Alajpur Madhukar, Hyderabad V. ITO, Hyderabad

ITA 818/HYD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3109 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: SHARAD CHANDRA TOSHNIWAL
• Keywords: Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH SMC B', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMEBR ITA NO.818/HYD/2010 ASSTT. YEAR 2005-06 ALAJPUR MADHUKAR, HYDERABAD (PAN NO. AGFPA 1359 P) V/S. ITO WARD 4(2) HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHARAD CHANDRA TOSHNIWAL RESPONDENT BY : SMT. NIVEDITA BISWAS, DR O R D E R PER SHRI G.C. GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-0 6 IS DIRECTED AGAINST THE ORDER OF THE CIT (A). THE GROUND S OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: '1. THAT THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)-V HYDERABAD, IN CONFIRMING THE ORDER PASS ED BY THE INCOME TAX OFFICER, WARD NO.4(2) HYDERABAD, FOR THE ASSESSMENT YEAR 2005-06 UNDER THE INCOME TAX ACT, I S CONTRARY TO LAW, AGAINST THE WEIGHT OF EVIDENCE AND PROBABILITIES OF THE CASE. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS)-V, HYDERABAD OUGHT TO HAVE ISSUED NOTICE TO THE PETITIONER/APPELLANT ABOUT THE DEFECT IN THE ABOVE SAID APPEAL BEFORE REJECTING THE ABOVE SAID APPEAL ON LI MITATION. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL ON THE GROUND THAT THERE IS A DELAY OF 320 DAYS IN FILING THE APPEAL AS SUCH THE APPEAL HA S BEEN ITA NO.818/HYD/2010 ALAJPUR MADHUKAR HYDERABAD. 2 DISMISSED ON THE GROUND THAT THERE IS NO APPLICATIO N FOR CONDONATION OF DELAY. 4. THE PETITION HEREBY ENCLOSES THE PETITION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E COMMISSIONER OF INCOME TAX (APPEALS)-V, HYDERABAD A ND REQUEST THE HON'BLE TRIBUNAL TO BRING THE SAME ON R ECORD AND DIRECT THE COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER THE SAME IN CONDONING THE DELAY AND HEAR T HE APPEAL ON MERITS. 5. THAT THE NON FILING OF THE CONDONATION OF DELAY PETITION IS NEITHER WILLFUL NOR DELIBERATE BUT BONA FIDE AND BEYOND THE KNOWLEDGE OF THE PETITIONER. THE PETITIO NER PRAYS THE HON'BLE TRIBUNAL TO DIRECT THE COMMISSION ER OF INCOME TAX (APPEALS) TO CONSIDER THE CONDONATION PE TITION AND HEAR THE APPEAL ON MERITS'. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E ASSESSEE COULD NOT FILE THE APPLICATION FOR CONDONATION OF DELAY BEFORE THE CIT (A) AND THE CIT (A) ALSO COULD NOT POINT OUT ANY DEFECT IN THE SAID APPEAL BEFORE REJECTING THE APPEAL ON THE GROUND S OF LIMITATION. HE SUBMITTED THAT THERE WAS A SUFFICIENT REASON FOR NOT P RESENTING THE APPEAL BEFORE THE CIT (A) IN TIME. HE SUBMITTED THAT THE ASSESSEE IS A SMALL TRADER AND SHOULD BE ALLOWED TO REPRESENT ITS CASE BEFORE THE CIT (A) ON MERITS IN THE INTEREST OF JUSTICE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE SUBMISSION OF THE LEARN ED COUNSEL FOR THE ASSESSEE. SHE SUBMITTED THAT IT WAS THE DUTY OF THE A SSESSEE TO FILE THE APPLICATION FOR CONDONATION OF DELAY BEFORE THE CIT (A) AND THERE WAS NO OBLIGATION ON THE PART OF THE CIT (A) T O PROVIDE ANY OPPORTUNITY TO THE ASSESSEE ON ITS OWN. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND TH AT THE APPEAL PREFERRED BY THE ASSESSEE BEFORE THE CIT (A) WAS DEFECTIVE SINCE THE ASSESSEE COULD NOT FILE ANY APPLICATION FOR CONDON ATION OF DELAY BEFORE HIM. THE CIT (A) SHOULD HAVE PROVIDED O PPORTUNITY TO THE ITA NO.818/HYD/2010 ALAJPUR MADHUKAR HYDERABAD. 3 ASSESSEE TO RECTIFY THE DEFECT IN THE APPEAL BEFORE HIM. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE WAS A SUF FICIENT CAUSE FOR NOT PRESENTING THE APPEAL BEFORE THE CIT (A) IN TIME. IN THE FACTS OF THE CASE WE HOLD THAT IT WOULD BE IN THE INTER EST OF JUSTICE TO PROVIDE THE ASSESSEE OPPORTUNITY TO EXPLAIN ITS CASE BEFOR E THE CIT (A) AND ACCORDINGLY THE ORDER OF THE CIT (A) IS SET ASIDE T O HIS FILE WITH DIRECTION TO ADMIT THE CONDONATION PETITION OF THE ASSE SSEE AND DECIDE THE SAME ON MERITS AND IF THE DELAY IN FILING THE AP PEAL BEFORE THE CIT (A) WAS FOR SUFFICIENT REASON, THE DELAY MAY BE CONDONED AND THE ISSUES BEFORE HIM MAY BE DECIDED ON MERITS BY THE CIT (A ) AFTER HEARING THE PARTIES. WE DIRECT ACCORDINGLY. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 09-07-2010. SD/- SD/- (CHANDRA POOJARI) (G.C. GUPTA) ACCOUNTANT MEMBER VICE-PRESIDENT PVV/SPS DATE: 09TH JULY, 2010 COPY FORWARDED TO: 1. SHRI ALAJPUR MADHUKAR, C/O SHRI TEJPRAKASH TOSHNIW AL, ADVOCATE, 4- 1-6/B/4 RAMKOTE, HYDERABAD 500095 2. THE ITO WARD NO.4(2), HYDERABAD 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-V, HYDERABAD . 4. THE COMMISSIONER OF INCOME-TAX-IV, HYDERABAD 5 THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD.