M/s Ajay Kumar Sood & Engineers & Contractors, Shimla V. DCIT, CC-II, Chandigarh

ITA 83/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6687 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRAKANTA SR DR
• Keywords: Condonation of delay; Bonafide mistake; Ignorance of law
• Section: 271(1)(c)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CH A, CHANDIGARH , . '.., # $, %& BEFORE: SH. SANJAY GARG, JUDICIAL MEMBER & DR. B.R. R. KUMAR, ACCOUNTANT MEMBER ./ ITA NO. 83/CHD/2018 / ASSESSMENT YEARS : 2011-12 M/S AJAY KUMAR SOOD ENGINEERS & CONTRACTORS, SANJAY SADAN, CHOTTA SHIMLA (H.P.) THE DY. CIT CENTRAL CIRCLE-II, CHANDIGARH ./ PAN NO: AAKFA 4648J / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI. SUDHIR SEHGAL # ! ' / REVENUE BY : SMT. CHANDRAKANTA, SR. DR $ % ! &/ DATE OF HEARING : 28/02/2019 '()* ! &/ DATE OF PRONOUNCEMENT : 06/05/2019 %'/ ORDER PER DR. B.R.R. KUMAR, A.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A)-3, GURGAON DT. 03/11/2017. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN NOT ENTERTAINING THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DELAY IN FILING THE APPEAL. 2. THAT THE LD. CIT(A) HAS ERRED IN NOT CONDONING THE DELAY IN FILING THE APPEAL, WHICH WAS DUE TO BONAFIDE REASON. 3. THAT THE SUBMISSIONS MADE DURING THE COURSE OF HEAR ING BEFORE THE LD. CIT(A) WITH REGARD TO DELAY HAVE NOT BEEN CONSIDERE D PROPERLY. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE WAS CONDUCTED ON 08.10.2010. THE INCOME TAX RETURN WAS FILED ON 28.0 3.2012 DECLARING INCOME OF RS. 90,05,810/-. ASSESSMENT WAS COMPLETED BY ASSESS ING THE INCOME AT RS. 2 4,30,65,183/- VIDE ORDER DATED 28.03.2013 AND THE A SSESSING OFFICER INITIATED PENALTY UNDER SECTION 271AAA OF THE ACT ON THE AMOU NT SURRENDERED OF RS. 1.75 CRORES. 3.1 THEREAFTER, VIDE HIS PENALTY ORDER DATE 27.03.2 015, THE ASSESSING OFFICER LEVIED PENALTY AMOUNTING TO RS. 17,50,000/- (10% OF THE SURRENDERED INCOME OF RS. 1.75 CRORES). 3.2 SIMULTANEOUSLY, THE ASSESSING OFFICER LEVIED PE NALTY UNDER SECTION 271(1)(C) OF THE ACT VIDE HIS ORDER DATED 27.03.201 5. 3.3 AGAINST THE SAID TWO ORDERS, THE ASSESSEE, FILE D A CONSOLIDATED APPEAL BEFORE THE CIT(A) I.E. A SINGLE APPEAL WAS FILED AG AINST TWO PENALTY ORDERS ON 21.04.2013. THE SAID APPEAL WAS FILED WITHIN THE 30 DAYS OF PASSING THE ORDER. AFTERWARDS, THE ASSESSEE REALIZED THE FACT THAT FIL ING A SINGLE APPEAL AGAINST TWO PENALTY ORDERS PASSED UNDER TWO DIFFERENT SECTIONS IS NOT PERMISSIBLE AS PER LAW. THE APPELLANT THEN FILED A SEPARATE APPEAL AGAINST THE ORDER PASSED UNDER SECTION 271AAA. THE SAID APPEAL WAS FILED ON 17/02/ 2017 WHICH IS LATE BY 639 DAYS. 4. THE CIT(A)DISMISSED THE APPEAL OF THE APPELLANT ON THE GROUND THAT IGNORANCE OF LAW IS NOT A GROUND TO CONDONE THE DEL AY. THE LD. CIT(A) RELIED ON THE JUDGMENT IN THE CASE OF INDIA GOSPEL FELLOWHSIP TRUST 331 ITR 283 (MAD) FOR THIS PROPOSITION. RELYING ON RANKAK AND OTHERS VS. REWA COALFIELDS LTD. AIR 1962 SC 361 AND ALSO ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN CASE OF MADHUR DADHA VS. ACIT (MAD) 317 IR 458, THE LD. CI T(A) HELD THAT CONDONATION IS NOT THE MATTER OF RIGHT AND COURT HAS TO EXERCIS E THE DISCRETIONARY JURISDICTION. 5. WE HAVE GONE THROUGH THE FACTS OF THE RECORD. IT S A MATTER OF PUBLIC KNOWLEDGE AND BELIEF THAT THERE IS ONLY ASSESSMENT FOR ONE YEAR AND ONE PENALTY ORDER FOR ONE ASSESSMENT YEAR IS GENERALLY THE NORMS. PENALTY UNDER SECTION 271AAA HAS BEEN BROUGHT IN AS A SPECIAL PRO VISION UNDER THE INCOME TAX ACT,1961. IN THE INSTANT CASE THE ASSESSEE HAS FILED APPEAL AGAINST THE PENALTY ORDER UNDER SECTION 271AAA BEFORE THE LD. C IT(A), HOWEVER, IT WAS TAGGED ALONG WITH THE APPEAL AGAINST THE PENALTY UN DER SECTION 271(1)(C). THIS CLEARLY GOES TO PROVE THAT THERE WAS AN APPEAL FILE D WITHIN THE DUE DATE. YET, THE TECHNICALITIES HAVE BEEN INFRACTED UPON WHICH C AN BE CLEARLY CONSIDERABLE AS A BONAFIDE MISTAKE. CONDONATION OF DELAY IS A S UBJECTIVE ISSUE AND IS TO BE VIEWED IN THE FACTS EACH CASE. IN GENERAL, THE SEVE RAL COURTS HAVE HELD THAT THE 3 APPROACH TOWARDS CONDONATION OF DELAY HAS TO BE PRAGMATIC AND LIBERAL AND NOT PEDANTIC. KEEPING IN VIEW THE ABOVE FACTS IT CA NNOT BE SAID THAT THE ASSESSEE HAS ACCRUED ANY BENEFIT BY FILING THE APPE AL LATE, THE SAME TIME REVENUE IS NOT PREJUDICED IF THE CASE IS CONSIDERED ON MERITS INSTEAD OF DISMISSING ON HYPER-TECHNICALITIES. RELIANCE IS PLACED ON THE JUDGEMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF MANOJ AHUJA (MI NOR) & ANR VS. IAC IN 150 ITR 0696, AND SMC CAPITALS LTD. NEW DELHI, IN ITA NO.13 42/DEL/2010. HENCE, WE HERE BY DIRECT THAT THE DELAY MAY BE CONDONED AND A PPEAL BE HEARD ON THE MERITS OF THE CASE AS PER THE PROVISIONS OF THE INCOME TAX ACT,1961. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- . '.., # $, (SANJAY GARG ) ( DR. B.R.R. KUM AR) / JUDICIAL MEMBER %& / ACCOUNTANT MEMBER AG DATE: 06/05/2019 (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2 THE RESPONDENT , 3. CIT, 4. THE CIT(A), 5. DR, ITAT, CHANDIGARH, 6. GUARD FILE