Jayesh C. Parekh, Dhule V. Income-tax Officer,

ITA 749/PUN/2014

• Counselvise Citation: 74924514 RSA 2014
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV HARIT
• Assessee Lawyers: DR PRAYAG JHA
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.749/PN/2014 (A.Y: 2005-06) JAYESH C PAREKH NEAR BOHARA MASJID AT & PO SHIRPUR, DIST DHULE. PAN: ABHPP1667L APPELLANT VS. ITO (CIB), NASHIK RESPONDENT APPELLANT BY : SHRI DR. PR AYAG JHA AND SHRI PRATEEK JHA RESPONDENT BY : SHRI RAJ EEV HARIT DATE OF HEARING: 21.05.2014 DATE OF ORDER : 27.05.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-I, [IN SHORT CIT(A)] NASHIK, DATED 08.12.2011 FOR A.Y. 2005-06 ON THE FO LLOWING GROUNDS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW- 1. THE LD CIT(A) WAS NOT JUSTIFIED IN PASSING THE APPE LLATE ORDER AND DISMISSING THE APPEAL, WITHOUT GIVING THE APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD. 2. THE LD CIT(A) ERRED IN HOLDING THAT THE APPELLANT W AS NOT INTERESTED IN PROSECUTING THE APPEAL. 3. THE LD CIT(A) WAS NOT JUSTIFIED IN PASSING THE APPE LLATE ORDER, WITHOUT TAKING INTO CONSIDERATION THE EVIDEN CES PRODUCED BY THE APPELLANT. 2 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL OR TO ADDITION NEW GROUNDS OF APPEAL DURING THE COURSE OF APPEAL PROCEEDINGS. 2. AT THE OUTSET OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE HAS POINTED OUT THAT THERE IS A DELA Y OF 787 DAYS IN FILING THE APPEAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY OF 787 DAYS, W HICH IS CLAIMED TO BE ATTRIBUTABLE TO THE NEGLIGENCE OR LAP SE ON THE PART OF LEGAL CONSULTANT OF THE ASSESSEE. THE LEARNED A UTHORIZED REPRESENTATIVE HAS ALSO POINTED OUT THAT THERE IS A N AFFIDAVIT ON BEHALF OF ASSESSEE, INTER ALIA, STATED THAT THE COP Y OF ORDER WAS FORWARDED TO HIS CONSULTANT FOR FURTHER ACTION, WHO INADVERTENTLY COULD NOT FILE THE APPEAL WITHIN PERIOD OF LIMITATI ON. ACCORDING TO ASSESSEE, AFTER A LAPSE OF CONSIDERABLE TIME, THE S AID LEGAL CONSULTANT / ADVISER INFORMED HIM THAT THE COPY OF ORIGINAL DOCUMENT WAS MISPLACED AND THE SAME HAD BEEN FOUND IN SOME OTHER CLIENTS FILE. SUBSEQUENTLY, THE ASSESSEE HA S ENGAGED ANOTHER LEGAL ADVISER, WHO WAS GIVEN NECESSARY INST RUCTIONS TO FILE THE APPEAL AGAINST THE APPELLATE ORDER. IN AD DITION TO IT, THE ASSESSEE HAS SUBMITTED THAT HIS SON HAS DIAGNIZED W ITH CANCER AND UNDERGOING THE TREATMENT SINCE MAY, 2009. SO, HE COULD NOT FOCUS ON THE ISSUE OF FILING APPEAL IN TIME AND HE COULD NOT EVEN FOLLOW THE SAME WITH LEGAL CONSULTANT. FOR THE ABO VE REASONS, THE APPEAL COULD NOT BE FILED IN TIME. IN THIS BACKGRO UND, THE ASSESSEE REQUESTED TO CONDONE THE DELAY. ACCORDING TO US, DELAY IN FILING THE APPEAL IS ATTRIBUTABLE TO THE LAPSE O N THE PART OF ASSESSEES LEGAL CONSULTANT COUPLED WITH CANCER PRO BLEM OF HIS SON. TAKING ALL THE FACTS AND CIRCUMSTANCES INTO C ONSIDERATION, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE. SO, IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY. 3 3. ON THE MERIT OF THE ISSUE, WE FIND THAT THE CIT( A) HAS DISPOSED OFF THE APPEAL BY WAY OF EXPARTE ORDER BY OBSERVING AS UNDER: 4. FROM THE ABOVE IT IS CLEAR THAT THE APPELLANT I S NOT INTERESTED IN PROSECUTING THE APPEAL. IT HAS BEEN H ELD BY THE HON'BLE SUPREME COURT IN THE CASE OF B.N. BHATTACHA RGEE & ANR., 118 ITR 461 THAT APPEAL DOES NOT MEAN ONLY FI LING OF MEMO OF APPEAL BUT ALSO PURSUING IT EFFECTIVELY. IN CASES WHERE THE ASSESSEE DOES NOT WANT TO PURSUE THE APPE AL, COURT/TRIBUNAL/APPELLATE AUTHORITY HAVE INHERENT PO WER TO DISMISS THE APPEAL FOR NON-PROSECUTION, AS HELD BY HON'BLE HIGH COURT OF MUMBAI IN THE CASE OF M/S CHEMIPOL VS . UNION OF INDIA IN EXCISE APPEAL NO.62 OF 2009. IN V IEW OF THE RATIO LAID DOWN BY THE HON'BLE COURT AND ALSO FOLLO WING THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPAN (I NDIA) LTD., 38 ITD 320 AND MADHYA PRADESH HIGH COURT IN LATE TUKOJIRAO HOLKAR 223 ITR 480 (MP), I PROCEED TO DIS MISS THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION. THI S VIEW IS SUPPORTED BY A RECENT DECISION DATED 03/10/2011 OF THE HONBLE ITAT IN ITA NO.212/PN/2010. IN THIS CASE IT IS ESTABLISHED THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THIS APPEAL. 4. ACCORDING TO US, THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL EXPARTE WITHOUT GOING INTO THE MERIT OF THE ISSUE AT HAND, WHICH IS NOT JUSTIFIED. SO, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIM WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AF TER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE AS SESSEE IS ALSO DIRECTED TO COOPERATE IN THE PROCEEDINGS. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 27 TH OF MAY, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH MAY, 2014 GCVSR 4 COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-I, NASHIK 4) THE CIT-I, NASHIK 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE