Smt. Sujata Verma, Indore V. The ITO, Ward- 2(3), Indore

ITA 9/IND/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61994 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-10-2011
• Assessment Year: misc
• Appeal Filed On: 22-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DARSHAN SINGH
• Assessee Lawyers: SANJAY SODANI
• Keywords: Opportunity of being heard; Ignorance of law
• Section: 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI R.C. SHARMA , AM ITA NOS.9 TO 11/IND/2011 A.YS. 1988-89, 1989-90 AND 1993-94 SMT. SUJATA VERMA INDORE PAN AADCP 3506G :: APPELLANT VS INCOME TAX OFFICER WARD 2(3) INDORE :: RESPONDENT APPELLANT BY SHRI SANJAY SODANI RESPONDENT BY SHRI DARSHAN SINGH DATE OF HEARING 24. 05.2012 DATE OF PRONOUNCEMENT 0 5 . 0 6 .2012 O R D E R PER R.C. SHARMA, AM THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME 2 TAX (APPEALS) FOR THE ASSESSMENT YEARS 1988-89, 198 9-90 AND 1993-94 IN THE MATTER OF ORDER PASSED U/S 144/1 48 OF THE ACT. 2. THERE IS DELAY IN FILING OF THESE APPEALS BEFORE THE TRIBUNAL. THE REASONS GIVEN FOR THE DELAY IN THE ASSESSMENT YEAR 1988-89 READ AS UNDER :- THAT THE APPELLANT IS A MARRIED DAUGHTER OF LATE SHRI NAMDEO PANJWANI. THAT SHRI NAMDEO PANJWANI DIED ON 21.08.2009. THAT IN THE YEAR 1992-93 ACTION U/S 132 WAS TAKEN BY THE DEPARTMENT AGAINST LATE SHRI PANJWANI AS WELL AS COMPANIES IN WHICH HE OR HIS FAMILY MEMBERS WERE DIRECTORS/PARTNERS. DURING THE COURSE OF SEARCH LATE SHRI NAMDEV PANJWANI HAD STATED THAT ANY INVESTMENTS OF ANY NATURE OR INCOME FOUND IN THE NAME OF HIS FAMILY MEMBERS ARE PERTAINING TO HIM OR HIS COMPANIES. THAT IN THE APPELLANTS CASE HER 3 FATHER WAS FILING HER RETURNS AS WELL AS MANAGING FUNDS IN HER NAME, IN HIS OWN WAY AND SHE WAS NOT AWARE OF ANYTHING. HER FATHER, EVEN AFTER SEARCH, WAS TAKING CARE FO HER FILE, DUE TO THE BIRTH OF PREMATURE CHILD. AN AFFIDAVIT TO THIS EFFECT STATING THAT INCOME OR INVESTMENTS IN THE NAME OF HIS FAMILY MEMBERS ARE PERTAINING TO HIM WAS ALSO FURNISHED WITH THE DEPARTMENT AND THE SAME HAS BEEN CONSIDERED BY THE DEPARTMENT AND SO ALSO BY THE APPELLANT AUTHORITIES. HOWEVER, THE APPELLANT WAS TOTALLY UNAWARE OF THE FACT THAT SOME CASES HAVE BEEN DECIDED AGAINST HER AND SECOND APPEALS HAVE TO BE FILED AGAINST SUCH ORDERS. IN THIS RESPECT, THE APPELLANT HUMBLY SUBMITS THAT THE FATHER OF THE APPELLANT GOT SICK IN 1997 AND IN 1998 HE HAS UNDERGONE FOR 4 BY-PASS SURGERY DUE TO CARDIAC ATTACK AND GOT PARALYSED IN 1999 DUE TO OTHER PHYSICAL PROBLEMS AND THEREAFTER THE COUNSEL OF GROUP CONCERNS SHRI V.C. JAIN, CHARTERED ACCOUNTANT DIED IN 2001. AFTER THAT THE BROTHER OF THE APPELLANT WAS LOOKING AFTER THE MATTERS ON NEED BASE, AS HE WAS NOT INVOLVED AT ANY STAGE EARLIER. THAT THE BROTHER OF THE ASSESSEE COULD FOLLOW UP THE MATTER WHICH WAS ALIVE AT THAT TIME PENDING PRIOR TO 2001 WHICH IS EVIDENT FROM THE ORDERS OF THE HONBLE ITAT THAT APPEALS PENDING BEFORE HIM WERE SET ASIDE FOR THE REASON THAT NO PROPER OPPORTUNITIES WERE GIVEN AND ASSESSMENTS WERE COMPLETED WITHOUT PROVIDING RECORDS. IT IS IMPORTANT TO NOTE THAT IN THE YEAR 2008 THE MOTHER OF THE APPELLANT HAS PASSED AWAY IN A ROAD ACCIDENT AND AFTER THAT FATHER OF THE APPELLANT DIED ON 21.08.2009. THEREAFTER, 5 DISPUTES BETWEEN THE LEGAL HEIRS OF THE LATE PARENTS BECAME GRAVE AND STRENUOUS I.E. BETWEEN THE APPELLANT AND HER BROTHER. ON RECEIPT OF RECOVERY NOTICE THE BROTHER OF THE APPELLANT DENIED TO ATTEND THE MATTER AND EVEN OTHERWISE NOT AGREED TO PROVIDE DETAILS ABOUT THE SAME. THIS IS BECAUSE RELATIONSHIP BETWEEN LEGAL HEIRS OF THE PARENTS OF THE APPELLANT WERE STRENUOUS AND THE SAME IS ALSO ON RECORDS WITH THE HONBLE BENCH. UPON CONSTANT PURSUANCE, THE RECORDS RELATED TO THE PENDING MATTERS COULD BE OBTAINED FROM HIM IN THE MONTH OF JANUARY 2011 INSPITE OF TIME TO TIME REMINDERS. THEN THE APPELLANT COULD BE ABLE TO KNOW ABOUT THE SAME. HOWEVER IN RESPONSE TO NOTICE/SUMMONS FROM THE LEARNED TAX RECOVERY OFFICER THE APPELLANT APPEARED AND STATED THAT ANY INVESTMENT OR ANY INCOME 6 FOUND IN HER NAME WAS PERTAINING TO HER FATHER AND SHE WILL FURNISH DETAILS BEFORE HIM AFTER OBTAINING RECORDS FROM HIS BROTHER. CONSIDERING THE ABOVE STATED CIRCUMSTANCES WHICH WERE BEYOND CONTROL OF THE APPELLANT AND NOW THE APPELLANT IS TRYING TO SORT OUT THE MATTERS BY WAY OF LEGAL REMEDY AVAILABLE TO HER AND HENCE FILING THIS APPEAL DELAYED BY 13 YEARS 7 MONTHS AND 28 DAYS. 3. SIMILAR REASONS HAVE BEEN GIVEN FOR THE ASSESSME NT YEARS 1989-90 AND 1993-94. 4. THE LD. COUNSEL FOR THE ASSESSEE ALSO PLACED ON RECORD MEDICAL REPORT, PHOTOGRAPHS AND AFFIDAVIT TO SUBSTANTIATE THE FACTUAL AND GENUINE REASON FOR THE DELAY IN FILING THESE APPEALS. IT WAS, THEREFORE, CONTEND ED THAT THE DELAY IN FILING OF THE APPEALS WAS FOR BONA FID E REASONS, THEREFORE, DESERVES TO BE CONDONED. 7 5. THE LD. COUNSEL FOR THE ASSESSEE ALSO PLACED REL IANCE ON THE DECISION OF THE ITAT COORDINATE BENCH IN THE CASE OF ALL INDIA PRIMARY TEACHERS VS. DIT WHEREIN DELAY OF 43 YEARS, 8 MONTHS AND 14 DAYS WAS CONDONED ON THE GROUND OF BONAFIDE REASON AND TO SUBSTANTIATE THE C AUSE OF JUSTICE. RELIANCE WAS ALSO PLACED ON THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF MOTILAL PADAMPAT SUGAR MILLS CO. LTD., VS. STATE OF U.P; 11 8 ITR 326 IN SUPPORT OF THE PROPOSITION THAT THERE WAS NO SUCH MAXIM THAT EVERYBODY KNOWS THE LAW. RELIANCE WAS A LSO PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF M/S MST KATIJA; 167 ITR 471 WHEREIN IT WAS HELD THAT WHERE THERE ARE SUFFICIENT AND GOOD REASO NS DUE TO WHICH DEFAULT OCCURRED IN FILING OF APPEAL BELATEDLY, FOR ADVANCEMENT OF CAUSE OF SUBSTANTIAL JUSTICE, DELAY MAY BE CONDONED. ON THE OTHER HAN D LD. CIT DR OPPOSED THE CONDATION OF DELAY. 8 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. THE ISSUE IS WHETHER THE DELAY IN FILING OF APPEAL BY THE ASSESSEE WAS ON ACCOUNT OF SUFFICIENT REASONS OR NO T. IF THE REASONS ARE FOUND TO BE SUFFICIENT AND BONA FID E THE DELAY DESERVES TO BE CONDONED. BEFORE WE EVALUATE T HE SUFFICIENCY OF THE REASONS, IT WOULD BE OF RELEVANC E TO KEEP IN MIND THE BROAD JUDICIAL THOUGHTS ON THE ISS UE. NO DOUBT FILING OF APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRI VILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEAL S ARE TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, LIBERAL APPROACH HAS TO BE ADOPT ED BY THE APPELLATE AUTHORITIES WHERE DELAYS HAVE OCCURRE D FOR BONA FIDE REASONS ON THE PART OF THE ASSESSEE OR RE VENUE IN FILING APPEALS. IN MATTERS CONCERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFU SAL TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BE ING THROWN OUT AT THE VERY THRESHOLD WHICH WOULD LEAD T O 9 MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. 7. THE HONBLE APEX COURT IN THE CELEBRATED DECISI ON IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KA TIJI & ORS. 167 ITR 471 OPINIED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AG AINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY IN A DISPUTE CANNOT HAVE A VESTED RI GHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTER S RELATING TO THE CONDONATION OF DELAYS A JUDICIOUS A ND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CA USE IS FOUND TO EXIST WHICH IS BONA FIDE AND NOT DUE TO NEGLIGENCE OF THE APPLICANT, THE DELAY NEEDS TO BE CONDONED IN SUCH CASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS T O APPLY 10 THE LAW IN MEANINGFUL MANNER WHICH SUBSERVES THE EN D OF JUSTICE THAT BEING THE LIFE PURPOSE OF THE EXI STENCE OF THE INSTITUTION OF COURTS. WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. HON'BLE SUPREME COURT IN CASE OF VEDABHAI V/S SANTARAM, 253 ITR 798 HAD OBSERVED THAT INORDINATE DELAY CALLS FOR CAUTIONS APPROACH. THIS MEANS THER E SHOULD BE NO MALAFIDE OR DILATORY TACTICS. SUFFIC IENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVAN CE SUBSTANTIAL JUSTICE. 8. THE HON'BLE SUPREME COURT IN THE CASE OF COLLECT OR, LAND ACQUISITION VS. MST. KATIJI: 167 ITR 471 OBSER VED AS UNDER: 3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURT S TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING O F MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT 11 CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENC E OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBER AL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 9. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CA SE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS O F EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESS ION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERA L CONSTRUCTION. 12 10. HAVING MADE THE AFORESAID OBSERVATION, WE MAY N OW CONSIDER THE PLEA OF THE ASSESSEE IN THE SAID LIGHT . THE CIRCUMSTANCES NARRATED BY THE ASSESSEE SHOW THAT TH E DELAY IN FILING THE APPEAL IS MAINLY ATTRIBUTED TO MEDICAL REASONS AND BIRTH OF PREMATURE CHILD WHO WAS FACING SEVERE MEDICAL PROBLEMS AND UNDERGOING SERIES OF OPERATIONS, HEART OPERATION OF FATHER AND THEREAFTE R HIS DEATH, FAMILY DISPUTES AND IGNORANCE OF LAW ETC. TH E REASONS SO ADVANCED HAD ALSO BEEN SUPPORTED BY AN AFFIDAVIT, MEDICAL REPORTS AND PHOTOGRAPHS, AND WE DO NOT FIND ANYTHING TO DOUBT THE BONA FIDES OF THE AVERMENTS MADE THEREIN. THE FACT THAT THE ASSESSEE IS A HOUSEHOLD LADY AND NOT CONVERSANT WITH THE PROVISIO NS OF LAW IN FILING THE APPEAL ALSO COME IN THE WAY TO RE SCUE THE LADY IN TERMS OF DECISION OF HONBLE SUPREME CO URT IN CASE OF PADAMPAT SUGAR MILLS; 118 ITR 326 THAT THER E IS NO SUCH MAXIM THAT EVERYBODY KNOWS THE LAW. CONSIDERING THE ENTIRE GAMUT OF FACTS, THE AVAILABL E MATERIAL ON RECORD AND AVERMENTS OF THE ASSESSEE, W HICH 13 IS SUPPORTED BY AN AFFIDAVIT, PHOTOGRAPHS AND MEDIC AL REPORTS, IN THE ABSENCE OF ANY CONTRARY MATERIALS B ROUGHT TO OUR NOTICE WE DEEM IT FIT AND PROPER TO HOLD THA T THE ASSESSEE HAD BONA FIDE AND SUFFICIENT REASONS FOR D ELAY IN FILING THE APPEALS. IN THE INTEREST OF SUBSTANTIAL CAUSE OF JUSTICE, SUCH DELAY IS CONDONED. 11. FROM THE ORDER OF THE ASSESSING OFFICER WE FIND THAT EX PARTE ORDER HAS BEEN PASSED BY THE ASSESSING OFF ICER AS THE ASSESSEE COULD NOT FURNISH THE INFORMATION A SKED BY THE ASSESSING OFFICER FOR THE REASONS DISCUSSED HEREINABOVE. IN THE INTEREST OF JUSTICE, WE RESTOR E ALL THESE APPEALS TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER GIVING THE ASSESSEE DUE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO AT LIBERTY TO PLACE ON RECORD THE DOCUMENTARY EVIDENCE, IF ANY , TO SUBSTANTIATE HER CLAIM. THE ASSESSING OFFICER IS TO DECIDE AFRESH AS PER LAW AFTER CONSIDERING THE ENTIRE MATE RIAL PLACED ON RECORD. WE DIRECT ACCORDINGLY. 14 12. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED IN PART FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 5 TH JUNE, 2012 SD SD (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED - 5 TH JUNE, 2012 DN/-1.1.6 6.6.