ESMAIL SALEBHAI COLOMBOWLA, PUNE V. ITO (IT) 1(1), MUMBAI

ITA 6313/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0995 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 07-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI D.K. AGARWAL, J.M. AND SHRI A.L. GEHLOT , A.M. ITA NO. 6313/M/2009 ASSESSMENT YEAR: 2005-06 ESMAIL SALEBHAI COLOMBOWALA, APPELLANT HERMES HERITAGE PHASE II & III CO-OP. HSG. SOC. LTD., ROW HOUSE 23, SHASHTRI NAGAR, OFF NAGAR ROAD, YERWADA, PUNE 411 006. (PAN ACFPC2940L) VS. INCOME TAX OFFICER, INTERNATIONAL TAXATION 1(1), RESPONDENT SCINDIA HOUSE, BALLARD ESTATE, MUMBAI 400 038 APPELLANT BY : NONE RESPONDENT BY : R.S. SRIVASTAVA ORDER PER A.L. GEHLOT, A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- 10, MUMBAI, PASSED ON 01.10.2009 FOR THE ASSESSMENT YEAR 2005-06. 2. THE GROUND RAISED BY THE ASSESSEE IN THE APPEAL IS THAT CIT(A) ERRED IN NOT CONDONING THE DELAY OF 19 DAYS IN FILING THE APPEAL BY THE ASSESSEE BEFORE HIM. ON MERIT THE GRO UND RAISED BY THE REVENUE IS IN RESPECT OF DISALLOWANCE OF RS. 1, 00,000/- OUT OF VEHICLE MAINTENANCE ACCOUNT ON ADHOC BASIS. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING. HOWEVER, AFTER HEARING THE LEARNED DR, WE PROCEED TO DISPOSE OF THIS APPEAL ON MERITS. 4. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A), WHI CH WAS DELAYED BY 19 DAYS. THE ASSESSEE FILED AN AFFIDAVIT TO THIS EFFECT DATED 27 TH FEBRUARY, 2007 BEFORE THE CIT(A) AFFIRM THE REASON S OF ITA NO. 6313/M/2009 ESMAIL SALEBHAI COLOMBOWALA. 2 THE DELAY. THE DELAY WAS ON ACCOUNT OF THE ORDER PA SSED U/S 143(3), WHICH WAS PERSONALLY RECEIVED BY HIS CHARTE RED ACCOUNTANT, WHO FORWARDED THE SAME TO THE ASSESSEE TO HIS PUNE ADDRESS. THE CONTENTION OF THE ASSESSEE WAS THAT THE DELAY WAS P URELY BASED ON THE CIRCUMSTANCES WHICH WERE BEYOND HIS CONTROL AND THE DELAY WAS NOT DUE TO DELIBERATELY DELAYED IN FILING THE APPEA L. THE CIT(A) DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE AND D ISMISSED THE APPEAL IN-LIMINE. 5. AFTER HEARING THE LEARNED DR AND PERUSING THE RE CORD, WE FIND THAT THERE IS DELAY IN FILING THE APPEAL BY 19 DAYS AND THE ASSESSEE HAD FILED AN AFFIDAVIT AFFIRMING THE REASONS FOR DE LAY THEREIN. THE CIT(A) HAS NOT CONTROVERTED THE FACT STATED IN THE AFFIDAVIT. THE REASONS STATED FOR DELAY THAT THE ORDER PASSED U/S 143(3) RECEIVED BY HIS CHARTERED ACCOUNTANT, WHO FORWARDED THE SAME BY POST TO HIS ADDRESS AT PUNE, THEREFORE, THERE WAS A DELAY O F 19 DAYS IN FILING THE APPEAL. WE ARE OF THE VIEW THAT THE ASSE SSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FOR NO T FILING THE APPEAL WITHIN THE PRESCRIBED TIME AND THERE IS NO M ATERIAL ON RECORD TO ESTABLISH THAT THE ASSESSEE HAS DELIBERAT ELY FILED THE APPEAL BELATEDLY. IN THE INTEREST OF JUSTICE, THE C IT(A) OUGHT TO HAVE CONDONED THE DELAY. WE DIRECT THE CIT(A) TO ADMIT T HE APPEAL BY CONDONING THE DELAY AND DECIDE THE APPEAL ON MERIT AFTER PROVIDING OPPORTUNITY OF HEARING TO BOTH THE SIDES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JULY, 2010. SD/- SD/- (D. K. AGARWAL) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 28 TH JULY, 2010 ITA NO. 6313/M/2009 ESMAIL SALEBHAI COLOMBOWALA. 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 28.7.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 28.7.10 SR.P.S/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.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER