M/s Builtech India, Purba Medinipur V. The ITO, Wd-1, Haldia, Purba Medinipur

ITA 990/KOL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3178 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

I.T.A. NO. 990/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 990/KOL/ 2015 ASSESSMENT YEAR: 2010-2011 M/S. BUILTECH INDIA,............................... ...........................APPELLANT NEW MARKET, 1 ST FLOOR, DURGACHAK, HALDIA, PURBA MEDINIPUR-721 602 [PAN : AAFFB 7172 D] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-1, HALDIA, BASUDEBPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR-721 602 APPEARANCES BY: SHRI ANANDA SEN, ADVOCATE, FOR THE ASSESSEE SHRI PRABAL CHOUDHURY, JCIT, SR. D.R., FOR THE DEPA RTMENT DATE OF CONCLUDING THE HEARING : JANUARY 07, 2016 DATE OF PRONOUNCING THE ORDER : FEBRUARY 10, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA DAT ED 07.05.2015 FOR THE ASSESSMENT YEAR 2010-11, WHEREBY HE DISMISSED T HE APPEAL OF THE ASSESSEE TREATING THE SAME AS BARRED BY LIMITATION. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS CARRYING ON THE BUSINESS AS A PAINTING CONTRACTOR F OR DOING PAINTING JOBS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON WAS FILED BY IT ON 29.09.2010 DECLARING TOTAL INCOME OF RS.4,34,032/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 18.03.2013, TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESS ING OFFICER AT RS.10,89,032/- AFTER MAKING ADDITION ON ACCOUNT OF DISALLOWANCE UNDER SECTION 40(A)(IA) AMOUNTING TO RS.4,55,000/- AND BO GUS ADVANCES I.T.A. NO. 990/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 2 OF 5 AMOUNTING TO RS.2,00,000/-. AGAINST THE ORDER OF TH E ASSESSING OFFICER PASSED UNDER SECTION 143(3), AN APPEAL WAS PREFERRE D BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING BOTH THE AD DITIONS MADE BY THE ASSESSING OFFICER THEREIN. SINCE THERE WAS A DELAY OF 93 DAYS IN FILING THE SAID APPEAL, THE APPLICATION SEEKING CONDONATION OF THE SAID DELAY WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). THE LD. CIT(APPEALS), HOWEVER, DID NOT FIND MERIT IN THE SAID APPLICATION AND DECLINING TO CONDONE THE DELAY, HE DISMISSED THE APPEAL OF THE A SSESSEE IN LIMINE TREATING THE SAME AS BARRED BY LIMITATION. AGGRIEVE D BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS A PPEAL BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT IN THE APPLICATION FILED BEFORE THE LD. CIT(APPEALS), THE DELAY ON ITS PART IN FILING THE APPEAL WAS EXPLAINED BY THE ASSESSEE AS UNDER:- 6. THE APPLICANT STATES THAT INITIALLY AFTER RECEI VING THE ORDER DATED 18 TH MARCH, 2013 ON THE VERY SAME DAY, THE APPLICANT WAS GENUINELY CONFUSED IN SEEING THE FATE OF THE CASE. 7. THE APPLICANT THEREAFTER ON 21 ST MARCH, 2013 TOOK THE ORDER TO THE AUTHORIZED REPRESENTATIVE WHO WAS HAND LING THE CASE AT THE STAGE OF ASSESSMENT. 8. ON 21 ST MARCH, 2013 THE LEARNED AUTHORIZED REPRESENTATIVE AT THE MEETING HELD EXPLAINED THAT THE ADDITIONS MA DE WERE DEBATEABLE AND FOR THIS IT WAS QUITE REASONABLE TO CONTEST THE DISALLOWANCES IN APPEAL. 9. HOWEVER, SINCE CONTESTING THE PROCEEDINGS MEANT DRAFTING OF THE APPEAL PAPERS AND THEREAFTER TO ATTEND THE HEAR ING IN KOLKATA, IT WAS PRINCIPALLY DECIDED TO APPOINT SOME PROFESSIONAL BASED AT KOLKATA. 10. TO THAT EFFECT THE AUTHORIZED REPRESENTATIVE TR IED HIS LEVEL BEST TO CONTACT THE CONCERNED ADVOCATE IN KOLKATA A T THE EARLIEST. BUT THE FIRST MEETING WITH THE LEARNED AD VOCATE AT KOLKATA WOULD ONLY BE MADE ON 2ND APRIL, 2013 AS TH E AUTHORIZED REPRESENTATIVE WAS STRUGGLING TO COP UP WITH TIME BARRING CASES AT HIS END. I.T.A. NO. 990/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 3 OF 5 11. ON 2ND APRIL, 2013 CONFERENCE WAS HELD WITH THE LEARNED ADVOCATE AT KOLKATA WHO PERUSED THE PAPERS AND DISC USSED THE MATTER AT LENGTH. 12. THE APPLICANT STATES THAT AS THE POINTS TO BE C ANVASSED IN APPEAL WERE SUBSTANTIALLY CONNECTED WITH FACTS, THE LEARNED ADVOCATE ASKED FOR SOME CLARIFICATIONS, WHICH COULD ONLY BE MADE AVAILABLE ON 4TH APRIL, 2013. 13. THE APPLICANT STATES THAT AS THE LEARNED ADVOCA TE WAS INITIALLY PRE-OCCUPIED ON THE PROFESSIONS FRONT BET WEEN 8 TH TO 10 TH APRIL, AND THERE WAS ILLNESS IN THE FAMILY OF THE LEARNED ADVOCATE INVOLVING OPERATION OF THE LEFT EYE OF THE FATHER OF THE LEARNED ADVOCATE ON 13TH APRIL, 2013, THE LEARNED A DVOCATE COULD NOT ATTEND TO ANY PROFESSIONAL WORK BETWEEN 1 3TH APRIL, 2013 TO 20TH APRIL, 2013 AS THE NATURE OF THE OPERA TION INVOLVED POST OPERATIVE CARE AND ATTENTION. 14. IN BETWEEN LAST DATE FOR FILING OF THE APPEAL E XPIRED ON 16TH APRIL, 2013. 15. IMMEDIATELY THEREAFTER UPON RESUMPTION OF WORK THE LEARNED ADVOCATE DRAFTED THE STATEMENT OF FACTS AND GROUND OF APPEAL ON 26TH APRIL, 2013 AND SEND THE SAME TO THE AUTHORIZED REPRESENTATIVE FOR PERUSAL. 16. THE SAID DRAFT WAS THEREAFTER RETURNED ON 3RD M AY, 2013 WITH CERTAIN COMMENTS. 17. ON 4TH MAY, 2013 THE FATHER OF THE LEARNED ADVO CATE WAS AGAIN OPERATED IN THE RIGHT EYE AND ACCORDINGLY THE LEARNED ADVOCATE COULD NOT ATTEND TO PROFESSIONAL WORK TILL 9TH MAY, 2013. 18. FROM 10 TH MAY, 2013 TILL 17TH MAY, 2013, THE LEARNED ADVOCATE WAS THOROUGHLY OCCUPIED AS THE HIGH COURT WAS TO CLOSE FOR THE SUMMER VACATIONS FROM 18 TH MAY, 2013 AND TO REMAIN CLOSED TILL 2ND JUNE, 2013. FOR THIS REASON THE LEARNED ADVOCATE WAS INSPITE OF MAKING ALL DILIGENT EFFORTS NOT AVAILABLE TO ATTEND TO THE PRESENT MATTER. THEREAFT ER FROM 25TH MAY, 2013 TO 29TH MAY, 2013 THE LEARNED ADVOCATE WA S OUT OF CALCUTTA. THE APPLICANT CRAVES LEAVE TO PRODUCE DOCUMENTARY EVIDENCE IF ANY AT THE TIME OF HEARING OF THE APPLI CATION. 19. ULTIMATELY ON 18TH JULY, 2013 THE APPEAL PAPERS INCLUDING FORM NO. 35 ALONG WITH CHALLAN AND OTHER ANNEXURE W ERE MADE I.T.A. NO. 990/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 4 OF 5 READY AND FILED ON 18TH JULY, 2013, OCCASIONING A D ELAY OF 93 DAYS. THE ABOVE EXPLANATION OFFERED BY THE ASSESSEE FOR D ELAY IN FILING THE APPEAL, HOWEVER, WAS NOT ACCEPTED BY THE LD. CIT(AP PEALS) ON THE GROUND THAT THE REASONS GIVEN BY THE ASSESSEE WERE NOT BEY OND ITS CONTROL AND THE SAME WERE NOT GENUINE, WHICH PREVENTED THE ASSE SSEE FROM FILING THE APPEAL IN TIME. HE ALSO OBSERVED THAT THE ASSESSEE COULD HAVE ENGAGED OTHER LAWYER IN ORDER TO ENSURE THE FILING OF APPEA L IN TIME. I AM UNABLE TO SUBSCRIBE TO THIS VIEW TAKEN BY THE LD. CIT(APPE ALS). IN MY OPINION, THE REASONS GIVEN BY THE ASSESESE FOR DELAY ON ITS PART IN FILING THE APPEAL BEFORE THE LD. CIT(APPEALS) WERE BEYOND ITS CONTROL AND THE SAME WERE SUFFICIENT TO EXPLAIN THE DELAY OF ONLY 93 DAYS ON ITS PART IN FILING THE APPEAL BEFORE THE LD. CIT(APPEALS). IN THAT VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) AN D REMIT THE MATTER BACK TO HIM WITH A DIRECTION TO DISPOSE OF THE APPE AL OF THE ASSESSEE ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIE NT OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 10, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 10 TH DAY OF FEBRUARY, 2016 COPIES TO : (1) M/S. BUILTECH INDIA, NEW MARKET, 1 ST FLOOR, DURGACHAK, HALDIA, PURBA MEDINIPUR-721 602 (2) INCOME TAX OFFICER, WARD-1, HALDIA, BASUDEBPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR-721 602 I.T.A. NO. 990/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 5 OF 5 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-7, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.