SHRI NITESH AGARWAL, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5, JAIPUR

ITA 825/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0538 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROLEE AGARWAL DHK
• Assessee Lawyers: S L PODDAR; ISHA KANOONGO
• Keywords: Period of limitation; Reasonable cause; Condonation of delay

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 FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 825/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 SHRI NITESH AGARWAL, PROP.- M/S S.S. DIAM, 38, UNIYARA GARDEN, NEHRU PARK, TRIMURTI CIRCLE, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANWPA 5674 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR & MS. ISHA KANOONGO (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROLEE AGARWAL (CIT-DR) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05/09/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/09/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13/02/2017 OF LD. CIT(A), AJMER FOR THE A.Y. 2013-1 4. 2. THERE IS A DELAY OF 387 DAYS IN FILING THE PRESEN T APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION O F DELAY, WHICH IS SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE. SINCE, THERE IS AN INORDINATE DELAY IN FILING THE APPEAL AND THE REVENUE HAS RAIS ED SERIOUS OBJECTION ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 2 AGAINST THE MAINTAINABILITY OF THE PRESENT APPEAL, WE HAVE HEARD ON THE CONDONATION OF DELAY APPLICATION ONLY AT THIS STAGE . 3. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS AN INDIVIDUAL AND RECEIVED IMPUGNED ORDER OF LD. CIT(A) DATED 13/2/2017 ON 18/3/2017, HOWEVER, THE ASSESSEE WAS FACING VERY TURB ULENT TIME IN THE FAMILY AS WELL AS WITH HIS EARLIER C.A., WHO HAD MISCH IEVOUSLY PREPARED THE ACCOUNTS OF THE ASSESSEE AND ALSO FILED THE RETURN OF INCOME IN HIS OWN SIGNATURES WITHOUT BRINGING THE FACT IN THE NOTICE O F THE ASSESSEE. HE HAS POINTED OUT THAT THE ASSESSEE IS UNDERGOING WITH VAR IOUS PROBLEMS, HE HAS MISPLACED THE IMPUGNED ORDER AND FORGOT TO GIVE THE PAPERS TO HIS COUNSEL FOR FILING THE APPEAL. THE LD AR HAS SUBMITTED THAT THE ASSESSEE WAS FIGHTING WITH HIS C.A. REGARDING FALSE ACCOUNTS PREP ARED BY HIM AND FILING THE RETURN OF INCOME BASED ON SUCH FALSE ACCOUNTS. THE LD AR HAS FURTHER SUBMITTED THAT THE SITUATION WENT FROM BAD TO WORSE. THE ASSESSEE HAD FILED COMPLAINT AGAINST THE C.A. AND FURTHER A CASE IN THE COURT OF MAHANAGAR MAGISTRATE AGAINST THE MISDEEDS OF THE C. A.. THUS, THE LD AR HAS SUBMITTED THAT THE ASSESSEE WAS FIGHTING FOR GET TING THE RELEVANT PAPERS FROM THE C.A. AND IN THIS PROCESS, THE ASSES SEE COULD NOT TAKE STEPS TO FILE THE APPEAL WITHIN THE STIPULATED PERIOD OF L IMITATION. THE LD AR HAS REFERRED TO THE COMPLAINTS FILED BY THE ASSESSEE AG AINST THE C.A. AS WELL AS THE COURT CASE PENDING. HE HAS FURTHER CONTENDED TH AT DUE TO MISDEEDS OF ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 3 THE C.A., THE ASSESSEE HAS SUFFERED HEAVY LOSSES ON ACCOUNT OF NON- RECOVERY OF DUES FROM THE DEBTORS NAMELY SHREE GMS INC, NEW YORK. SINCE THE GOODS WERE SUPPLIED TO THE CLIENT BASED AT U.S.A ., THEREFORE, THE ASSESSEE HAD TO INITIATE THE PROCEEDINGS THROUGH TH E INDIAN EMBASSY. THE LD AR HAS REFERRED TO THE RECORD IN RESPECT OF THE STEPS TAKEN BY THE ASSESSEE FOR RECOVERY OF THE DUES FROM THE U.S. BAS ED DEBTOR FOR SUPPLY OF GOODS. HE HAS FURTHER CONTENDED THAT APART FROM ALL THESE PROBLEMS IN THE BUSINESS FRONT, THE ASSESSEE WAS ALSO FACING LOT OF PROBLEMS ON THE FAMILY FRONT AS THE SISTER OF THE ASSESSEE WAS ALSO FACING DIVORCE PROCEEDINGS AND ULTIMATELY THE COURT PROCEEDINGS HAS RESULTED INTO DIVORCE TO HIS SISTER. DUE TO LOSS SUFFERED BY THE ASSESSEE AND NON-RECOVERY O F DEBTS, THE ASSESSEE HAS ALSO FACED VARIOUS COURT CASES ON ACCOUNT OF DI SHONOR OF CHEQUES AND THEREFORE, HE HAS FACED THE COURT PROCEEDINGS U/S 1 38 OF THE NEGOTIABLE INSTRUMENTS ACT. THE LD AR HAS FURTHER POINTED OUT THAT THE FATHER OF THE ASSESSEE WAS SUFFERING FROM CANCER AND HAS BEEN UNDE RGOING THE TREATMENT OF VARIOUS HOSPITALS INCLUDING SANTOKBA D URLABH JI HOSPITAL, BREECH CANDY HOSPITAL, MUMBAI AS WELL AS OTHER HOSPI TALS, THEREFORE, THE ASSESSEE HAS SPENT LOT OF TIME AND MONEY IN THE TRE ATMENT OF HIS FATHER SINCE THE YEAR 2012. HE HAS REFERRED THE MEDICAL RE CORD OF HIS FATHER REGARDING TREATMENT OF CANCER. THUS, THE LD AR HAS S UBMITTED THAT DUE TO ALL THESE PROBLEMS, THE ASSESSEE COULD NOT TAKE STE PS TO FILE THE APPEAL ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 4 AGAINST THE IMPUGNED ORDER WITHIN THE PERIOD OF LIMI TATION AND THEREFORE, THERE WAS A DELAY OF 387 DAYS IN FILING THE APPEAL. THE LD AR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS EXPLAINED THE SUFFICIENT REASONS FOR NOT FILING THE APPEAL, THEN THE DELAY IN FILING THE APPEAL MA Y BE CONDONED BY TAKING A LIBERAL VIEW AS HELD BY THE VARIOUS COURTS INCLUDI NG THE HON'BLE SUPREME COURT AS WELL AS VARIOUS HON'BLE HIGH COURTS. IN SUP PORT OF HIS CONTENTION, HE HAS RELIED UPON THE FOLLOWING DECISIONS: (I) VIJAY VISHAN MEGHANI VS DCIT (2017) 398 ITR 250 (MUM). (II) JUST STEELS VS DCIT (2012) 74 DTR (MA) 86. (III) ORACLE INDIA PVT. LTD. VS DCIT (2008) 13 DTR 3 71. THE LD AR HAS SUBMITTED THAT WHEN THE CAUSE OF DELAY HAS BEEN EXPLAINED BY THE ASSESSEE WHICH IS NOT MALAFIDE THEN THE TIME PERIOD OF DELAY SHOULD NOT BE CONSIDERED AS A RELEVANT FACTOR. 4. ON THE OTHER HAND, THE LD CIT-DR HAS SUBMITTED T HAT THERE IS AN INORDINATE DELAY OF 387 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS NOT EXPLAINED ANY REASONABLE CAUSE FOR THE DELAY IN FIL ING THE PRESENT APPEAL. THOUGH, THE ASSESSEE HAS SHIFTED THE BLAME TO THE C. A. WITHOUT TAKING STEPS FOR FILING THE APPEAL, WHICH WERE ENTIRELY IN T HE CONTROL OF THE ASSESSEE. THEREFORE, THE LD CIT DR HAS SUBMITTED THA T DESPITE ALL THESE PROBLEMS AS EXPLAINED BY THE ASSESSEE AS CAUSE OF D ELAY, THE ASSESSEE WAS DOING THE BUSINESS AND THEREFORE, WHEN THE ASSESSEE COULD FIND THE TIME TO ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 5 DO HIS BUSINESS THEN NON-FILING OF THE APPEAL IN TH E GARB OF THE VARIOUS PROBLEMS CANNOT BE CONSIDERED AS A REASONABLE EXPLA NATION AND CAUSE OF DELAY IN FILING THE APPEAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS EXPLAINED THE R EASONS FOR DELAY AS ATTRIBUTABLE TO THE VARIOUS PROBLEMS ON THE BUSINES S FRONT, FAMILY FRONT AS WELL AS THE ASSESSEE WAS HAVING SOME DISPUTE WITH HIS C.A. IN SUPPORT OF HIS EXPLANATION, THE ASSESSEE HAS FILED THE RECORD REGARDING THE COMPLAINT AGAINST THE C.A. SHRI ANURAG KUMAR AGARWAL. THE ASSES SEE HAS ALSO FILED A COMPLAINT U/S 420, 367, 468 AND 471 OF THE IPC BEFO RE THE ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, JAIPUR. A COPY OF THESE RE CORDS HAVE BEEN FILED ALONGWITH THE APPLICATION FOR CONDONATION OF DELAY. THUS, THERE IS NO DENIAL THAT THE ASSESSEE HAS BEEN FIGHTING WITH HIS C.A. RE GARDING MANIPULATION OF THE ACCOUNTS AND FILING FALSE/WRONG RETURN OF INCOME WITHOUT THE KNOWLEDGE AND SIGNATURE OF THE ASSESSEE. THOUGH, THESE ALLEGAT IONS ARE SUBJECT MATTER OF THE PROCEEDINGS PENDING BEFORE THE COURT, HOWEVER , THE FACT WHICH IS UNDISPUTED THAT THE ASSESSEE HAS BEEN PROSECUTING T HE MATTER OF COMPLAINT AGAINST THE C.A. BEFORE THE VARIOUS AUTHORITIES INC LUDING THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, JAIPUR. TH E ASSESSEE HAS ALSO FILED THE RECORD OF THE EXPORTS MADE TO M/S SHREE GEMS IN C, 22 WEST, 48 TH STREET SUITE NO. 1203, NEW YORK NY 10036 USA. THE ASS ESSEE HAS ALSO ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 6 PLACED ON RECORD THE TRAVEL DOCUMENTS SHOWING THE VI SIT OF THE ASSESSEE TO THE USA AS WELL AS THE DOCUMENTS OF EXPORT, SHIPPING BILLS, CLEARANCE OF CARGO ETC. THUS, WE FIND THAT THESE EXPLANATIONS AND REASONS OF DELAY ARE BASED ON TRUE FACTS WHICH ARE SUBSTANTIATED BY THE D OCUMENTARY EVIDENCE. FURTHER THE ASSESSEE HAS ALSO FILED THE MEDICAL REC ORD OF AILMENT OF HIS FATHER SUFFERING FROM CANCER. WE FIND THAT THE FATH ER OF THE ASSESSEE HAS BEEN UNDERGOING THE CANCER TREATMENT SINCE THE YEAR 2012. THE MEDICAL RECORD OF TREATMENT FROM BREACH CANDY HOSPITAL, MUM BAI SHOWS THAT THE ASSESSEES FATHER IS BEING TREATED FROM BREACH CAND U HOSPITAL. THUS, THE REASONS EXPLAINED BY THE ASSESSEE ARE FOUND TO BE T RUE AND THEREFORE, THESE ARE BONAFIDE EXPLANATION AND NOT MALAFIDE. IT IS SETTLED PROPOSITION OF LAW THAT THE COURT SHOULD TAKE LENIENT VIEW ON THE MA TTER OF CONDONATION OF DELAY PROVIDED THE EXPLANATION AND REASONS FOR DELA Y IS BONAFIDE AND NOT MERELY A DEVICE TO COVER AN ULTERIOR PURPOSE OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDERHAND WAY. WHILE CONSTRUING THE SUFFICIENT CAUSE, A LIBERAL VIEW SHOULD BE TAKEN AND COURT SHOULD LEAN I N FAVOUR OF THE PARTY AS EXPLAINED THE REASONS FOR DELAY AS BONAFIDE. WHENEV ER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE OPPOSED TO EACH OT HER, CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED. ON THE FAC TS AND REASONS EXPLAINED BY THE ASSESSEE, WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTED FROM FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION. T HE REASONS AS EXPLAINED IN ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 7 THE APPLICATION FOR CONDONATION OF DELAY ARE DULY S UPPORTED BY DOCUMENTARY EVIDENCE, THEREFORE, THERE IS NOTHING O N RECORD TO SUGGEST THAT THE ASSESSEE HAS TAKEN ANY ADVANTAGE IN FILING THE PRESENT APPEAL BELATEDLY. THUS, ONCE THE ASSESSEE EXPLAINED THE CAU SE OF DELAY WHICH IS FOUND AS BONAFIDE AND NOT A DEVICE TO COVER AN ULTE RIOR PURPOSE THEN THE LENGTH OF DELAY ITSELF CANNOT BE A REASON FOR DENYI NG THE CONDONATION. THUS, WHEN THE ASSESSEE WAS PASSING THROUGH A BAD PHA SE FOR SUCH A LONG TIME ON BUSINESS FRONT AS WELL AS ON FAMILY FRONT AN D FACING THE PROBLEM EVEN WITH THE CA AND FIGHTING FOR GETTING HIS ACCOUN T SET RIGHT. THEN IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTE REST OF JUSTICE, WE CONDONE THE DELAY OF 387 DAYS IN FILING THE PRESENT APPEAL. SINCE THE MATTER WAS HEARD ONLY ON THE CONDONATION OF DELAY AN D THEREFORE, THE MERITS OF THE MATTER IS REQUIRED TO BE HEARD AND AD JUDICATED. ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE A SSESSEE FOR DECIDING ON MERITS IN REGULAR COURSE. THE PARTIES BE INFORMED. 6. IN THE RESULT, THE CONDONATION OF DELAY IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 TH SEPTEMBER, 2018 *RANJAN ITA 825/JP/2018_ NITESH AGARWAL VS ACIT 8 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI NITESH AGARWAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CIRCLE-5, JAIPUR. 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. 825/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR