Shri K.Mehfuz Ali Khan , Guntakal V. Deputy Commissioner of Income Tax Central circle-1(3), Bangalore

ITA 965/BANG/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3777 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: MAYANK JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Set aside

Judgement Text

ITA NO.965 /BANG/2017 SHRI MEHFUZ ALI KHAN, PARTNER M/S. DEVI ENTERPRISES, A.P. IN THE INCOME TAX APPELLATE TRIBUNAL CBENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.965/BANG/2017 ASSESSMENT YEAR : 2011-12 M/S. DEVI ENTERPRISES, SHRI K MEHFUZ ALI KHAN, PARTNER NO.1050/H, RAILWAY GRAND TWINLANCE TIMMANCHERLA GUNTAKAL, A.P.515 801 PAN NO :AAQFM5466J VS. DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1(3) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI MAYANK JAIN, A.R. RESPONDENT BY : SMT. R. PREMI, D.R. DATE OF HEARING : 05.11.2020 DATE OF PRONOUNCEMENT : 06.11.2020 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST TH E COMMON ORDER DATED 20.1.2017 PASSED BY LD. CIT(A)-1 1, BENGALURU AND IT RELATES TO THE ASSESSMENT YEAR 2011-12. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN DISMISSI NG THE APPEAL OF THE ASSESSEE IN LIMINI WITHOUT CONDONING THE DELAY IN FILING THE APPEAL BEFORE HIM. THIS APPEAL RELATE TO QUANTUM A SSESSMENT PROCEEDINGS. ITA NO.965 /BANG/2017 SHRI MEHFUZ ALI KHAN, PARTNER M/S. DEVI ENTERPRISES, A.P. PAGE 2 OF 4 2. WE NOTICE THAT THE APPEAL CAME TO BE FILED BEFOR E TRIBUNAL AFTER A DELAY OF 25 DAYS. THE ASSESSEE HAS FILED A PETITION PRAYING THE BENCH TO CONDONE THE DELAY. IT IS STATED IN TH E PETITION THAT THE DELAY HAS HAPPENED DUE TO TERMITE CLEANING WORK UND ERTAKEN IN THE OFFICE OF THE COUNSEL OF THE ASSESSEE. WE HEARD LD . D.R. ON THIS PRELIMINARY ISSUE. HAVING REGARD TO THE SUBMISSION S MADE BY THE ASSESSEE IN THE PETITION, WE ARE OF THE VIEW THAT T HERE WAS REASONABLE CAUSE FOR THE DELAY AND THE SAME DESERVE S TO BE CONDONED. ACCORDINGLY WE CONDONE THE DELAY IN FILI NG APPEAL BEFORE THE TRIBUNAL AND ADMIT THE APPEAL FOR HEARING. 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE APPEAL CAME TO BE FILED BEFORE LD. CIT(A) AFTER A DELAY OF MORE THAN 21 MONTHS. THOUGH THE ASSESSEE HAS FURNISHED A PETITION PRAYING FOR CONDONING THE DELAY, THE REASONS GIVEN BY THE ASSESSEE WERE NOT ACCEPTED BY LD. CIT(A) TO BE REASONABLE AN D ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WITH OUT ADMITTING IT. FURTHER, ON A PERUSAL OF ORDER PASSED BY LD. CIT(A) , WE NOTICE THAT THE ASSESSEE WAS NOT REPRESENTED BEFORE LD. CIT(A), EVEN THOUGH THE FIRST APPELLATE AUTHORITY HAS POSTED THE CASES FOR HEARING ON THREE OCCASIONS. 4. THE LD. A.R. SUBMITTED THAT THE PARTNERS OF THE ASSESSEE FIRM WERE FACING SEVERAL LEGAL ISSUES AND HENCE THEY COU LD NOT APPEAR BEFORE LD. CIT(A). HE SUBMITTED THAT THE LD CIT(A) HAS PASSED THE IMPUGNED ORDERS EX-PARTE, WITHOUT HEARING THE ASSES SEE. 5. WE NOTICE THAT THE LD CIT(A) HAS PASSED THE O RDER WITHOUT HEARING THE ASSESSEE, SINCE THE ASSESSEE DID NOT AP PEAR BEFORE HIM, EVEN THOUGH THREE OPPORTUNITIES WERE GIVEN. HOWEVER , THE PRINCIPLES OF NATURAL JUSTICE WARRANT THAT NO ONE SHOULD BE CO NDEMNED ITA NO.965 /BANG/2017 SHRI MEHFUZ ALI KHAN, PARTNER M/S. DEVI ENTERPRISES, A.P. PAGE 3 OF 4 UNHEARD. IN THE INSTANT CASE, WE NOTICE THAT THE L D. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WITH OUT CONDONING THE DELAY IN FILING APPEAL AND ALSO WITHOUT HEARING THE ASSESSEE. HENCE THERE WAS NO OCCASION FOR THE LD. CIT(A) TO P ASS THE ORDERS ON MERITS. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE SHOULD BE PROVIDED WITH ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT (A). IN OUR VIEW, AFFORDING ONE MORE OPPORTUNITY TO THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WOULD PROMOTE CAUSE OF J USTICE. 6. SINCE THE ASSESSEE HAS NOT APPEARED BEFORE LD. CIT(A) DESPITE GIVING 3 OPPORTUNITIES, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE IMPOSED A COST FOR ITS DELINQUENCY. ACCORDINGLY , WE IMPOSE A COST OF RS.2,000/- (RS. TWO THOUSAND ONLY) UPON THE ASSESSEE, WHICH SHALL BE PAID BY THE ASSESSEE TO THE CREDIT OF THE INCOME TAX DEPARTMENT AS OTHER FEES WITHIN TWO MONTHS FROM T HE DATE OF RECEIPT OF THIS ORDER. 7. SUBJECT TO THE PAYMENT OF ABOVE SAID COST OF RS. 2,000/- AS STATED ABOVE, WE SET ASIDE THE IMPUGNED ORDER PASSE D BY LD. CIT(A) FOR ASSESSMENT YEAR 2011-12 UNDER CONSIDERATION AND RESTORE ALL THE ISSUES INCLUDING THE ISSUE OF DELAY IN FILING A PPEAL BEFORE HIM, TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER AFFORD ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALS O DIRECT THE ASSESSEE TO EXTEND FULL COOPERATION TO LD. CIT(A) F OR EXPEDITIOUS DISPOSAL OF THE APPEAL. ITA NO.965 /BANG/2017 SHRI MEHFUZ ALI KHAN, PARTNER M/S. DEVI ENTERPRISES, A.P. PAGE 4 OF 4 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH NOV, 2020 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 6 TH NOV, 2020. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.