P.Mahesh Kumar, CHENNAI V. ITO, CHENNAI

ITA 746/CHNY/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51639 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-08-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 19-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A, CHENNAI B E F O R E DR. O.K.NARAYANAN, VICE PRESIDENT AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. ITA NOS.746 & 747(MDS)/2010 ASSESSMENT YEAR: 2001-02 SHRI P.MAHESH KUMAR, 7/4, PADMANABA STREET, T.NAGAR, CHENNAI-600 017. PAN AAOPM6219K VS. THE INCOME-TAX OFFICER, WARD I(3), CHENNAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.BANUSEKAR, C.A. RESPONDENT BY: SHRI SHAJI P JACOB, SR .DR. O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THESE TWO APPEALS ARE FILED BY THE ASSESSEE. THE APPEAL IN ITA NO.746(MDS)/2010 ARISES OUT OF THE ASSESSMEN T COMPLETED UNDER SECTION 144 READ WITH SECTION 147 O F THE - - ITA NOS.746 & 747 OF 2010 2 INCOME-TAX ACT, 1961. THE OTHER APPEAL IN ITA NO.747(MDS)/2010 ARISES OUT OF THE PENALTY ORDER PA SSED UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSMENT YEAR IS 2001-02. 2. THE CORRESPONDING FIRST APPEALS FILED BY THE ASSESSEE WERE DISMISSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-VI AT CHENNAI THROUGH HIS ORDERS DATED 29 -3-2010. THE APPEALS WERE DISMISSED FOR THE REASON THAT THE APPEALS WERE FILED BELATEDLY, WITH A DELAY OF 1419 DAYS IN RESPECT OF THE FIRST APPEAL AND 1220 DAYS IN RESPECT OF THE SECOND APPEAL, BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). E VEN THOUGH THE ASSESSEE HAS EXPLAINED THE REASONS WHICH PREVEN TED HIM FROM FILING THE APPEALS IN TIME, THOSE REASONS AND EXPLANATIONS WERE NOT ENOUGH TO CONVINCE THE COMMISSIONER OF INC OME- TAX(APPEALS) AND ACCORDINGLY THE APPEALS WERE DISMI SSED AS BARRED BY LIMITATION. THE GROUNDS AND MERITS OF TH E CASES WERE NOT EXAMINED BY THE COMMISSIONER OF INCOME-TAX(APPE ALS). 3. WE HEARD SHRI T.BANUSEKAR, THE LEARNED CHARTERED ACCOUNTANT APPEARING FOR THE ASSESSEE AND SHRI SHAJI P JACOB , THE LEARNED COMMISSIONER OF INCOME-TAX AP PEARING FOR THE REVENUE. - - ITA NOS.746 & 747 OF 2010 3 4. THE DELAY OF 1419/1220 DAYS, ABOUT 3 TO 4 YEARS , IS IN FACT A DELAY OF LONG PERIOD. WHEN THE DELAY IS TOO INORDINATE, THE ONUS ON THE ASSESSEE TO PROVE THE BONA FIDES OF THE REASONS WHICH CAUSED SUCH A LONG DELAY IN FILING THE APPEAL S, IS VERY ONEROUS AND DEMANDING. THE ASSESSEE JUST CANNOT SE EK CONDONATION OF THE DELAY ON THE GROUND OF CERTAIN G ENERAL EXPLANATIONS. THE REASONS MUST BE SPECIFIC AND THE Y MUST BE CONVINCING AND THEY SHOULD BRING OUT A CASE THAT TH E ASSESSEE WAS PREVENTED BY SUFFICIENT REASONS IN FILING THE A PPEALS WITHIN THE PERIOD ALLOWED BY THE STATUTE. EVEN IF A SPARK LE OF CARELESSNESS OR CALLOUSNESS OR IRRESPONSIBILITY IS FOUND IN THE CONDUCT OF THE ASSESSEE, IT IS ALMOST IMPOSSIBLE TO GET THE BENEFIT OF CONDONATION OF DELAY. 5. AT THE SAME TIME IT IS ALSO TO BE BORNE IN MIND THAT AN ASSESSEE DOES NOT BENEFIT HIMSELF BY FILING A BE LATED APPEAL. THEREFORE A CASE OF CONDONATION OF DELAY HAS TO BE EXAMINED IN A LIVELY MANNER GIVING JUSTICE TO THE BACKGROUND FA CTS AVOIDING TECHNICALITIES. 6. IN THE BACKGROUND OF THE ABOVE PRELUDE, WHEN TH E PRESENT CASE IS EXAMINED, WE FIND THAT THERE WERE C ERTAIN HARD - - ITA NOS.746 & 747 OF 2010 4 HAPPENINGS IN THE ASSESSEES FAMILY WHICH HAVE CONT RIBUTED TO THE DELAY IN FILING THE FIRST APPEALS, TO A GREAT E XTENT. IN AND AROUND THE TIME OF FILING THE FIRST APPEALS, THE AS SESSEES FATHER PASSED AWAY, LEAVING HIM IN LURCH AND BEREAVEMENT. HE HAD TO ASSUME THE FAMILY RESPONSIBILITIES QUITE UNEXPECTED LY. ASSUMING A WIDER RESPONSIBILITY OF THE ENTIRE FAMILY HAD A T URBULENT EFFECT IN HIS PERSONAL ACTIVITIES AND COMMITMENTS AS WELL. F AMILY DISPUTES WERE CROPPING UP OFF AND ON WHICH DEMANDED A MAJOR PART OF THE ATTENTION OF THE ASSESSEE. AS A CUMULATIVE EFFECT OF HIS FATHERS DEATH AND THE CONSEQUENT FAMILY DISPUTES AND THE OT HER BOTHERATIONS CRIPPLED THE ACTIVITIES OF THE ASSESSE E TO A GREAT EXTENT THAT HE FAILED TO PURSUE MANY OF HIS PERSONA L MATTERS IN A PROPER MANNER. 7. WHEN WE VIEW THE CASE OF THE ASSESSEE IN THE ABOVE BACKGROUND FACTS, IT IS NOT POSSIBLE TO ALLEG E LACK OF DILIGENCE ON THE PART OF THE ASSESSEE IN PURSUING L EGAL REMEDIES AVAILABLE BEFORE HIM. IT IS NOT POSSIBLE TO HOLD T HAT HIS CONDUCT WAS CALLOUS AND CONTUMACIOUS. RATHER, IT IS SEEN T HAT THE ASSESSEE WAS CRIPPLED BY THE DEEDS OF DESTINY. - - ITA NOS.746 & 747 OF 2010 5 8. IN SUCH CIRCUMSTANCES JUSTICE AND FAIR PLAY DEM AND THAT A PETITION FILED BY AN ASSESSEE SEEKING CONDON ATION OF DELAY COULD NOT BE REJECTED ON THE GROUND OF TECHNICALITI ES INCLUDING THE LENGTH OF THE DELAY. ONCE THE DELAY IS SEEMED TO H AVE BEEN OCCURRED FOR VALID REASONS, THE LENGTH OF DELAY AS SUCH, CANNOT UNDO THE WEIGHT OF THOSE REASONS. 9. IN THE PRESENT CASE WE FIND THAT THE ASSESSEE W AS PREVENTED BY SUFFICIENT REASONS IN FILING FIRST APP EALS BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS) IN TIME. THE D ELAY WAS NOT DELIBERATE. IT WAS NOT THE CASE THAT THE ASSES SEE WAS NOT RESPONSIBLE. IN THESE CIRCUMSTANCES, JUSTICE DEMAN DS THE CONDONATION OF DELAY IN FILING THE CORRESPONDING AP PEALS BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS). 10. ACCORDINGLY WE CONDONE THE DELAY THAT CAUSED I N FILING THE APPEALS BEFORE THE COMMISSIONER OF INCOM E- TAX(APPEALS) AND DIRECT THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) TO ADMIT THESE TWO APPEALS ON HIS ROLL S AND TO DISPOSE OF THE APPEALS AFRESH ON THE MERITS OF THE CASE AFTER GIVING AN EFFECTIVE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. - - ITA NOS.746 & 747 OF 2010 6 11. THESE TWO CASES ARE REMANDED BACK TO THE COMMISSIONER OF INCOME-TAX(APPEALS). 12. IN RESULT THESE TWO APPEALS ARE TREATED AS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON TUESDAY, THE 2 ND DAY OF AUGUST, 2011 AT CHENNAI. SD/- SD/- (GEORGE MATHAN) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 2 ND AUGUST, 2011. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.