MISGUIDED THE LD. CIT(A). 8. THE LD. COUNSEL FOR THE ASSESSEE APPEARED BEFORE US AND TOOK US THROUGH PAGE 25 OF THE PAPER BOOK WHEREIN THE AFFID AVIT OF THE FORMER CHARTERED ACCOUNTANT STATED AS FOLLOWS: I, MR. N.S. BHONSLE, CHARTERED ACCOUNTANT, RESIDIN G AT KAMGAR NAGAR CO.OP. HSG. SOC., 501, 5 TH FLOOR, VERSOVA, ANDHERI (W), MUMBAI-400 061, HEREBY STATES THAT I HAVE COLLECTED THE ORIGINAL ASSESSMENT ORDER OF SHRI SHAKEELMOHAMMED SHAREEF AN D WITHHELD IT DUE TO NON-PAYMENT OF MY PROFESSION DUE S/FEES. I AM STILL HOLDING THE ORIGINAL ASSESSMENT ORDER WIT H ME. SD/- DT. 20.11.2008 SIGN. OF APPLICANT 9. THE LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OU T AT PAGE 13 & 14 CONTAINING REQUEST FOR ISSUE OF COPIES OF CERTAIN A SSESSMENT RECORDS MADE BY THE ASSESSEE FOR RECREATING THE FILE HAS BEEN PRODU CED. ITA NO. 6185/M/09 9 10. WE HEARD BOTH THE PARTIES. WE FIND THAT THE AS SESSEE IS AN ILLITERATE PERSON WHO HAS NOT GOT ANY KNOWLEDGE OF THE ASSESSM ENT AND APPEAL PROCEEDINGS AND TOTALLY DEPENDENT UPON THE CHARTERE D ACCOUNTANT. THE C.A. BY HIS OWN CONFESSION HAS STATED THAT HE HAD WITHHE LD THE FILES ON ACCOUNT OF NON-PAYMENT OF HIS FEES. THEREFORE, THE ASSESSEE W AS UNABLE TO REPRESENT BEFORE THE LOWER AUTHORITIES. ONLY ON THE INTERVEN TION OF HIS FRIEND, HE WAS ABLE TO RECREATE THE FILES. THE FALSE STATEMENT WI TH RESPECT TO THE DATE OF FILING THE CONDONATION PETITION FOR DELAY AND THE D ATES IN FORM NO. 35 WHICH WAS WRONGLY WRITTEN WAS DUE TO THE UNSCRUPULOUS ATT ITUDE OF THE C.A. WHO HAD TAKEN CHARGE OF HIS FILE EARLIER. IN THESE CIRC UMSTANCES, DUE TO THE IGNORANCE OF THE ASSESSEE THERE SEEMS TO BE A REASO NABLE CAUSE FOR DELAY IN FILING THE APPEAL AND IN THE INTEREST OF JUSTICE RE LYING ON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAN D ACQUISITION VS. MST. KATIJI AND OTHERS [(1987) 167 ITR 471 (SC)] AND ALS O IMPROVEMENT TRUST, LUDHIANA VS. UJGAR SINGH & ORS. DATED JUNE, 09, 201 0, WE CONDONE THE DELAY AND SEND BACK THE FILE TO THE LD. CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF AUGUST, 2011 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 26 TH AUGUST, 2011 RJ ITA NO. 6185/M/09 10 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 6185/M/09 11 DATE INITIALS 1. DRAFT DICTATED ON: 16 . 8 . 2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 17.08.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: