LIMJI R NANABHOY, MUMBAI V. ITO WD 6(3)(3), MUMBAI

ITA 6378/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4210 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 16-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALIK SINGH
• Assessee Lawyers: ISHWAR PRAKASH RATHI
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 6378/MUM/2011 ASSESSMENT YEAR : 2006-07 LIMJI R. NANABHOY 1, JER MANSION 70, AUGUST KRANTI MARG MUMBAI-400 036.. PAN NO. AAGPN 6653 G VS. INCOME TAX OFFICER WARD 6(3)(3) MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ISHWAR PRAKASH RATHI REVENUE BY : SHRI KALIK SINGH DATE OF HEARING : 01.07.2013 DATE OF PRONOUNCEMENT : 05/07/ 13 O R D E R PER B. RAMAKOTAIAH, AM: THIS IS AN ASSESSEES APPEAL AGAINST THE ORDER OF C IT(A)-12, MUMBAI DATED 21.7.2011. THE ASSESSEE HAS RAISED THE FOLLOWING TWO GROUNDS :- I) THAT THE LEARNED. CIT(A) HAS ERRED IN DISMISSI NG THE APPEAL ON ACCOUNT OF DELAY IN FILING OF THE APPEAL BY 129 DAY S. II) THAT THE LEARNED. CIT(A) HAS ERRED IN DISMISSIN G THE APPEAL WITHOUT CONSIDERING THE GROUNDS OF APPEAL ON MERIT. 2. BRIEFLY STATED, THE ASSESSEE WAS AN EMPLOYEE OF M/S. MARISON FINVEST PVT. LTD. AND OFFERED SALARY INCOME. THE R ETURN WAS TAKEN UP FOR ITA NO.6378/M/11 A.Y.06-07 LIMJI R. NANABHOY 2 SCRUTINY AND THE AO NOTICED THAT THE ASSESSEE HAD R ECEIVED AN AMOUNT OF RS.10.00 LACS WHICH WAS DEPOSITED IN THE BANK ACCOU NT ON 21.05.2005. IT WAS SUBMITTED BY THE ASSESSEE THAT THIS SOURCE O F DEPOSIT OF RS.10.00 LACS ON 21.05.2005 RELATES TO CHEQUE NO.940228 ISSU ED BY M/S. PARAG PRAEKH FINANCIAL ADVISORY SERVICES LTD. AMOUNT TOWA RDS HIS INHERITED SHARE AND INVESTMENT FROM HIS FATHER ON HIS DEATH. ON THE REASON, THAT ASSESSEE DID NOT FURNISH ANY EVIDENCE AND DID NOT C OMPLY TO THE NOTICE DATED 19.11.2008, THE AO MADE AN ADDITION OF RS.10. 00 LACS TO THE RETURNED INCOME. THE ASSESSEE CONTESTED THE SAME BE FORE THE LD. CIT(A). THE APPEAL WAS PREFERRED ON 4.5.2009 WITH A DELAY O F 129 DAYS. THE ASSESSEE EXPLAINED THAT HE WAS TRAVELLING ABROAD IN THE MONTHS OF DECEMBER, 2008 AND JAN 2009 AND LATER IN INDIA TILL MAY, 2009 AND IN SUPPORT ENCLOSED COPY OF THE PASSPORT SHOWING VISIT TO AUSTRALIA. THE LD. CIT(A) HOWEVER DISMISSED THE ASSESSEES CONTENTION S AND DID NOT ALLOW THE CONDONATION PRAYED FOR, THEREFORE, THE APPEAL W AS DISMISSED AS UNADMITTED. 3. BEFORE US, THE LD. COUNSELS PLEA IS THAT THE AS SESSEE HAS GIVEN THE AFFIDAVIT EXPLAINING REASONS FOR FILING THE APPEAL BELATEDLY AND RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS (167 ITR 471 )(SC). THE LD. DR HOWEVER RELIED ON THE ORDERS OF CIT(A). 4. WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM THE P ASSPORT AS WELL AS SUBMISSION MADE IN THIS REGARD, THERE IS NO DISPUTE WITH REFERENCE TO THE ASSESSEE BEING OUT OF INDIA IN THE MONTH OF DECEMBE R 2008 AND JANUARY 2009 AND SUBSEQUENTLY TRAVELLING, FOR HIS EMPLOYMEN T PURPOSE, AS HE LEFT THE JOB WITH M/S. MARISON FINVEST PVT. LTD. AS SEEN FROM THE RETURN FILED FOR THE ASSESSMENT YEAR 2009-10,IE THE YEAR ENDED 3 1.3.2009, AS AGAINST RS.4,67,580/- RECEIVED AS SALARY IN THE EARLIER YEA R THE ASSESSEE RECEIVED ONLY AN AMOUNT OF RS.1,07,895/- AND A LEAVE SALARY OF RS.52,000/- ITA NO.6378/M/11 A.Y.06-07 LIMJI R. NANABHOY 3 WHICH INDICATES THAT THE ASSESSEE LEFT EMPLOYMENT A T THAT POINT OF TIME. THEREFORE, WE ARE OF THE VIEW THAT THERE IS SUFFICI ENT CAUSE FOR FILING APPEAL BELATEDLY BEFORE CIT(A) AND THE LD. CIT(A) S HOULD HAVE CONDONED THE DELAY. 4.1 IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS (SUPRA), THE HON'BLE SUPREME COURT HELD AS U NDER :- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF M ATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE IN SECTION 5 IS A DEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE- THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. A JUSTIFIAB LY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT IMPL Y A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONA L, COMMON SENSE AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREATMENT AND THE LAW IS ADMINISTERED IN AN EVEN HANDED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEP- MOTHERLY TREATMENT WH EN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 4.2 RESPECTFULLY FOLLOWING THE ABOVE PROPOSITION, S INCE THE AO MADE AN ADDITION OF RS.10.00 LACS WHICH WAS STATED TO HAVE BEEN FROM A FINANCIAL COMPANY OUT OF HIS FATHERS INVESTMENT, WE CAN CONSI DER IT A CASE INVOLVING SUBSTANTIAL JUSTICE AND THEREFORE, WE DEE M IT NECESSARY AND REASONABLE TO CONDONE THE DELAY IN FILING THE APP EAL BELATEDLY BEFORE LD. ITA NO.6378/M/11 A.Y.06-07 LIMJI R. NANABHOY 4 CIT(A). THEREFORE, GROUND NO.1 OF THE ASSESSEE IS C ONSIDERED ALLOWED. SINCE APPEAL WAS NOT CONSIDERED ON MERITS, WE DIREC T THE LD. CIT(A) TO EXAMINE THE ISSUE ON MERITS BY GIVING DUE OPPORTUNI TY OF HEARING TO THE ASSESSEE. IN CASE OF ANY REQUIREMENT THE LD. CIT(A) IS FREE TO REMAND THE MATTER TO THE AO FOR FURTHER EXAMINATION. WITH THES E DIRECTIONS, THE GROUND NO.1 IS CONSIDERED ALLOWED AND GROUND NO.2 I S SET ASIDE TO THE FILE OF LD. CIT(A) FOR CONSIDERING THE APPEAL ON MERITS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.07. 2013. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 05/07/13. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.