SHRI ASHWANI SINGH THAKUR, JAMMU V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JAMMU

ITA 94/ASR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3347 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-05-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMAR PAL MEENA
• Assessee Lawyers: BHAGAT
• Keywords: Right to appeal; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NOS. 94 & 95/ASR/2018 AS SESSMENT YEAR: 2013-14 ASHWANI SINGH THAKUR, 61-D, D/C GANDHI NAGAR, JAMMU [PAN: AAPPT 5595E] VS. THE DY. CIT, CENTRAL CIRCLE, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY : SH. M. R. BHAGAT RESPONDENT BY: SH. AMAR PAL MEENA (D.R.) DATE OF HEARING: 21.05.2019 DATE OF PRONOUNCEMENT: 28.05.2019 ORDER PER SANJAY ARORA, AM: THIS IS A SET OF TWO APPEALS BY THE ASSESSEE, DIREC TED AGAINST SEPARATE ORDERS BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 5, LUDHIANA ('CIT(A)' FOR SHORT) OF EVEN DATE, I.E., 22.12.2017, DISMISSING T HE ASSESSEES APPEALS IN LIMINE CONTESTING HIS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) AND LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT FOR THE ASSESSMENT YEAR (AY) 2013-14. 2. THE FACTS OF THE CASE IN BOTH THE CASE BEING SIM ILAR, THE TWO WERE TAKEN FOR HEARING TOGETHER AND, ACCORDINGLY, HEARD TOGETHER, AND ARE BEING DISPOSED OF VIDE A COMMON ORDER. ITA NOS. 94 & 95/ASR/2018 (AY 2013-14) ASHWANI SINGH THAKUR V. DY CIT 2 3.1 TO BEGIN WITH, THE OPERATING PART OF THE IMPUGN ED ORDERS, WHICH IS THE SAME FOR BOTH THE APPEALS, I.E., EXCEPT FOR THE DATE/S, READS AS UNDER: 2. AS MENTIONED IN THE ITNS-51 BY THE AO, THE ORDE R/NOTICE OF DEMAND IN THIS CASE WAS SERVED ON THE ASSESSEE ON 15.02.2016 (26.5.2016) AN D THE APPEAL AS PER SECTION 249(2) OF THE I.T. ACT, WAS REQUIRED TO BE FILED WITHIN 30 DA YS OF SERVICE OF NOTICE OF DEMAND. FURTHER AS PER SECTION 249(3), THE APPEAL COULD HAVE BEEN A DMITTED AFTER EXPIRY IF THIS PERIOD OF THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING T HE APPEAL WITHIN THE PRESCRIBED TIME. HOWEVER, IN THE PRESENT CASE NO APPLICATION FOR CON DONATION OF DELAY HAS BEEN FILED ALONG WITH THE APPEAL MEMO EXPLAINING THE REASONS FOR DEL AY. NO SUCH APPLICATION HAS BEEN FILED LATERON ALSO EXPLAINING THE DELAY IN FILING THE APP EAL, EVEN AFTER REPEATED NOTICES SENT BY THIS OFFICE. TO SUM UP, IT IS APPARENT THAT THE ASSESSEE DID NOT FILE THE APPEAL IN TIME AND NO SUFFICIENT CAUSE HAS BEEN SHOWN, THE APPEAL IS THER EFORE, NOT MAINTAINABLE BEING TIME BARRED. HENCE, THIS IS LIABLE TO BE DISMISSED AS NON-MAINTA INABLE. [THE DATE IN BRACKET IS IN RESPECT OF PENALTY AP PEAL] 3.2 THE FACTS LEADING TO THE INSTANT APPEALS, THOUG H BROADLY SIMILAR FOR BOTH THE APPEALS, SHALL BE RECOUNTED, SEPARATELY FOR EACH YE AR. IN RESPECT OF THE APPEAL AGAINST THE LEVY OF PENALTY U/S. 271(1)(B), THE ASS ESSEES CASE, AS SET UP BEFORE ME, IS THAT THE DELAY IN THE FILING THE APPEAL BEFORE T HE LD. CIT(A) WAS OCCASIONED BY THE WRONG FILING OF THE APPEAL IN THE FIRST INSTANC E BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), JAMMU ON 24.6.2016, I.E., IN TIME, UPON RECEIPT OF THE PENALTY ORDER DATED 26.5.2016 ON THAT DATE ITSELF. THE ACKNOWLEDGEMENT OF THE SAID FILING, WHICH IS BY WAY OF E-FILING, FORMS PART OF THE RECORD (PB PG. 7). THIS WAS IN VIEW OF A BONA FIDE BELIEF THAT THE ORDER APPEALED AGAINST BEING PASSE D BY THE JT. CIT, CENTRAL CIRCLE, JAMMU, IT WAS APPEALABLE BEFOR E THE APPELLATE COMMISSIONER AT JAMMU. LATER, ON REALIZING THE MISTAKE, THE APPE AL WAS FILED WITH THE JURISDICTIONAL COMMISSIONER, I.E., THE CIT(A). FURT HER, THE REASON FOR THE DELAYED FILING, I.E., ON 22.08.2016, IS MENTIONED IN FORM 3 5 ITSELF, ADVERTING TO COLUMN 15 THEREOF, I.E., THE COLUMN SPECIFICALLY INQUIRING OF THE REASONS FOR DELAY, IF ANY, IN FILING THE APPEAL (PB PG. 12). THOUGH, THEREFORE, A DMITTEDLY NO APPLICATION FOR THE CONDONATION OF THE DELAY WAS FILED, THE REASON/S FO R THE DELAY IS COMMUNICATED IN ITA NOS. 94 & 95/ASR/2018 (AY 2013-14) ASHWANI SINGH THAKUR V. DY CIT 3 THE APPEAL MEMO ITSELF, AND WHICH ARE ALSO WITHOUT DOUBT GENUINE, SO THAT THE SAME MERITED ACCEPTANCE. THE LD. COUNSEL, SH. BHAGAT, ON BEING ASKED ABOUT THE APPEAL NUMBER (NOT MENTIONED IN THE ACKNOWLEDGEMENT FORM) AS WELL AS THE STATUS OF THE APPEAL FILED BEFORE THE APPELLATE COMMISSIONER AT J AMMU, WOULD STATE THAT THE SAID APPEAL HAS SINCE BEEN TRANSFERRED THEREBY TO T HE OFFICE OF THE LD. CIT(A). 4. THE ASSESSEE HAS PRESENTED THE APPEAL, ALBEIT BE FORE THE NON-JURISDICTIONAL FIRST APPELLATE AUTHORITY, IN TIME. THE REASON APPE ARS GENUINE IN-AS-MUCH AS THE ORDER IMPUGNED IS BY AN AUTHORITY AT JAMMU. NO MALA FIDES COULD UNDER THE CIRCUMSTANCES BE EVEN OTHERWISE ORDINARILY ATTRIBUT ED. IN FACT, THE ASSESSEE HAS, EVEN AS OBSERVED DURING HEARING, ITSELF COMPLICATED MATTERS BY FILING A FRESH APPEAL BEFORE THE JURISDICTIONAL APPELLATE COMMISSIONER, I .E., INSTEAD OF REQUESTING THE NON-JURISDICTIONAL COMMISSIONER TO TRANSFER THE APP EAL, ALREADY FILED IN TIME, TO THE FORMER. THIS, THOUGH, ONLY REFLECTS NAIVETY. AGAIN, THE SAID REASON/S FOR THE DELAY, WHICH IS STATED IN THE APPROPRIATE COLUMN PROVIDED IN THE APPEAL FORM ITSELF, SHOULD NORMALLY BE ACCOMPANIED BY A SWORN AFFIDAVIT. SO, H OWEVER, THE SAME COULD BE CALLED FOR AND, BESIDES, THE APPEAL FORMS ITSELF CO NTAINS VERIFICATION. THE SAID MISTAKE/S CANNOT IN ANY CASE BE REGARDED AS FATAL, SO AS TO DESTROY OR OBLITERATE THE ASSESSEES RIGHT TO APPEAL. IN FACT, THESE ARE, AS APPARENT, NOT AT THE END OF THE ASSESSEE, BUT BY HIS COUNSEL/S, AND WHICH THEREFORE COULD NOT EVEN OTHERWISE CAUSE ANY PREJUDICE TO THE ASSESSEE (REFER: CONCORD OF INDIA INSURANCE CO. LTD. V. NIRMALA DEVI AND ORS. [1979] 118 ITR 507 (SC)). 5. IN VIEW OF THE FOREGOING, THEREFORE, THE MATTER, SETTING ASIDE THE IMPUGNED ORDER, IS RESTORED BACK TO THE FILE OF THE LD. CIT( A) TO CONSIDER THE ASSESSEES APPLICATION FOR CONDONATION OF DELAY ON MERITS, AND PROCEED ACCORDINGLY. HE MAY AT HIS OPTION, SEEK SUCH CLARIFICATION OR SUBSTANTI ATION IN THE MATTER, INCLUDING OR ITA NOS. 94 & 95/ASR/2018 (AY 2013-14) ASHWANI SINGH THAKUR V. DY CIT 4 CAUSING SUCH VERIFICATION AS HE MAY DEEM FIT AND PR OPER FOR THE PURPOSE. THE APPEAL TRANSFERRED TO HIM BY THE APPELLATE COMMISSI ONER AT JAMMU WOULD ALSO NEED TO BE, IN ANY CASE, DISPOSED, AS TWO APPEALS C ANNOT LIE AGAINST ONE ORDER. 6. THE SECOND APPEAL (IN ITA NO. 94/ASR/2018) IS IN RESPECT OF QUANTUM PROCEEDINGS, WHICH HAS AGAIN BEEN DISMISSED AS NOT MAINTAINABLE ON ACCOUNT OF BEING BARRED BY TIME. THE ASSESSEES CASE IS THAT T HE LD. CIT(A) IS WRONG IN STATING THAT NO CONDONATION APPLICATION HAD BEEN FILED, AND TOWARD WHICH HE FURNISHES A COPY OF CONDONATION APPLICATION DATED 28.3.2016, DU LY RECEIPTED ON 08.4.2016, I.E., THE DATE OF THE FILING OF THE APPEAL WITH THE OFFIC E OF THE LD. CIT(A), BY THE SAID OFFICE (PB PG. 10). THE SAME STATES THE DELAY TO BE ON ACCOUNT OF ILL HEALTH, AND IS ACCOMPANIED BY A MEDICAL CERTIFICATE FROM GOVERNMEN T MEDICAL COLLEGE HOSPITAL, JAMMU (PB PG. 11). THE SAME, FURNISHED DURING HEARI NG, IS TAKEN ON RECORD. THE MATTER, ACCORDINGLY, AS IN ITA NO. 95/ASR/2018, IS, SETTING ASIDE THE IMPUGNED ORDER, RESTORED TO THE FILE OF THE LD. CIT(A) FOR A DECISION ON MERITS OF THE ASSESSEES CONDONATION APPLICATION AND, WHERE ADMIT TED, OF THE APPEAL ITSELF. 7. I DECIDE ACCORDINGLY. 8. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN CO URT ON MAY 28, 2019 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 28.05.2019 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: ASHWANI SINGH THAKUR, 61-D, D/C GANDHI NAGAR, JAMMU (2) THE RESPONDENT: THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JAMMU (3) THE CIT(APPEALS)-5, LUDHIANA ITA NOS. 94 & 95/ASR/2018 (AY 2013-14) ASHWANI SINGH THAKUR V. DY CIT 5 (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER