Nirmala Jagannathan, New Delhi V. ITO, New Delhi

ITA 928/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4220 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 21-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 05-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K MEHRA
• Assessee Lawyers: BANITA DEVI NAROREM
• Keywords: Principle of natural justice; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA ITA NO. 928/DEL/10 ASSTT. YR: 2004-05 NIRMALA JAGANATHAN VS. INCOME-TAX OFFICER, PROP. M/S KIRAT, F-221, WARD 24(3), NEW DELHI. SAINIK FARMS, NEW DELHI. PAN/ GIR NO.AAUPJ3407A ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI R.K. MEHRA CA ASSESSEE BY : SMT. BANITA DEVI NAROREM DR O R D E R PER R.P. TOLANI, J.M: : THIS IS ASSESSEES APPEAL AGAINST CIT(A)S ORDER DATED 29-1-2010 RELATING TO A.Y. 2004-05. IN MEMO OF APPEAL, FOLLOW ING GROUNDS ARE RAISED: A) ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE O RDER PASSED BY THE LEARNED COMMISSIONER OF THE INCOME TA X (APPEALS) (CIT(A)) DISALLOWING CLAIM OF DEDUCTION O F RS. 8,93,631/- ON ACCOUNT OF REPAIR & MAINTENANCE OF GE NERATOR, & RS. 171618/- ON ACCOUNT OF PERSONAL ELEMENT IN PO STAGE & TELEGRAM IS BAD BOTH IN THE EYE OF LAW & ON FACTS. B) ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE CONTENTION OF THE AO THAT THE AUTHORISED REPRESENTA TIVE WAS UNABLE TO PROVIDE ANY EVIDENCE OF THE EXPENDITURE. C) THAT THE APPELLANT CRAVES, LEAVE TO ADD, AMEND O R ALTER ANY OF THE GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE FILED APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS, WH ICH ARE AS UNDER: 2 A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE P ETITIONERS CASE, THE LEARNED CIT(A)-23, NEW DELHI ERRED IN LAW AND ON TH E FACTS, IN DECIDING THE APPEAL PETITION FILED BY THE PETITIONE R EX-PARTE, WITHOUT AFFORDING HER PROPER OPPORTUNITY TO REPRESENT HER C ASE. B. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE P ETITIONERS CASE, THE LEARNED CIT(A)-23, NEW DELHI ERRED IN LAW AND ON TH E FACTS, IN NOT PROVIDING SUFFICIENT OPPORTUNITY TO ALLOW THE PETIT IONER TO FILE REQUEST LETTER FOR CONDONING THE DELAY FOR FAILING TO FILE THE APPEAL PETITION WITHIN THE PERIOD OF LIMITATION. 3. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET CONTENDS THAT THE ASSESSEE IS AN OLD LADY. AGAINST THE ORDER OF AO, A PPEAL WAS FILED BEFORE CIT(A) ON ACCOUNT OF DISALLOWANCES OF EXPENSES INCU RRED ON REPAIR & MAINTENANCE OF GENERATOR; AND POSTAGE & TELEGRAM. ACCORDING TO ASSESSEE, THERE WAS NO DELAY IN FILING THE APPEAL, THEREFORE, THE CONDONATION PETITION WAS NOT FILED. 3.1. CIT(A), HOWEVER, DID NOT ISSUE ANY DEFECTIVE M EMO IN RESPECT OF ALLEGED DELAYED FILING OF APPEAL, THEREFORE, ASSESS EE COULD NOT FILE CONDONATION APPLICATION AS HE WAS UNDER THE BONA FI DE IMPRESSION THAT APPEAL WAS NOT DELAYED. CIT(A), THUS, WITHOUT BRIN GING TO THE NOTICE OF THE ASSESSEE, HELD THAT APPEAL WAS BARRED BY LIMITATION . FURTHER, THOUGH THE APPEAL WAS HELD TO BE NOT MAINTAINABLE, CIT(A) DECI DED MERITS OF THE APPEAL ALSO, THUS DISMISSING THE APPEAL ON BOTH THE COUNTS . 3.2. LEARNED COUNSEL CONTENDS THAT IT STILL MAINTAI NS THAT THE APPEAL WAS FILED WITHIN TIME, NO DEFECT MEMO IN RESPECT OF DEL AYED APPEAL WAS GIVEN. THEREFORE, IN THE INTEREST OF JUSTICE, ASSESSEE DES ERVES TO BE HEARD ON THIS ISSUE BY WAY OF A FAIR OPPORTUNITY BY THE CIT(A). 4. LEARNED DR IS HEARD. 3 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. ADDITIONAL GROUNDS RA ISED BY THE ASSESSEE ARE LEGAL IN NATURE, THEREFORE, THE SAME ARE ADMITTED. CIT(A) DID NOT ISSUE A DEFECT MEMO FOR LATE FILING OF APPEAL. IT IS A SETT LED PROPOSITION OF LAW THAT IF THE APPEAL IS PROPOSED TO BE DISMISSED AS DELAYED, A DEFECT MEMO SHOULD BE GIVEN TO THE ASSESSEE TO APPRISE IT OF THE DELAY, I F ANY. IN VIEW OF THESE FACTS, THE ASSESSEES RIGHT OF NATURAL JUSTICE HAS BEEN DE NIED, WHICH NEEDS TO BE RESTORED. FURTHER, IN THE NORMAL COURSE, IF THE ASS ESSEES APPEAL IS FOUND TO BE NOT MAINTAINABLE DUE TO LATE FILING, THERE WAS NO N EED FOR THE CIT(A) TO GO BEYOND A NON-MAINTAINABLE APPEAL TO DECIDE THE MERI TS. IN OUR VIEW THE CIT(A)S ORDER NEEDS TO BE SET ASIDE, RESTORED BACK TO HIS FILE TO DECIDE THE APPEAL AFRESH BY ISSUING A PROPER DEFECT MEMO ABOUT THE DELAYED FILING OF APPEAL, IF ANY, FOR HEARING THE ASSESSEE ON CONDONA TION AND ON MERITS BOTH. IN VIEW OF THE FACT THAT CIT(A) OUGHT NOT TO HAVE D ECIDED THE MERITS, HAVING HELD THAT ASSESSEES APPEAL WAS NOT MAINTAINABLE, I N VIEW THEREOF WE SET ASIDE THE APPEAL BACK TO THE FILE OF AO TO DECIDE T HE APPEAL AFRESH AFTER PROVIDING THE ASSESSEE AN OPPORTUNITY OF BEING HEAR D. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 21-04-2011. SD/- SD/- ( B.C. MEENA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21-04-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4