Shri Jamnadas B. Kansagara, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-3(2), RAJKOT-GUJARAT

ITA 69/RJT/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1326 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 02-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Assessee Lawyers: DM RINDANI
• Keywords: Period of limitation; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BEN CH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI S. S. GOD ARA, J.M.) ( , , ) ITA NO. 69/RJT/2015 (ASSESSMENT YEAR: 2011-12) JAMNADAS B. KANSAGARA TALUKA SHALA, PATANVAV 360430, DHORAJI, DIST: RAJKOT VS. THE INCOME TAX OFFICER, WARD 3(2), RAJKOT PAN: ACYPK4220C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D. M. RINDANI, A.R. RESPONDENT BY : SHRI C. S. ANJARIA, SR. D.R. DATE OF HEARING : 18-03-20 16 DATE OF PRONOUNCEMENT : 06-04-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-III, RAJKOT, DATED 22.07.2014 FOR THE ASSESSMENT YEAR 2011-12 . 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS AN INDIVIDUAL AND SERVING IN TAL UKA SHALA AT VILLAGE PATANVAV TAL DHORAJI AS HEAD MASTER AND DERIVING IN COME FROM THE SALARY. THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2011-1 2 ON 29.04.2011 DECLARING TOTAL ITA NO 69/RJT/2015 A.Y. 2011-12 . (JAMNADAS B. KANSAGARA VS. ITO) 2 INCOME AT RS.2,82,276/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER, THE ASSESSMENT WAS FRAMED U/S.143(3) OF THE ACT VIDE OR DER DATED 24.03.2014 AND THE TOTAL INCOME WAS DETERMINED AT RS.16,64,700/-. AGG RIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER BEFO RE THE LD. CIT(A) WHO VIDE ORDER DATED 22.07.2014 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFO RE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )- III, RAJKOT ERRED IN NOT ADMITTING APPEAL FOR ADJUDICATION BY HOLDING THAT T HERE WAS NO REASONABLE CAUSE ON PART OF THE APPELLANT FOR DELAY IN FILING APPEAL . 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - III, RAJKOT FAILED TO APPRECIATE THAT THE DELAY IN FILING APPEAL WAS OF O NLY 9 DAYS WHICH WAS NOT SUBSTANTIAL. 4. REGISTRY HAS INFORMED THAT THERE IS A DELAY IN F ILING OF APPEAL BY THE ASSESSEE OF 140 DAYS. BEFORE US, ASSESSEE HAS FILED SWORN A FFIDAVIT OF JAMNADAS KANSAGARA, THE ASSESSEE, WHEREIN THE REASONS FOR DE LAY IN FILING OF APPEAL ARE STATED AND ASSESSEE HAS SOUGHT CONDONATION OF DELAY. BEFO RE US, LD. A.R. TOOK US THROUGH THE REASON FOR DELAY AS STATED IN THE AFFIDAVIT AND SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE DELAY BE CONDONED AND THE APPEAL BE AD MITTED. LD. D.R., ON THE OTHER HAND, OBJECTED TO THE CONDONATION PETITION FILED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THERE IS A DELAY IN FILI NG OF THE PRESENT APPEAL. THE REASON FOR DELAY HAS BEEN EXPLAINED IN THE AFFIDAVI T WHICH IS PLACED ON RECORD. WE FIND THAT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS. REPORTED IN (1987) AIR 1353, THE HONBLE SUPREME COURT HAS N OTED THAT REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BE ING THE THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. IT F URTHER HELD THAT THERE IS NO ITA NO 69/RJT/2015 A.Y. 2011-12 . (JAMNADAS B. KANSAGARA VS. ITO) 3 PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY O R ON ACCOUNT OF MALA FIDES AND A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY BUT ON THE CONTRARY HE RUNS A SERIOUS RISK. IT FURTHER HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON DELIBERATE DELAY. 5.2 CONSIDERING THE AFORESAID DECISION OF HONBLE A PEX COURT AND CONSIDERING THE ENTIRELY OF FACTS, AND IN THE ABSENCE OF ANY MA TERIAL ON RECORD TO DEMONSTRATE MALAFIDE INTENTION ON THE PART OF ASSESSEE IN NOT F ILING THE APPEAL WITHIN THE PERIOD OF LIMITATION AS STIPULATED IN THE ACT, WE ARE OF T HE VIEW THAT IN THE PRESENT CASE, THE DELAY IN FILING OF APPEAL BY THE ASSESSEE BEFORE IT AT NEEDS TO BE CONDONED. WE THEREFORE CONDONE THE DELAY AND ADMIT THE APPEAL FO R HEARING. 6. ON THE MERITS OF THE ISSUE, BEFORE US, AT THE OU TSET, LD. A.R. SUBMITTED THAT ONE OF THE GRIEVANCE OF THE ASSESSEE IS THAT LD. CI T(A) HAS PASSED AN EX PARTE ORDER AS ASSESSEE COULD NOT APPEAR BEFORE HIM AND THAT LD . CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS. THE REASON FOR NON-APPEARANCE BE FORE LD. CIT(A) AS STATED BY LD. A.R. WAS ON ACCOUNT OF SHIFTING TO RAJKOT AND ILL H EALTH . LD. A.R., THEREFORE, SUBMITTED THAT IN THE INTEREST OF JUSTICE, ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT(A) AND FURTHER A SSURED THAT ASSESSEE WILL APPEAR BEFORE LD. CIT(A). LD. D.R., ON THE OTHER HAND, SU BMITTED THAT DESPITE VARIOUS OPPORTUNITIES GRANTED TO ASSESSEE, ASSESSEE DID NO T APPEAR BEFORE LD. CIT(A) AND THEREFORE LD. CIT(A) HAD NO OTHER OPTION BUT TO DIS MISS THE APPEAL OF THE ASSESSEE. HE, THUS, SUPPORTED THE ORDER OF LD. CIT(A) . 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, WE FIND THAT LD. CIT(A) HAS PASSED AN EX-PARTE ORDE R AND ITA NO 69/RJT/2015 A.Y. 2011-12 . (JAMNADAS B. KANSAGARA VS. ITO) 4 DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE. IT IS A SETTLED LAW THAT LD. CIT(A) HAS NO JURISDICTION T O DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX PARTE ORDER THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUND S OF APPEAL OF THE ASSESSEE ON MERITS THEREOF. CONSIDERING THE AFORESAID FACTS, W E ARE OF THE VIEW THAT IN THE LARGER INTEREST OF JUSTICE, THE ASSESSEE BE GIVEN O NE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT(A). WE THEREFORE REMIT ALL THE GROUNDS RAISED IN THE PRESENT APPEAL BACK TO THE FILE OF LD. CIT(A) FOR HIM TO DE CIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CI T(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE VARIOUS GROUNDS RAISED BY ASSESSEE TO LD. CIT(A), W E ARE NOT ADJUDICATING ON MERITS THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. 8. THUS, THE APPEAL OF ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 06/04/2016 SD/- SD/- (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED. 06/04/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT