Shri Punabhai K.Ribadia, Surat V. The Dy.CIT.,Circle-9, Surat

ITA 807/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0001 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P PATEL
• Assessee Lawyers: M K PATEL
• Keywords: Reasonable cause; Ignorance of law
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ ITA NO. 807/AHD/2013 / ASSESSMENT YEAR : 2008-09 PUNABHAI K. RIBADIA, 11, KOHINOOR SOCIETY, LAMBE HANUMAN ROAD, SURAT PAN : ABAPR 5135 Q VS DCIT, CIRCLE-9, SURAT ./ ITA NO. 808/AHD/2013 / ASSESSMENT YEAR : 2008-09 BHUPENDRA KARAMSHIBHAI RIBADIA, B-27, TRIKAM NAGAR LAMBE HANUMAN ROAD, SURAT PAN : AALPR 2496 N VS DCIT, CIRCLE-9, SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI N.P. PATEL, SR. DR / DATE OF HEARING : 28/11/2016 / DATE OF PRONOUNCEMENT: 29/11/2016 / O R D E R THESE APPEALS BY SEPARATE ASSESSEES ARE DIRECTED AG AINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-V, SURAT OF EVEN DATED 24.01.2013 FOR ASSESSMENT YEAR 2008-0 9. SINCE THE ISSUES ARE COMMON, THESE APPEALS WERE HEARD TOGETHER AND ARE B EING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN BOTH THE CASES, EARLIER THE TRIBUNAL HAD REMI TTED THE MATTER BACK TO THE FILE OF THE CIT(A) BY HOLDING THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY PASSING AN EX-PARTE ORDER BY HOLDING TH AT THE APPEAL IS NOT MAINTAINABLE AS THE SAME IS BARRED BY LIMITATION AND NOT MAINTAI NABLE AS PER THE PROVISIONS OF THE ACT; THAT THE LD. CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS AND THIS ACTION OF THE SMC-ITA NOS. 807 & 808/AHD/2013 PUNABHAI K. RIBADIA VS. 2013 AY : 2008-09 2 LD. CIT(A) DOES NOT APPEAR TO BE REASONABLE . LATER ON, ON REVENUES MISCELLANEOUS APPLICATIONS, THESE ORDERS OF THE TRI BUNAL WERE RECALLED BY THE ITAT BY OBSERVING AS UNDER:- 3. ON DUE CONSIDERATIONS OF THE ABOVE FACTS, WE A RE OF THE VIEW THAT APPARENT ERROR HAS CREPT IN THE ORDER OF THE TRIBUN AL WHILE ADJUDICATING THESE APPEALS. THE TRIBUNAL DID NOT CONSIDER THE ISSUE OF LIMITATION WHILE REMITTING THE APPEAL TO THE LD. CIT(A). THEREFORE, WE RECALL THE ORDER DATED 23.07.2013 IN BOTH THE APPEALS AND RESTORE THEM TO THEIR ORIGI NAL NUMBER. 3. ACCORDINGLY, THESE APPEALS WERE HEARD TODAY. TH E GROUNDS RAISED IN THESE APPEALS READ AS UNDER:- ITA NO.807/AHD/2013 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN I SSUING NOTICE U/S 148 OF THE ACT AND RE-OPENING THE ASSESSMENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING ADDITION OF RS.15,93,675/- ON ACCOUNT OF ALLEGED SHORT TERM CAP ITAL GAIN. ITA NO.808/AHD/2013 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN L EVYING PENALTY OF RS.10,000/- U/S 271 (1)(B) OF THE INCOME-TAX ACT, 1961. 4. I HAVE HEARD BOTH THE COUNSELS AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IN BOTH THE CASES, THERE WAS A DELAY IN FI LING THE APPEAL BEFORE THE LD. CIT(A) FOR AROUND 5 MONTHS. IN THE APPLICATION FOR CONDONATION OF DELAY, THE ASSESSEE HAS SUBMITTED THAT THE DELAY TOOK PLAC E AS HE WAS OUT OF STATION TO HIS NATIVE PLACE AND WHEN THE ORDER WAS RECEIVED , HE WAS UNAWARE OF THE PROVISIONS OF LAW AND RIGHT FOR APPEAL. THE LD. CI T(A) HELD THAT THE CONDUCT SMC-ITA NOS. 807 & 808/AHD/2013 PUNABHAI K. RIBADIA VS. 2013 AY : 2008-09 3 OF THE ASSESSEE HAS TO BE TAKEN INTO CONSIDERATION IN THE OVERALL SCENARIO THAT THE ASSESSEE WAS A HABITUAL NON-COMPLIANT PERSON AN D IT IS SETTLED LAW THAT IGNORANCE OF LAW IS NO EXCUSE. ACCORDINGLY, LD. CI T(A) DID NOT CONDONE THE DELAY. UPON CAREFUL CONSIDERATION, I FIND THAT IN VIEW OF THE QUANTUM OF DELAY, THE REASONABLE CAUSE ATTRIBUTED CANNOT BE AT TRIBUTED TO BE SO WILD AS TO BE LACKING COGENCY. LD. CIT(A) IN HIS APPELLATE ORDER HAS NOT MADE IT CLEAR AS TO WHAT SORT OF EVIDENCE HE HAD ASKED, WHI CH THE ASSESSEE FAILED TO PRODUCE. IN THESE CIRCUMSTANCES, IN MY CONSIDERED O PINION, INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A). ACCORDINGLY, THESE ISSUES ARE REMITTED BACK TO THE RESPECTIVE FILES OF THE LD. CIT(A) TO CONSIDER AND DECIDE THE ISSUES RAISED BY THE ASSESSEE(S) AFTER GIVING THE ASSESSEE(S) AN OPPORTUNITY OF BEING HEAR D. 5. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE(S) A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SHAMIM YAHYA (ACCOUNTANT MEMBER) AHMEDABAD; DATED 29/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD