Smt Channabasavamma , Mysore V. Income TAx Officer Ward-1(1), Mysore

ITA 981/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2619 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH C BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K GARODIA, ACCOUNTANT MEMBER ITA NO.981/BANG/2018 (ASST. YEAR - 2006-07) SMT. CHENNABASAVAMMA, BHUGATHAGALLY VILLAGE, VARUNA HOBLI, MYSORE TALUK, MYSORE DISTRICT. . APPELLANT PAN AREPC5778J. VS. THE INCOME-TAX OFFICER, WARD-1(1), MYSORE. . RESPONDENT APPELLANT BY : SHRI S.V RAVISHANKAR, ADVOCATE RESPONDENT BY : DR. P.V PRADEEP KUMAR, CIT DATE OF HEARING : 25-09-2018 DATE OF PRONOUNCEMENT : 05-10-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(A) INTER ALIA ON FOLLOWING GROUNDS. ITA NO.981/B/18 2 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR A S THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AN D CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN REFUSING TO CONDONE THE DELAY IN FILING THE APPEAL ON THE GROUN D THAT THE DELAY IN FILING THE APPEAL WAS UNWARRANTED AND THE REASONS ADDUCED FOR THE DELAY OF 47 DAYS AR E 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 TH AT THE DELAY IN FILING THE APPEAL AGAINST THE ORDER U/ S. 271[1][C] OF THE ACT WAS OCCASIONED ON ACCOUNT OF T HE EFFORTS BEING TAKEN BY THE APPELLANT TO OBTAIN THE CERTIFIED COPY OF THE ASSESSMENT ORDER PASSED EARLI ER TO UNDERSTAND THE SAME SINCE THE IMPUGNED PENALTY WAS IMPOSED ON THAT BASIS AND THE APPELLANT HAD SUBSTANTIATED THE EXPLANATION TENDERED BY FILING CO PY OF THE LETTER DATED 14/11/2014 SEEKING INSPECTION O F RECORDS AND CERTIFIED COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE, WHICH WAS REQUIRED TO FILE AN APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER AND HENCE, TH ERE 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, H E 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 TH E CIRCUMSTANCES OF THE APPELLANT'S CASE. ITA NO.981/B/18 3 4. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE PENALTY OF RS. 36,645/- LEVIED U/S. 271[1][C] O F THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 5. THE LEARNED CIT[A] FAILED TO APPRECIATE THAT THE APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPE CT 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 LEVI ED 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 PAR T OF THE COSTS. 2 DURING THE COURSE OF HEARING, THE LD COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER OF THE CIT(A) WI TH THE SUBMISSION THAT THE CIT(A) HAS DISPOSED OFF THE APPEAL WITHOUT AFF ORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER CON TENDED THAT THERE WAS A DELAY OF 47 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A) AND FOR CONDONATION OF DELAY, APPLICATION WAS FILED AND TH E CIT(A) DID NOT CONSIDER THE SAME AND DISMISSED THE APPEAL BEING BA RRED BY LIMITATION. ITA NO.981/B/18 4 3. APPLICATION FOR CONDOATION OF DELAY IS ALSO PLAC ED BEFORE US FOR PERUSAL. 4. THE LD DR ON THE OTHER HAND PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A ), IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE CIT(A) H AS DECIDED THE APPEAL EX-PARTE WITHOUT AFFORDING OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. UNDISPUTEDLY THERE WAS A DELAY OF 47 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A) BUT THE DELAY WAS NOT CONDONED THOUGH TH E ASSESSEE HAS EXPLAINED THE REASONS FOR THE DELAY. 5. WE HAVE CAREFULLY EXAMINED THE APPLICATION FOR C ONDONATION OF DELAY AND FIND THAT THE ASSESSEE HAS FULLY EXPLAINE D THE DELAY IN FILING OF THE APPEAL. ACCORDINGLY, WE CONDONE THE DELAY IN F ILING OF THE APPEAL. SINCE THE CIT(A) HAS DISMISSED THE APPEAL OF THE AS SESSEE EX-ARTE ON THE POINT OF LIMITATION ALONE, WE SET ASIDE THE ORD ER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION T O ADJUDICATE THE ISSUE ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.981/B/18 5 ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCT, 2018 . SD/- SD/- (A.K GARODIA) (SUNI L KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE DATED : 05/10/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REG ISTRAR, ITAT, BANGALORE . ITA NO.981/B/18 6 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR. P. S ... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT.. 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..