Mamta Yogesh Shah, Vijayawada V. The Income Tax Officer, Ward-1(1), Vijayawada

ITA 622/VIZ/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8949 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B RAMA KRISHNA
• Assessee Lawyers: M MADHUSUDAN
• Keywords: Condonation of delay; Bonafide mistake

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM (THROUGH WEB - BASED VIDEO CONFERENCING PLATFORM) BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER I.T.A. NO. 622/VIZ/2019 (ASST. YEAR : 2012 - 13) SMT. MAMTA YOGESH SHAH, D.NO. 11 - 14 - 21, 2 ND FLOOR, SBI BANK UPSTAIRS, VELAGALETIVARI STREET, KOTHAPET, VIJAYAWADA. VS. ITO, WARD - 1(1) VIJAYAWADA. PAN NO. DRUPS 0533 N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. MADHUSUDAN, CA. DEPARTMENT BY : SHRI B.RAMA KRISHNA, SR.DR DATE OF HEARING : 08/01/2021. DATE OF PRONOUNCEMENT : 08/01/2021. O R D E R PER N.K. CHOUDHRY , JUDICIAL MEMBER BY THIS ORDER WE SHALL DISPOSE OFF THE ASSESSEES APPLICATION DATED 02/11/2019 FILED ON DATED 07 TH JANUARY 2021 FOR CONDONATION OF DELAY. 2. DURING THE HEARING OF APPEAL, IT WAS OBSERVED BY THE BENCH THAT THERE IS A DELAY OF 221 DAYS IN THE FILING OF THE INSTANT APPEAL, THEREFORE, THE BEN CH FOUND IT APPROPRIATE TO ADJUDICATE FIRST THE A PPLICATION OF ASSESSEE FOR CONDONATION OF DELAY FILED ON DATED 07 TH JANUARY 2021. 2 2.1 THE APPEAL IS REQUIRED TO BE FILED WITHIN TIME, HOWEVER, IF THE SAME IS NOT FILED WITHIN TIME THEN IT MUST BE SUPPORTED BY AN APPLICATION FOR CONDONATION OF DELAY. IN THIS CASE THOUGH THE ASSESSEE FILED AN DULY SWORN AFFIDAVIT IN SUPPORT OF PRAYER FOR CONDONATION OF DELAY ALONG WITH THE APPEAL, HOWEVER FAILED TO FILE ANY APPLICATION QUA CONDONATION OF DELAY ALONG WITH APPEAL. ON QUERY IT WAS SUBMITTED BY THE ASSESSEE THAT DUE TO OVERSIGHT THE SAID APPLICATION COULD NOT BE FILED ALONG WITH APPEAL ITSELF, HOWEVER REALIZING THE BONAFIDE MISTAKE IMMEDIATELY FILED O N DATED 07 TH JANUARY 2021. THE QUESTION EMERGE AS TO WHETHER APPLICATION FOR CONDONATION OF DELAY, FILED AT BELATED STAGE CAN BE ENTERTAINED AND MAINTAINABLE OR NOT . 2.2 THE APEX COURT IN THE CASE OF STATE OF M.P. AND ANR VS PRADEEP KUMAR AND ANR, DECIDED ON 12 T H SEPTEMBER, 2000 { 2000 SUPP (3) SCR 235 } HAS H ELD : THE OBJECT OF ENACTING RULE 3 - A IN ORDER 41 OF THE CODE SEEMS TO BE TWO - FOLD. FIRST IS, TO INFORM THE APPELLANT HIMSELF WHO FILED A TIME BARRED APPEAL THAT IT WOULD NOT BE ENTERTAINED UNLESS IT IS ACCOMPANIED BY AN APPLICATION EXPLAINING THE DELAY. SECOND IS, TO COMMUNICATE TO THE RESP ONDENT A MESSAGE THAT IT MAY NOT BE NECESSARY FOR HIM TO GET READY TO MEET THE GROUNDS TAKEN UP IN THE MEMORANDUM OF APPEAL BECAUSE THE COURT HAS TO DEAL WITH APPLICATION FOR CONDONATION OF DELAY AS A CONDITION PRECEDENT. BARRING THE ABOVE OBJECTS, WE CANN OT FIND OUT FROM THE RULE THAT IT IS INTENDED TO OPERATE AS UNREMEDIABLY OR IRREDEEMABLY FATAL AGAINST THE APPELLANT IF THE MEMORANDUM IS NOT ACCOMPANIED BY ANY SUCH APPLICATION AT THE FIRST INSTANCE. IN OUR VIEW, THE DEFICIENCY IS A CURABLE DEFECT, AND IF THE REQUIRED APPLICATION IS FILED SUBSEQUENTLY THE APPEAL CAN BE TREATED AS PRESENTED IN ACCORDANCE WITH THE REQUIREMENT CONTAINED IN RULE 3 - A OF ORDER 41 OF THE CODE . 2.3 RESPECTFULLY , FOLLOWING THE DICTUM OF THE APEX COURT, WE ARE OF THE CONSIDERED OPINION THE APPLICATION FOR CONDONATION OF DELAY FILED IN APPEAL AT LATER STAGE IS ALSO MAINTAINABLE AND ENTERTAINABLE. LET US TO PROCEED ON MERITS OF THE APPLICATION FOR CONDONATION OF DEL AY. 3 3. THE ASSESSEE IN SUPPORT OF CONDONATION OF DELAY HAS SUBMITTED T HAT THE ORDER PASSED BY THE LD. CIT(A) DATED 07/01/2019 WAS GOT SERVED ON THE ASSESSEES AR SHRI SURESH KUMAR JAIN, CA VIJAYAWADA ON 31/01/2019, WHO IN TURN FORWARDED A COPY OF THE SAME TO THE ASSESSEE IMMEDIATELY BUT IT WAS RECEIVED BY THE ASSESSEES MOTHER - IN - LAW SMT. MOHINIDEVI W/O MAHENDRA SHAH, AGED ABOUT 65 YEARS. UNFORTUNATELY, DUE TO OLD AGE AILMENTS, IT WAS MISPLACED BY HER. THE ASSESSEE COULD KNOW ABOUT THIS FACTUAL POSITION RECENTLY, WHEN THE INCOME TAX AUTHORITIES DEMANDED DISCHARGE OF THE OUTSTANDING LIABILITY, THEN SHE IMMEDIATELY CONTACTED HER LD.AR ABOUT THE SCOPE OF FILING OF APPEAL BEFORE THE ITAT. AS THE LD.AR WAS PRE - OCCUPIED WITH STATUTORY AUDIT WORK AS LAID DOWN BY SECTION 44A OF THE ACT AND FILING OF RETURNS OF INCOME BY 31/10/2019, HE SUGGESTED THE ASSESSEE TO APPROACH SOME OTHER TAX CONSULTANT FOR DOING NEEDFUL. ACCORDING LY, THE ASSESSEE APPROACHED HER CLOSE RELATIVE SHRI OM PRAKASH AGARWAL TO ASSIST HER IN FILING OF SECOND APPEAL AND IN TURN HE APPROACHED AN ADVOCATE, VIJAYAWADA WHO TAKES UP APPEAL WORKS BEFORE THE ITAT. AS ADVISED BY THE ADVOCATE, ASSESSEE PAID APPEAL F EE OF RS.8,680/ - IMMEDIATELY ON 22/10/2019 AND ALSO ADVISED HER TO FURNISH FORM NO.26AS AS THE PARTICULARS COVERING HEAD OF ACCOUNT WERE NOT REFLECTED IN THE CHALLAN ISSUED BY THE SBI. THE ABOVE FORM NO. 26AS COULD BE COLLECTED AND HANDED OVER TO THE AD VOCATE FOR PREPARATION OF APPEAL PAPERS ON 31/10/2019 EVENING. THE ADVOCATE TOOK STEPS FOR PREPARATION OF APPEAL PAPERS IN FORM NO. 36 AND ACCORDINGLY THE APPEAL WAS FILED BEFORE THE ITAT, VISAKHAPATNAM WITH A DELAY OF 221 DAYS (RECKONED UPTO 7 TH NOVEMBER , 2019) WHICH COULD BE THE PROBABLE DATE OF RECEIPT OF THE SAME IN THE OFFICE OF ITAT, VISAKHAPATNAM. 4 3.1 . LD.AR ALSO SUBMITTED THAT THE ASSESSEE HAS ALREADY INITIATED PROCESS FOR SETTLING THE DISPUTE UNDER THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (HEREINAFTER CALLED AS THE VSV SCHEME) AND RECEIVED FORM NO.1 AND LIKELY TO RECEIVE FORM NO.3 IN DUE COURSE OF TIME SUBJECT TO THE ADMISSION OF THE INSTANT APPEAL. 3.2 . LD. DR HAS RAISED NO OBJECTION ON THE APPLICATION FOR CONDONATION OF DELAY, IF THE A SSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME. 3.3 . H EARD THE PARTIES AND CONSIDERED THE SUBMISSIONS AND DOCUMENTS SPECIFICALLY AFFIDAVIT OF THE ASSESSEE, AVAILABLE ON RECORD. T HE LAW IS WELL SETTLED BY THE HIGHER COURTS THAT WHILE DEALING WITH THE APPLICATION FOR CONDONATION OF DELAY, THE COURT IS TO SEE THE CONDUCT OF THE PARTY AND PLAUSIBLE REASONING FOR NON FILING OF THE STATUTORY APPEAL WITHIN TIME. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE . THE POWER TO CONDONE THE DELAY IN APPROACHING THE COURT HAS BEEN CONFERRED UPON THE COURTS TO ENABLE THEM TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING THE CASES ON MERIT. 3.4 . THE APEX COURT IN COLLECTOR, LAND ACQUISITION, ANANTNAG V. MST. KATIJI (1987) I LLJ 500 SC , ANALYZED THE PROVISIONS OF LAW QUA LIMITATION ACT AND HELD THAT THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IN THE LIMITATION ACT IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB - SERVES THE ENDS OF JUSTICE - THAT BEING THE LIFE PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT WAS FURTHER OBSERVED THAT A LIBERAL APPROACH IS LIABLE TO BE ADOPTED ON PRINCIPLE. 5 3.5 . THE APEX COURT IN NAND KISHORE V. STATE OF PUNJAB (1995) 6 SCC 614, UNDER THE PECULIAR CIRCUMSTANCES OF THE CASE CONDONED THE DELAY OF ABOUT 31 YEARS, IN APPROACHING THE APEX COURT. 3.6 . IT IS WELL SETTLED THAT BONAFIDE LIS CANNOT BE THROWN OUT ON THE BASIS OF LEGAL TECHNICALITIES AN D IT IS UTMOST DUTY OF THE COURTS TO ADJUDICATE THE SAME. AS IT IS WELL SETTLED THAT THE PERIOD OF DELAY IS NOT RELEVANT FOR CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY. WHAT IS REQUIRED TO BE SEEN IS AS TO WHETHER A PARTY SEEKING CONDONATION OF D ELAY HAS MADE OUT A SUFFICIENT CAUSE OR NOT. 3.7 . IN THE INSTANT CASE, THE ASSESSEE HAS DEMONSTRATED THE REASONS (ENUMERATE D IN PARA NO.3 ABOVE ) FOR NON - FILLING OF T HE APPEAL WITHIN THE TIME LIMIT. THE ASSESSEE SPECIFICALLY AVERRED THAT HER COUNSEL FORWARDED A COPY OF THE SAME TO THE ASSESSEE IMMEDIATELY BUT IT WAS RECEIVED BY THE ASSESSEES MOTHER - IN - LAW WHO IS AGED ABOUT 65 YEARS AND SOMEHOW DUE TO OLD AGE AILMENTS , SHE MISPLACED THE SAID ORDER AND SKIPPED TO INFORM THE ASSESSEE AND THEREFORE THE ASSESSEE DID NOT RECEIVE THE SAID ORDER . HOWEVER IMMEDIATELY AFTER GETTING THE KNOWLEDGE QUA PASSING OF ORDER AGAINST THE ASSESSEE, THE ASSESSEE ACTED DILIGENTLY AND FILED THE APPEAL WITH DELAY OF 221 DAYS WHICH OCCURRED UNINTENTIONALLY AND BONAFIDELY. T HE EXPLANATION OF THE ASSESSEE IS SUPPORTED BY HER AFFIDAVIT AND THE DEPARTMENT DID NOT EXPRESSLY REFUTE THE STAND TAKEN BY THE ASSESSEE. THE DELAY CAN BE EXPLAINED AS BONAFIDE MISTAKE IF ANY OCCURRED DUE TO THE NON - COMMUNICATION OF THE IMPUGNED ORDER UPON THE ASSESSEE THEREFORE THERE SEEMS TO BE NO MALAFIDE INTENTION FOR CAUSING DELAY BUT THE SAME PRIMA FACIE APPEARS TO BE BONAFIDE AND REA SONABLE , HENCE IN OUR CONSIDERED OPINION THE ASSESSEE HAS SHOWN THE SUFFICIENT CAUSE FOR 6 DELAY AND THEREFORE THE DELAY OF 221 DAYS IN FILING OF THE APPEAL DESERVE S TO BE CONDONED. EVEN THE ASSESSEE INTENDS TO GET SETTLED THE DISPUTE THROUGH THE VSV SCHEME AND ALREADY INITIATED THE PROCESS AND WILLING TO PAY THE RELEVANT TAXES. IT IS THE PUBLIC POLICY OF NATION THAT LITIGATIONS MUST COME TO AN END. HENCE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES COLLECTIVELY, WE ARE INCLINED TO ADMIT THE APPE AL BY CONDONING THE DELAY OF 221 DAYS IN FILING OF THE APPEAL, CONSEQUENTLY THE DELAY STANDS CON DONED. 4 . APPEAL IS ADMITTED . 5 . THE REGISTRY IS DIRECTED TO POST THIS APPEAL FOR HEARING ON 25/01/2021 . HEARING OF THE CASE WAS ALREADY PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF PARTIES HENCE NO NEED TO SEND THE NOTICE TO THE PARTIES. 6 . IN THE RESULT, APPLICATION FOR CONDONATION OF DELAY FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 08 TH DAY OF JAN., 2021. S D / - S D / - (D.S. SUNDER SINGH) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 08 TH JANUARY, 2021. VR/ - 7 COPY TO: 1. THE ASSESSEE - SMT. MAMTA YOGESH SHAH, D.NO. 11 - 14 - 21, 2 ND FLOOR, SBI BANK UPSTAIRS, VELAGALETIVARI STREET, KOTHAPET, VIJAYAWADA. 2. THE REVENUE ITO, WARD - 1(1), VIJAYAWADA. 3. THE PR.CIT, VIJAYAWADA. 4. THE CIT(A), VIJAYAWADA. 5. THE D.R., VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.