Smt. Gitaben H.Gajjar, Ahmedabad V. The Dy.CIT.,Circle-12, Ahmedabad

ITA 833/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6008 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 16-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: D R THAKKAR
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , !' # $ $ $ $ %, # BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER $./ I.T.A. NO.833/AHD/2011 ( ( )( ( )( ( )( ( )( / / / / ASSESSMENT YEAR : 2007-08) SMT.GITABEN H.GAJJAR 8, PRITIKUNJ SOCIETY MANINAGAR AHMEDABAD / VS. THE DY.CIT CIRCLE-12 AHMEDABAD #* !' $./+, $./ PAN/GIR NO. : ACQPG 0728 F ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 ! / APPELLANT BY : SHRI D.R. THAKKAR, A.R. ./*- 1 0 ! / RESPONDENT BY : SHRI DINESH SINGH SR.DR 2 1 ' / / / / DATE OF HEARING 24/07/2014 34) 1 ' / DATE OF PRONOUNCEMENT 25/07/2014 !5 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XX, (CIT(A) IN SHORT) DATED 13/01/2011 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L:- 1.01. THAT LEARNED C.I.T.(A)-XX, ERRED IN REJECTING MY RE QUEST FOR CONDONATION OF DELAY. 1.02. THAT VARIOUS REASONS ADVANCED BY LEARNED CIT(A)-XX ARE CONTRARY TO THE FACTS. 1.03. WITHOUT PREJUDICE TO THE ORDER PASSED BY LEARNED CI T(A)-XX, APPELLANT THEREFORE SUBMIT THAT HE SHOULD HAVE TO C ONDONE DELAY IN FILING OF APPEAL. ITA NO.833/AHD/ 2011 SMT. GITABEN H. GAJJAR VS. DY.CIT ASST.YEAR 2007-08 - 2 - 1.04. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR TO A MEND ANY OF THE GROUND OF APPEAL BEFORE FINAL HEARING OF THE AP PEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 24/12/2009, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS.5,24,016/- ON ACCOUNT OF SUPPRESSIO N OF THE GROSS PROFIT. AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE T HE LD.CIT(A). THIS APPEAL WAS DISMISSED BY THE LD.CIT(A) BEING DELAY I N FILING THE APPEAL FOR THREE MONTHS. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD.CIT(A) HAS NOT TAKEN INTO ACCOUNT THE REASONING GIVEN BY THE A SSESSEE. HE SUBMITTED THAT IN ALL FAIRNESS AND FAIR PLAY, THE ASSESSEE OU GHT TO HAVE GIVEN AN OPPORTUNITY TO PRESENT HER CASE. HE SUBMITTED THAT THE ASSESSEE IS HAVING A VERY GOOD CASE AND THERE IS EVERY LIKELIHOOD OF S UCCESS. HE FURTHER SUBMITTED THAT REJECTION OF CONDONATION OF DELAY AM OUNTED TO MISCARRIAGE OF JUSTICE. HE SUBMITTED THAT THE HONBLE APEX COU RT RENDERED IN THE CASE OF N.BALAKRISHNAN VS. M.KRISHNAMURTHY REPORTED AT (1998) 7 SCC 123. 4. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE FAILED TO DEM ONSTRATE THE REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL. H E SUBMITTED THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESS EE DOES NOT NEED ANY LENIENCY. ITA NO.833/AHD/ 2011 SMT. GITABEN H. GAJJAR VS. DY.CIT ASST.YEAR 2007-08 - 3 - 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT OF HONBLE APEX COURT REN DERED IN THE CASE OF N.BALAKRISHNAN VS. M.KRISHNAMURTHY REPORTED AT (199 8) 7 SCC 123. WE FIND THAT THERE IS A DELAY OF 90 DAYS IN PREFERR ING THE APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) DISMISSED THE APPEAL ON THE BASIS THAT THE ASSESSEE WAS NOT PREVENTED BY ANY REASONABLE CAUSE FOR FILING THE APPEAL IN TIME. BEFORE THE LD.CIT(A) THE ASSESSEE HAD FI LED AN AFFIDAVIT STATING THEREIN THAT THE APPEAL WAS NOT FILED UNDER THE IMP RESSION THAT THIS IS ROUTINE ADDITIONS, HOWEVER, ON RECEIPT OF PENALTY O RDER ASSESSEE REALIZED THE GRAVITY OF THE ISSUE. THE HONBLE SUPREME COUR T IN THE CASE OF N.BALAKRISHNAN VS. M.KRISHNAMURTHY(SUPRA) HAS HELD AS UNDER:- IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY, THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM . IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE D ELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME, THEN THE CO URT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING THE DELAY, THE COURT SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. I T MUST BE BORNE IN MIND THAT HE IS A LOSER AND HE TOO WOULD HAVE INCUR RED QUITE LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDEL INE THAT WHEN COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT, THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS LOSS. 5.1. WE HAVE CONSIDERED ALL THE ASPECTS OF THE MATT ER. IN OUR CONSIDERED VIEW, THE ASSESSEE IS A FEMALE AND NOT A WARE ABOUT THE PROVISIONS OF LAW. MOREOVER, WHILE DEALING WITH TH E CONDONATION OF DELAY, IT HAS BEEN HELD BY THE HONBLE SUPREME COUR T THAT UNLESS THERE IS A MALA FIDE INTENTION TO EVADE THE TAX, PROVISIONS IN CONDONING THE DELAY ITA NO.833/AHD/ 2011 SMT. GITABEN H. GAJJAR VS. DY.CIT ASST.YEAR 2007-08 - 4 - SHOULD BE CONSTRUED LIBERALLY. THEREFORE, RESPECT FULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF N.BALAKRISHNAN VS. M.KRISHNAMURTHY(SUPRA), WE FEEL THAT THE ASSESSEE S HOULD BE GIVEN ANOTHER CHANCE TO REPRESENT HER CASE AND, ACCORDIN GLY, THE DELAY OF 90 DAYS IS CONDONED AND THE APPEAL IS RESTORED BACK TO THE FILE OF LD.CIT(A) TO DECIDE IT AFRESH AFTER PROVIDING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( ) ( %) !' # # ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 07 /2014 8 .., .../ T.C. NAIR, SR. PS !5 1 .9 :!9) !5 1 .9 :!9) !5 1 .9 :!9) !5 1 .9 :!9)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. $$ ; / CONCERNED CIT 4. ;() / THE CIT(A)-XX, AHMEDABAD 5. 9%< . , , / DR, ITAT, AHMEDABAD 6. <=( >2 / GUARD FILE. !5 !5 !5 !5 / BY ORDER, /9 . //TRUE COPY// ? ?? ?/ // / $+ $+ $+ $+ ( DY./ASSTT.REGISTRAR) , ,, , / ITAT, AHMEDABAD