DINESH RATHI, Jaipur V. ACIT, Ajmer

ITA 793/JPR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5568 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Corroborative evidences

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NOS. 793/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 . SHRI DINESH RATHI RIICO, MADANGANJ-KISHANGARH.(AJMER) CUKE VS. THE ACIT, CIRCLE-1, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AGCPR 2649 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY S BY : SHRI P.C. PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.12.2015. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 01/01/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT (A), AJMER DATED 07.08.2013 FOR THE A.Y. 2009-10. THE GROUNDS OF APPEAL STATES AS UNDER :- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED ON FACTS AND IN LAW IN DISMISSING THE APPEAL FILED BY THE ASSESS EE BY NOT CONDONING THE DELAY OF 6 MONTHS AND 2 DAYS IN FILING THE APPE AL BY NOT ACCEPTING THE REASON FOR SUCH DELAY. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED ON FACTS AND IN LAW IN NOT DECIDING THE APPEAL OF THE ASSESSEE O N MERIT. 2 ITA NO. 793/JP/2013 A.Y. 2009-10. SHRI DINESH RATHI VS. ACIT, AJMER. 2. FROM THE MATERIAL AVAILABLE ON RECORD, WE FIND T HAT THE LD. CIT (A) HAS NOT ACCEPTED THE EXPLANATION GIVEN BY THE ASSESSEE FOR CONDONING THE DELAY OF 6 MONTHS 2 DAYS FOR FILING THE APPEAL ON THE GROUND THAT THE A SSESSEE HAS NOT FILED ANY SUPPORTING EVIDENCE TO SHOW THAT THE AO HAS AGREED TO DROP THE PENALTY PROCEEDINGS IN CASE HE AGREES NOT TO FIE ANY APPEAL AGAINST THE ORDER OF T HE AO. THUS THE LD. CIT (A) HAS REJECTED THE ASSESSEES APPEAL. 3. THE LD. A/R FOR THE ASSESSEE HAS TAKEN US TO THE FORM NO. 35 WHEREIN IN STATEMENT OF FACTS IT IS MENTIONED AS UNDER :- ASSESSEE FILED THE RETURN ON 29.09.2009 DECLARING INCOME OF RS. 16,40,660/- INCLUDING THE AMOUNT SURRENDERED IN COU RSE OF SURVEY DATED 25.09.2008. ASSESSMENT WAS COMPLETED ON 18.07.2011 BY MAKING AN ADDITION OF RS. 2,13,079/- TO TRADING RESULT AND DI SALLOWANCE OUT OF THE EXPENSES AND OTHER ADDITION OF RS. 98,313/-. IN CO URSE OF ASSESSMENT PROCEEDING, ASSESSEES AR AGREED FOR THE ADDITION O F RS. 2,13,079/- ON THE CONDITION THAT NO PENALTY BE LEVIED ON SUCH AMOUNT. THE AO ALSO AGREED TO IT ON THE CONDITION THAT ASSESSEE WILL NOT FILE THE APPEAL AND THAN PENALTY PROCEEDING INITIATED BY HIM WILL BE DROPPED . THEREAFTER IT WAS SUBMITTED THAT THE AO HAS IMPOSED THE PENALTY ON THE SAID ADDITION VIDE ORDER DATED 27.12.2011, WHICH WAS RECEIVED BY THE ASSESSEE ON 27.01.2012. THEREFORE, IT WAS CONTENDED THAT THE LD. CIT (A) SH OULD HAVE ACCEPTED THE PRAYER FOR CONDONING THE DELAY IN FILING THE APPEAL AND SHOULD HAVE DECIDED THE MATTER ON MERIT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, MORE PARTICULARLY THE STATEMENT OF FACTS ME NTIONED IN FORM NO. 35. THE COURTS ARE LIBERAL IN CONDONING THE DELAY CAUSED IN FILING THE APPEAL, AS THE STATE IS NOT A 3 ITA NO. 793/JP/2013 A.Y. 2009-10. SHRI DINESH RATHI VS. ACIT, AJMER. PRIVATE PARTY, AND IT IS THE INDIVIDUAL WHO IS PURS UING THE LITIGATION. HAD THERE BEEN ANY TWO INDIVIDUALS, THEN SOME VESTED INTEREST OR CRYST ALLIZED RIGHT WILL ACCRUE IN FAVOUR OF THE OTHER PARTY ON ACCOUNT OF NON FILING OF THE APP EAL IN TIME. HOWEVER, IN CASE OF THE GOVERNMENT, BEING SECOND PARTY, NO SUCH RIGHT WILL ACCRUE. IN ANY CASE, IN THE PRESENT CASE THE ASSESSEE HIMSELF HAS MADE A STATEMENT ON A FFIDAVIT WHILE FILING THE APPEAL BEFORE THE LD. CIT (A), THE LD. CIT (A) SHOULD HAVE ACCEPTED THE VERSION OF THE ASSESSEE AND SHOULD HAVE DECIDED THE APPEAL ON MERIT. THERE FORE, WE SET ASIDE THE ORDER PASSED BY LD. CIT (A) WITH A DIRECTION TO DECIDE TH E APPEAL ON MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/01/2016. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/01/2016 DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DINESH RATHI, MADANGANJ-KISHANG RH. 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-1, AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 793/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 4 ITA NO. 793/JP/2013 A.Y. 2009-10. SHRI DINESH RATHI VS. ACIT, AJMER.