Yashpal Mehta, Ludhiana V. ITO, W-6(5), Ludhiana

ITA 805/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5996 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 22-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside; Audi alteram partem
• Section: 143(3); 271B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 805/CHD/2019 ASSESSMENT YEAR : 2010-11 SHRI YASHPAL MEHTA 113/3, BASANT FARM HOUSE, BASANT AVENUE, EXTENSION-VIII, LUDHIANA-141010 THE ITO WARD 6(5) PAN NO: ADVPM3529L APPELLANT RESPONDENT !' ASSESSEE BY : NONE #!' REVENUE BY : SH. ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 08/09/2021 '()*! & DATE OF PRONOUNCEMENT : 08/09/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 15/02/2019 OF THE LD. CIT(A)-3, LUHDIANA. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BE HALF OF THE ASSESSEE WE THEREFORE PROCEEDED EXPARTE AND THE APPEAL IS DECIDED ON MERITS AFTER HEARING THE LD. DR. 3. THE REGISTRY HAS POINTED OUT THAT THE APPEAL OF THE ASSESSEE IS BARRED BY LIMITATION BY ONE DAY AND THE ASSESSEE FILED AN APPLI CATION DT. 11/10/2020 FOR CONDONATION OF DELAY STATING THEREIN AS UNDER: SUB :- APPEAL NO ITA NO 805/CHANDI/2019 A.Y 2010-11 REG :- YASHPAL MEHTA VS 170 WARD 6(5) LUDHIANA RESPECTED SIR WE ARE IN RESPONSE TO YOUR LETTER DT 22/09/2020 NO I.T.A NO 805/CHANDI/2019 RECEIVED ON 06/10/2020 REGARDING THE APPEAL FILED I N THE CASE OF YASHPAL MEHTA AGAINST THE ORDER ANNOUNCED U/S 27IB PASSED BY THE ITO W 6(5) BY IMPOSING 2 PENALTY FOR RS 1,00,000/- AND SUBSEQUENTLY ORDER OF THE ID CIT(A) WHEREBY UPHELD THE PENALTY ORDER OF THE ASSESSING OFFICER . AS THE APPEAL WAS FILED ON 22/05/2019 , WHICH GOT D ELAYED BY 1 DAY , IT IS REQUESTED TO KINDLY CONDONE THE DELAY IN FILING THE APPEAL FOR THE REASON THAT THE ORDER WHICH WAS RECEIVED BY THE APPELLANT WAS HANDE D OVER TO THE CLERK WORKING IN THE OFFICE OF HIS ACCOUNTANT AND HE KEPT THE SAM E IN HIS DRAWER AND HE FORGOT TO FILE APPEAL IN THE MENTIONED CASE. LATER ON WHEN APPELLANT ENQUIRED ABOUT THE COPY OF THE ACKNOWLEDGMENT, IT CAME TO THE LIGH T AT THAT TIME THAT THE APPEAL HAD NOT BEEN FILED . THE APPELLANT TOOK STEP TO FILE THE APPEAL FOR THE HON'BLE ITAT BUT STILL IT GOT LATE BY A DAY THOUGH THE FEE WAS DEPOSITED ON THE LAST DAY OF FILLING THE APPEAL BUT THE APPELLANT COUND NOT FILE THE APPEAL WITHIN THE TIME . IT IS THEREFORE REQUESTED TO KINDLY PARDON FOR THE SAME AND APPEAL TO YOUR HONOR TO KINDLY CONDONE THE DELAY . SIR AS EXPLAINED ABOVE THE DELAY IN FILING THE APPE AL WAS UNINTENTIONAL AND BY REASON BEYOND THE CONTROL OF THE APPLICANT . SIR FU RTHER STATED THAT MR SUSHIL SOOD WAS ALSO NOT KEEPING WELL FOR THE LAST FEW DAYS THE REFORE GOT DELAYED IN FILLING THE SUBMISSION . ACCORDINGLY , IT IS PRAYED THAT THE DELAY IN FILING THE APPEAL BE CONDONED AND APPEAL BE HEARD ON MERITS. 4. THE LD. SR. DR ALTHOUGH OPPOSED THE APPLICATION MOVE D BY THE ASSESSEE FOR CONDONATION OF DELAY HOWEVER COULD NOT CONTROVERT THE CONTE NTS OF THE SAID APPLICATION. WE THEREFORE CONSIDERING THE SMALLNESS IN DEL AY I.E; ONLY ONE DAY CONDONE THE DELAY BY TAKING A LIBERAL APPROACH AND CONSIDERING T HE PRINCIPLE OF NATURAL JUSTICE. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ADMITTED. 5. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE ORDER ANNOUNCED IS BAD AND AGAINST THE FAC TS AND LAW OF THE CASE. 2. THAT A REQUEST FOR ADJOURNMENT WAS MADE BEFORE THE LEARNED CIT(A) LUDHIANA WHICH WAS REJECTED BY THE HIM AND PASSED T HE ORDER WITHOUT CONSIDERING THE FACTS OF THE CASE. 3. THAT THE PENALTY CONFIRMED U/S 271B HAS WRONGLY BEE N IMPOSED AND LIABLE TO THE DELETED. 4. THAT THE APPELLANT CRAVES TO AMEND, ALTER, DELETE O R SUPPLEMENT ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEAR D AND DISPOSED OFF. 3 5. THAT THE ASSESSEE PRAYS THAT THE APPEAL BE ALLOWED IN FULL AND DEMAND RAISED BY THE A.O. BE DELETED. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 2 RE LATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A) BY REJECTING THE APPLI CATION MOVED FOR ADJOURNMENT. 6. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREI NAFTER REFERRED TO AS ACT) ON 28/12/2017 AT AN INCOME OF RS. 63,96,920/-. THE A.O. NO TICED THAT THE ASSESSEE WAS REQUIRED TO GET HIS ACCOUNTS AUDITED UNDER SECTION 44A B OF THE ACT AS HIS TURNOVER EXCEEDED THE PRESCRIBED LIMIT OF RS. 1 CRORES FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. HE THEREFORE INITIATED THE PENALTY PROC EEDINGS UNDER SECTION 271B OF THE ACT AND LEVIED THE PENALTY OF RS. 1,00,000/-. 7. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISPOSED OFF THE APPEAL EXPARTE AND SUSTAINED THE PENALTY LEVIED BY THE A.O. BY DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT DISCUSSING THE M ERIT OF THE CASE. 8. NOW THE ASSESSEE IS IN APPEAL. 9. THE LD. DR STRONGLY SUPPORTED THE IMPUGNED ORDER PAS SED BY THE LD. CIT(A). 10. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR A ND THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT THE LD. CIT(A) MENTIONED IN PARA 5 OF THE IMPUGNED ORDER THAT THE NOTICE FOR HEARING WAS ISSUED TO THE ASSESSEE O N 21/01/2019 FOR HEARING ON 28/01/2019 THEREAFTER ANOTHER NOTICE WAS ISSUED ON 04/02 /2019 FOR HEARING ON 14/02/2019 WHICH WERE NOT COMPLIED. IN THE PRESENT CASE NOTHING IS BROUGHT ON RECORD THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PARTEM . 11. WE THEREFORE KEEPING IN VIEW THE PRINCIPLES OF NATUR AL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 4 (ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2021 ) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 08/09/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR