Smt. Bandlamudi Lakshmi, Guntur V. The Income Tax Officer, Ward-2(2), Guntur

ITA 651/VIZ/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6833 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 29-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 201

Judgement Text

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. 651 /VIZ/2019 (ASST. YEAR : 201 6 - 1 7 ) SMT. BANDLAMUDI LAKSHMI , D.NO. 4 - 5 - 1B, LAKSHMI NILAYAM, NAVABHARATH NAGAR, GUNTUR. VS. ITO, WARD - 2 ( 2 ) GUNTUR . PAN NO. AGRPB 0536 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI , ADVOCATE . DEPARTMENT BY : SHRI B.RAMA KRISHNA,SR.DR DATE OF HEARING : 27 /01/2021. DATE OF PRONOUNCEMENT : 27 /01/2021. O R D E R PER N.K. CHOUDHRY , JUDICIAL MEMBER BY THIS ORDER WE SHALL DISPOSE OFF THE ASSESSEES APPLICATION DATED 05 / 0 1/20 21 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 3 4 DAYS IN FILING OF THE INSTANT APPEAL, 2 ITA NO.651/VIZ/2019 (SMT. BANDLAMUDI LAKSHMI) THEREFORE, THE BENCH FOUND IT APPROPRIATE TO ADJUDICATE FIRST THE A PPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY FILED ON DATED 07 TH JANUARY 2021. 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 AFFIDAVIT ALONG WITH APPLICATION FOR CONDONATION OF DELAY. IN THIS CASE THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH CONDONATION OF DELAY APPLICATION SUBSEQUENT TO THE FILING OF THE APPEAL . 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 & ANR . , DECIDED ON 12 TH SEPTEMBER, 2000 {2000 SUPP (3) SCR 235 } HAS HELD AS UNDER : 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 3 ITA NO.651/VIZ/2019 (SMT. BANDLAMUDI LAKSHMI) FILED AT A LATER STAGE IS ALSO MAINTAINABLE AND ENTERTAINABLE. LET US TO PROCEED ON MERITS OF THE APPLICATION FOR CONDONATION OF DELAY. 3 . I N SUPPORT OF CONDONATION OF DELAY, THE ASSESSEE HAS MENTIONED THE FOLLOWING FACTS IN THE APPLICATION: THAT THE ORDER WAS RECEIVED BY THE APPELLANT ON 27/08/2019. AS SUCH THE APPEAL AGAINST THE SAID ORD E R OUGHT TO HAVE BEEN FILED ON OR BEFORE 26/10/2019. HOWEVER, THE APPEAL WAS FILED BEFORE THE HON'BLE ITAT ON 29/11/2019 AND AS SUCH THERE WAS A DELAY OF 35 DAYS IN FILING THE APPEAL. THE APPELLANT SUFFERED FROM MALARIA FEVER AND WAS UNDER TREATMENT AND COMPLETE BED REST DURING THE PERIOD BET WEEN 10/10/2019 AND 20/11/2019 (COPY OF THE MEDICAL CERTIFICATE ENCLOSED). AS SUCH, THE APPELLANT WAS NOT IN A POSITION TO ATTEND TO ANY OF HER NORMAL AFFAIRS DURING THE ABOVE PERIOD . AS SOON AS THE APPELLANT GOT WELL, SHE TOOK ALL THE NECESSARY STEPS FOR FILING THE APPEAL AND THE APPEAL COULD BE FILED ON 29/11/2019 . AS EXPLAINED ABOVE, THE DELAY OF 35 DAYS IN FILING THE APPEAL WAS DUE TO REASONS STATED ABOVE THAT WERE BEYOND THE CONTROL OF THE PETITIONER. THE DELAY IS NEITHER INTENTIONAL NOR DELIBERAT E. THEREFORE, IT IS RESPECTFULLY PRAYED THAT THE SAID DELAY OF 35 DAYS MAY KINDLY BE CONDONED AND APPROPRIATE ORDER MAY KINDLY BE PASSED IN THE INTERESTS OF SUBSTANTIAL JUSTICE. 3.1 THE ASSESSEE IN ORDER TO CORROBORATE HER CONTENTIONS ALSO FILED AN AFFIDAVIT AND MEDICAL CERTIFICATE . 4 ITA NO.651/VIZ/2019 (SMT. BANDLAMUDI LAKSHMI) 3.2 . LD.AR ALSO SUBMITTED THAT THE ASSESSEE HAS ALREADY INITIATED PROCESS FOR SETTLING THE DISPUTE UNDER THE DIRECT TAX VIVAD S E 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. 3.3 . LD. DR RAISED NO OBJECTION ON THE APPLICATION FOR CONDONATION OF DELAY, IF THE ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD S E VISHWAS SCHEME. 4. H EARD THE PARTIES AND CONSIDERED THE SUBMISSIONS AND DOCUMENTS SPECIFICALLY AFFIDAVIT AND MEDICAL CERTIFICATE OF THE ASSESSEE AVAILABLE ON RECORD. 4.1 . IT IS WELL SETTLED THAT BONAFIDE LIS CANNOT BE THROWN OUT ON THE BASIS OF LEGAL TECHNICALITIES AND IT IS UTMOST DUTY OF THE COURTS TO ADJUDICATE THE SAME. I T 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 DELAY HAS MADE OUT A SUFFICIENT CAUSE OR NOT. 4.2 . 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 SHE WAS SUFFERING FROM MALARIA FEVER AND WAS UNDER TREATMENT AND TREATING DOCTOR ADVISED HER TO TAKE COMPLETE BED 5 ITA NO.651/VIZ/2019 (SMT. BANDLAMUDI LAKSHMI) REST DURING THE PERIOD BETWEEN 10/10/2019 TO 20/11/2019 . AS SUCH SHE WAS NOT IN A POSITION TO ATTEND TO ANY OF HER NORMAL AFFAIRS DURING THE ABOVE PERIOD. HOWEVER IMMEDIATELY AFTER COMPLETING THE TREATMENT THE ASSESSEE ACTED DILIGENTLY AND FILED THE APPEAL WITH DELAY OF 3 4 DAYS WHICH OCCURRED UNINTENTIONALLY AND BONAFIDELY. THE EXPLANATION OF THE ASSESSEE IS SUPPORTED BY HER AFFIDAVIT AND MEDICAL CERTIFICATE AND THE DEPARTMENT DID NOT EXPRESSLY REFUTE THE STAND TAKEN BY THE ASSESSEE. THE DELAY IN FILING THE APPEAL IS OCCURRED DUE TO ASSESSEES ILLNESS , THEREFORE THERE SEEMS TO BE NO MALAFIDE INTENTION FOR CAUSING DELAY BUT THE SAME PRIMA FACIE APPEARS TO BE BONAFIDE AND REASONABLE , HENCE IN OUR CONSIDERED OPINION THE ASSESSEE HAS SHOWN THE SUFFICIENT CAUSE FOR DELAY AND THEREFORE THE DELAY OF 3 4 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 HAS ALREADY INITIATED THE PROCESS AND WILLING TO PAY THE RELEVANT TAXES. IT IS THE PUBLIC POLICY OF NATION THAT LITIGAT IONS MUST COME TO AN END. HENCE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES COLLECTIVELY, WE ARE INCLINED TO ADMIT THE APPEAL BY CONDONING THE DELAY OF 3 4 DAYS IN FILING OF THE APPEAL, CONSEQUENTLY THE DELAY STANDS CON DONED. 5 . APPEAL IS ADMITTED . 6 . THE REGISTRY IS DIRECTED TO PO ST THIS APPEAL FOR HEARING ON 23 /0 2 /2021 . 6 ITA NO.651/VIZ/2019 (SMT. BANDLAMUDI LAKSHMI) HEARING OF THE CASE WAS ALREADY PRONOUNCED IN THE OPEN C OURT IN THE PRESENCE OF PARTIES, HENCE NO NEED TO SEND FRESH NOTICE TO THE PARTIES. 7 . IN THE RESULT, APPLICATION FOR CONDONATION OF DELAY FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF JAN., 2021. S D / - S D / - (D.S. SUNDER SINGH) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH JANUARY, 2021. VR/ - COPY TO: 1. THE ASSESSEE SMT. BANDLAMUDI LAKSHMI, D.NO. 4 - 5 - 1B, LAKSHMI NILAYAM, NAVABHARATH NAGAR, GUNTUR. 2. THE REVENUE ITO, WARD - 2 ( 1 ), GUNTUR . 3. THE PR.CIT, GUNTUR . 4. THE CIT(A) - 1, GUNTUR . 5. THE D.R., VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM