Sri Manjunath , Mysore V. The Income Tax Officer Ward-1(1), Mysore

ITA 944/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2246 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K N DHANDA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 944 /BANG/201 8 ASSESSMENT YEAR : 20 0 6 - 0 7 SHRI MANJUNATH, BHUGATHAGALLY VILLAGE, VARUNA HOBLI, MYSORE TALUK, MYSORE DISTRICT. PAN: CLGPM9600R VS. THE INCOME TAX OFFICER, WARD 1 [1], MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE RE VENUE BY : SHRI K.N. DHANDAPANI, JCIT (DR) DATE OF HEARING : 1 3 .0 6 .201 9 DATE OF PRONOUNCEMENT : 21 .0 6 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE EX-PARTE ORDER OF LD. CIT(A), MYSORE DATED 31.10.2017 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN REFUSING TO CONDONE THE DELAY IN FILING THE APPEAL ON THE GROUND THAT THE DELAY IN FILING THE APPEAL WAS UNWARRANTED AND THE REASONS ADDUCED FOR THE DELAY OF 47 DAYS ARE FOUND TO BE FALSE UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 2.1 THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THAT THE DELAY IN FILING THE APPEAL AGAINST THE ORDER U/S. 271[1][C] OF THE ACT WAS OCCASIONED ON ACCOUNT OF THE EFFORTS BEING TAKEN BY THE APPELLANT TO OBTAIN THE CERTIFIED COPY OF THE ASSESSMENT ORDER PASSED EARLIER TO UNDERSTAND THE SAME SINCE THE IMPUGNED PENALTY WAS IMPOSED ON THAT BASIS AND THE APPELLANT HAD SUBSTANTIATED THE EXPLANATION TENDERED BY FILING COPY OF THE LETTER DATED 14/11/2014 SEEKING INSPECTION OF RECORDS AND CERTIFIED COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE, WHICH ITA NO. 944/BANG/2018 PAGE 2 OF 3 WAS REQUIRED TO FILE AN APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER AND HENCE, THERE WAS NO FALSITY IN THE EXPLANATION TENDERED BY THE APPELLANT FOR THE DELAY IN FILING THE APPEAL AS ERRONEOUSLY HELD BY THE LEARNED CIT[A] AND HENCE, HE OUGHT TO HAVE CONDONED THE DELAY AND ADMITTED THE APPEAL INSTEAD OF REJECTED THE SAME IN LIMINE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN DISPOSING OFF THE APPEAL WITHOUT ALLOWING SUFFICIENT AND REAL OPPORTUNITY TO THE APPELLANT TO REPRESENT HER CASE BEFORE THE LEARNED CIT[A] UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE PENALTY OF RS.1,09,620/- LEVIED U/S. 271[1][C] OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. THE LEARNED CIT[A] FAILED TO APPRECIATE THAT THE APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE ADDITION MADE TO WARRANT LEVY OF PENALTY AND THEREFORE, THE PENALTY LEVIED U/S.271 [1][C] OF THE ACT REQUIRES TO BE CANCELLED. 6. WITHOUT PREJUDICE TO THE ABOVE, THE PENALTY LEVIED IS HIGHLY EXCESSIVE AND LIABLE TO BE REDUCED SUBSTANTIALLY. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 3. IN COURSE OF HEARING OF THE APPEAL, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS PER THE ORDER OF CIT(A), ONLY ONE DATE OF HEARING WAS FIXED ON 19.09.2017 AND AS PER PARA NO. 3 OF THE ORDER OF CIT(A), IT IS NOTED BY HIM THAT THERE WAS A DELAY OF 47 DAYS IN FILING THE APPEAL AND ALTHOUGH THE ASSESSEE HAS FILED APPLICATION BEFORE CIT(A) SEEKING CONDONATION OF DELAY, THE DELAY WAS NOT CONDONED BY THE CIT(A) AND HENCE, THE APPEAL OF THE ASSESSEE WAS DISMISSED AS UNADMITTED. HE SUBMITTED THAT IN THE FACTS OF PRESENT CASE, THE ASSESSEE HAS EXPLAINED THE REASONS FOR DELAY IN FILING THE APPEAL STATING THAT THE DELAY WAS CAUSED AS A RESULT OF THE AO DENIAL TO PERMIT THE INSPECTION OF RECORDS BY THE ASSESSEES ADVOCATE. IN OUR CONSIDERED OPINION, IN THE FACTS OF PRESENT CASE, THE DELAY OF 47 DAYS SHOULD HAVE BEEN CONDONED BY CIT(A) AND SINCE, THIS WAS NOT CONDONED BY HIM, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE CIT(A) AND SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR DECISION ON MERIT AFTER PROVIDING ITA NO. 944/BANG/2018 PAGE 3 OF 3 ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. WE ORDER ACCORDINGLY. IN VIEW OF ABOVE DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST JUNE, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.