Smt.Manjula Laxmanrao, Bidar V. Income-Tax Officer, Bidar

ITA 786/BANG/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5348 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 06-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS JT BENGALURU
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.786/BANG/2017 ASSESSMENT YEAR : 2002-03 SMT. MANJULA LAXMANRAO, HOUSE NO.8-9-270/63, GURUNAGAR COLONY, BIDAR 585 401. PAN: ACNPL 8275H VS. THE INCOME TAX OFFICER, WARD 1, BIDAR. APPELLANT RESPONDENT APPELLANT BY : SHRI G. VENKATESH, ADVOCATE RESPONDENT BY : SMT. SWAPNA DAS, JT.CIT(DR)(ITAT)-2, BENGALURU DATE OF HEARING : 17.05.2017 DATE OF PRONOUNCEMENT : 26.05.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE IMPUGNED ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS), GULBARGA, PASSED UNDER SECTION 250 OF TH E INCOME TAX ACT, 1961 IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PR OBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. ITA NO. 786/BANG/2017 PAGE 2 OF 6 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) IS NOT JUSTIFIED IN DISMISSING IN LIMINE THE APPEAL PREFERRED BY THE APPELLANT WITHOUT CONDONING THE SHORT DELAY IN FILI NG OF THE APPEAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD SH OWN SUFFICIENT CAUSE FOR DELAY IN FILING OF THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND HENCE THE SAID DELAY OUGHT TO HAVE BEEN CONDONED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) I S NOT JUSTIFIED IN PASSING AN ORDER DISMISSING THE AP PEAL ON QUESTION OF DELAY WHEN THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) HAS ALSO ADJUDICATED THE APPEAL ON THE ME RITS OF THE GROUNDS OF APPEAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) , ERRED IN SUSTAINING THE ADDITION OF RS. 6,00,000/- ON ACCOUNT OF LOAN TAKEN FROM ONE SRI. CHANDRASEKHAR PASARGI WHEN THE SAID ADDITION WAS ONLY MADE ON PROTECTIVE BASIS IN THE C ASE OF THE APPELLANT AND THE APPEAL IN THE CASE OF SRI. CHANDR ASEKHAR PASARGI ITSELF IS PENDING BEFORE THE APPELLATE AUTHORITIES ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) OUGHT TO HAVE APPRECIATED THAT THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, BANGALORE HAD IN THE CASE OF SRI. CHA NDRASEKHAR PASARGI FOR THE ASSESSMENT YEAR 2004-05 CATEGORICAL LY HELD THAT SRI. CHANDRASEKHAR PASARGI HAD GIVEN A LOAN TO THE APPELLANT IN THE FINANCIAL YEAR 2001-02 WHICH RESULTED IN REOPEN ING OF HIS CASE FOR THE ASSESSMENT YEAR 2002-03 AND SUCH AN ACTION COULD NOT HAVE HAD ANY IMPLICATION IN THE CASE OF THE APPELLA NT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN NOT APPRECIATING THAT THE ONCE THE SAID AMOUNT O F RS. 6,00,000/- IS SAID TO BE A LOAN GIVEN BY SRI. CHAND RASEKHAR PASARGI, THEREAFTER, IT COULD NOT BE AN INCOME OF T HE APPELLANT UNDER THE PROVISIONS OF THE ACT ON THE FACTS AND CI RCUMSTANCES OF THE CASE. ITA NO. 786/BANG/2017 PAGE 3 OF 6 8. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) OUGHT TO HAVE APPRECIATED THAT THE ASSESSING OFFICE R COULD NOT HAVE BROUGHT TO TAX THE AMOUNT OF RS. 6,00,000/- ON PROTECTIVE BASIS AS ADVANCE/DEPOSIT MADE WITH SRI. CHANDRASEKH AR PASARGI WHEN THE VERY PREMISE OF THE DEPARTMENT'S CASE IS T HE SRI. CHANDRASEKHAR PASARGI HAS LENT THE AMOUNT TO THE AP PELLANT. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), ERRED IN SUSTAINING THE ADDITION OF RS. 1,08,000/- SAID TO BE THE ACCRUED INTEREST ON THE LOAN OF RS. 6,00,000/- TAKE N FROM SRI. CHANDRASEKHAR PASARGI ON THE FACTS AND CIRCUMSTANCE S OF THE CASE. 10. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) FAILED TO APPRECIATE THAT ONCE THE APPELLANT IS SAI D TO HAVE TAKEN LOAN FROM SRI. CHANDRASEKHAR PASARGI, THERE IS NO Q UESTION OF THE APPELLANT EARNING ANY INTEREST INCOME ON A LOAN TAK EN BY HIM AND HENCE THE SAME OUGHT TO HAVE BEEN DELETED ON THE FA CTS AND CIRCUMSTANCES OF THE CASE. 11. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN SUSTAINING THE DISALLOWANCE OF RS. 75,500/- BEIN G THE INTEREST PAID BY THE APPELLANT ON HOUSING LOAN AVAILED ON TH E FACTS AND CIRCUMSTANCES OF THE CASE. 12. THE APPELLANT CRAVES FOR LEAVE OF THIS HON'BLE TRIBUNAL, TO ADD, ALTER, DELETE, AMEND OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME O F HEARING. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APP EAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 2. THERE IS A DELAY OF 30 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL IN RESPECT OF WHICH THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT. IT IS EXPLAINED THAT DELAY H AS CAUSED SINCE THE ASSESSEES HUSBAND WAS SERIOUSLY ILL AND THE ASSESS EE WAS PREOCCUPIED IN ITA NO. 786/BANG/2017 PAGE 4 OF 6 ATTENDING HIM. COPY OF MEDICAL CERTIFICATE IS FILE D ALONG WITH THE PETITION. RELIANCE IS PLACED ON THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI & ORS., 167 ITR 471 WITH THE SUBMISSION FOR CONDONATION OF DELAY. I AM SATISFIE D WITH THE EXPLANATION FURNISHED BY THE ASSESSEE FOR DELAY IN FILING THE A PPEAL BEFORE THE TRIBUNAL BY 30 DAYS AND THEREFORE I CONDONE THE DELAY. 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(APPEALS) HAS DISMISS ED THE APPEAL BEING BARRED BY LIMITATION, AFTER REJECTING THE REQUEST F OR CONDONATION OF DELAY IN FILING THE APPEAL. BESIDES DISMISSING THE APPEAL B EING BARRED BY LIMITATION, THE CIT(APPEALS) HAS ALSO DECIDED THE APPEAL ON MER ITS. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE ASSESSMENT WAS FRAMED IN THE HANDS OF ASSESSEE ON P ROTECTIVE BASIS, WHEREAS SUBSTANTIVE ADDITION WAS MADE IN THE HANDS OF SHRI CHANDRASEKHAR PASARGI. THE APPEAL COULD NOT BE FIL ED BEFORE THE CIT(APPEALS) ON THE ADVICE OF THE PROFESSIONAL. TH E DELAY WAS ONLY 170 DAYS WHICH WAS NOT CONDONED BY THE CIT(APPEALS). IT WAS FURTHER CONTENDED THAT THE APPEAL IN THE SUBSTANTIVE ADDITI ON IS STILL PENDING BEFORE THE CIT(APPEALS), THEREFORE, IN THE INTEREST OF JUSTICE, THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) BE CONDONED AND THE A PPEAL MAY BE RESTORED BACK TO THE CIT(A)S FILE WITH A DIRECTION TO READJUDICATE IT ALONG ITA NO. 786/BANG/2017 PAGE 5 OF 6 WITH THE APPEAL FILED ON THE SUBSTANTIVE ADDITION I N THE CASE OF SHRI CHANDRASEKHAR PASARGI. 5. THE LD. DR, HOWEVER, PLACED RELIANCE ON THE ORDE R OF CIT(APPEALS), BESIDES CONTENDING THAT THE APPEAL WAS NOT FILED IN TENTIONALLY IN TIME AND THAT IS WHY THE CIT(APPEALS) HAS REJECTED THE REQUE ST FOR CONDONING THE DELAY IN FILING THE APPEAL BEFORE HIM. 6. HAVING EXAMINED THE ORDERS OF LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, I FIND THAT UNDISPUTEDLY SUBSTANTIVE A DDITION WAS MADE IN THE HANDS OF SHRI CHANDRASEKHAR PASARGI AND THE ADDITIO N IN THE HANDS OF ASSESSEE WAS MADE ONLY ON PROTECTIVE BASIS. THOUGH ASSESSEE HAS FURNISHED BONAFIDE REASONS FOR NOT FILING THE APPEA L IN TIME, BUT IT WAS NOT PROPERLY CONSIDERED BY THE CIT(APPEALS) AND HE REJE CTED THE REQUEST FOR CONDONATION OF DELAY. THE CIT(APPEALS) HAVING DISM ISSED THE APPEAL BEING BARRED BY LIMITATION, HAS DECIDED THE APPEAL ON MERITS ALSO, THOUGH IT WAS NOT REQUIRED. BUT WHILE DEALING WITH THE ISSUE ON MERITS, HE HAS NOT EXAMINED THE ASPECT WITH REGARD TO SUCH ADDITION MA DE ON SUBSTANTIVE BASIS IN THE HANDS OF THE LENDER. THEREFORE, I AM OF THE VIEW THAT THIS ISSUE REQUIRES FRESH ADJUDICATION BY THE CIT(APPEALS) ALO NG WITH THE APPEAL OF THE LENDER IN WHOSE HANDS SUBSTANTIVE ADDITION WAS MADE . ACCORDINGLY, THE ORDER OF CIT(APPEALS) IS SET ASIDE AND MATTER IS RE STORED TO HIS FILE WITH A DIRECTION TO READJUDICATE THE APPEAL AFRESH ALONG W ITH THE APPEAL FILED BY SHRI CHANDRASEKHAR PASARGI. ITA NO. 786/BANG/2017 PAGE 6 OF 6 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF MAY, 2017. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 26 TH MAY, 2017. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.