Shri Ajit B Thakker, Kheda V. The Income Tax Officer, Nadiad

ITA 964/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0479 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-11-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 01-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: M J SHAH
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.964/AHD/2009 ASSESSMENT YEAR:2003-04 DATE OF HEARING:4.11.09 DRAFTED:6.11.09 SHRI AJIT B THAKKAR, PROP. OF SAHJANAND ENTERPRISE, C/O. MADHAV RICE MILL, MALAVADA CHOKDI, LIMBASI, DIST. KHEDA, PAN NO.ADMPT0478N V/S . INCOME TAX OFFICER, WARD-, NADIAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M.J. SHAH, AR RESPONDENT BY:- SHRI C.K. MISHRA, SR. DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV, BARODA IN APPEAL NO.CAB/IV -N-87/08-09 DATED 29-01- 2009. THE ASSESSMENT WAS FRAMED BY THE ITO WARD-3, NADIAD U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 25-02- 2005 FOR THE ASSESSMENT YEAR 2003-04. THE PENALTY UNDER DISPUTE WAS LEVIED BY THE ITO, WARD-3, NADIAD U/S.271(1)(C) OF THE ACT VIDE H IS ORDER DATED 18-02-2008. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN NOT CONDONING THE DELAY AND NOT ADMITTING THE APPEA L. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.1-3 :- 1. THE C.I.T.(APPEALS) ERRED IN NOT APPRECIATING T HE GENUINE REASONS FOR DELAY IN FILING THE APPEAL BEFORE HIM AND IN THE PR OCESS ERRED IN NOT ADMITTING THE APPEAL OF THE ASSESSEE. 2. THE C.I.T.(APPEALS) OUGHT TO HAVE DECIDED THE AP PEAL OF THE ASSESSEE ON MERITS AFTER CONDONING THE GENUINE DELAY. ITA NO.964/AHD/2009 A.Y. 2003-04 SH AJIT B THAKKAR V. ITO WD-3, NADIAD PAGE 2 3. THE C.I.T.(APPEALS) ERRED IN DIRECTLY CONFIRMING THE PENALTY UNDER SEC. 271(1)(C) BY NOT ADMITTING THE APPEAL OF THE ASSESSEE ON THE PRETEXT THAT THERE WAS NO SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THE PRESCRIBED PERIOD UNDER SEC. 249(2). 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE STATE D THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT ADMITTING THE SAME AS THE ASSESSEE H AS FILED REASONS FOR CONDONATION OF DELAY. WE FIND FROM THE ORDER OF CIT(A) THAT THE A PPEAL HAS BEEN DISMISSED BY GIVING FOLLOWING FINDING IN PARA-2 OF HIS APPELLATE ORDER:- IN THIS CASE, THE APPEAL HAS BEEN FILED LATE, I.E. ON 28.11.2008 AS AGAINST THE DUE DATE IN THE MONTH OF APRIL, 2008. THE ONLY REASON G IVEN FOR LATE FILING IS TAT THE PAPERS RECEIVED FROM THE ASSESSING OFFICER WERE MISPLACED AND CAME TO NOTICE WHEN THE ASSESSING OFFICER ASKED FOR PAYMENT OF PENALTY. SUB SEQUENTLY ON SEARCH, IT WAS FOUND THAT THE PENALTY ORDER WAS RECEIVED ON 31.3.2 008. APPELLANT HAS REQUESTED FOR CONDONATION OF DELAY. THE REASON FOR THE DELAY IS N OT SUBSTANTIATED WITH ANY EVIDENCE. I AM THEREFORE, NOT SATISFIED THAT THE AP PELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PRESCRIBED PERIOD U/S.249(2). THE APPEAL IS THEREFORE, NOT ADMITTED. NOW, LD. COUNSEL FOR THE ASSESSEE, SHRI M.J. SHAH C ATEGORICALLY STATED THAT HE IS READY TO FILE THE EVIDENCES BEFORE THE CIT(A) SUPPORTED BY A N AFFIDAVIT OF THE ASSESSEE. LD. DEPARTMENTAL REPRESENTATIVE HAS NOT OBJECTED TO THE SAME. 4. IN VIEW OF THE ABOVE FACTS AND IN THE INTEREST O F NATURAL JUSTICE, WE WANT TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO FILE EVIDEN CES REGARDING HIS REASONABLE CAUSE FOR DELAY. ACCORDINGLY, WE SET ASIDE THIS APPEAL TO THE FILE OF CIT(A). THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES. 5. IN THE RESULT, ASSESSEEA APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON13/11/2009 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SING H) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 13/11/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- IV, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD