Shri Chetan Seth, New Delhi V. ITO, New Delhi

ITA 999/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6647 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2017
• Court: TRIBUNAL

Judgement Text

ITA NO. 999/DEL/2017 ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT M EMBER ITA NO. 999/DEL/2017 ASSESSMENT YEAR: 2009-10 SHRI CHETAN SETH, PLOT NO. 14, LCS, SECTOR B-1, VASANT KUNJ, NEW DELHI-110070 VS INCOME TAX OFFICER, WARD-15(3), NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY: SHRI VIBHU GUPTA, CA MS DEEPASHREE RAO, CA DEPARTMENT BY: SHRI G. JOHNSON, SR. DR DATE OF HEARING : 31.07.2019 DATE OF PRONOUNCEMENT : 31.07.2019 O R D E R PER SUDHANSHU SRIVASTAVA, JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A)-36, NEW DELHI DATED 28.12.2016 AND PERTAINS TO ASSESSMENT YEAR 20 09-10. 2.0 AT THE OUTSET, THE LD. AR SUBMITTED THAT THE APPEAL OF THE ASSESSEE HAD BEEN DISMISSED BY THE LD. COMMISSIONER OF INCOME TAX(A) IN LIMINE WITHOUT ADJUDICATING THE APPEAL ON MERITS AND WITHOUT CONDONING THE DELAY WHICH HAD OCCURRED DUE TO UNAVOIDABLE CIRCUMSTANCES AT THE TIME OF FILING OF THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY. THE LD. AR SUBMITTED ITA NO. 999/DEL/2017 ASSESSMENT YEAR 2009-10 THAT THE APPEAL BEFORE THE LD. COMMISSIONER OF INCO ME TAX(A) WAS DELAYED BY 1265 DAYS FOR THE REASON THAT MR. AMITAB H LUMBA, AN EMPLOYEE OF THE ASSESSEE, WHO WAS WORKING IN THE CA PACITY OF ASSISTANT MANAGER AND WHO USED TO LOOK AFTER THE IN COME TAX MATTERS OF THE ASSESSEE, WAS SUFFERING FROM PROLONG ED ILLNESS RIGHT FROM THE YEAR 2011 DUE TO WHICH HE WAS REPEATEDLY B EING ADMITTED TO THE HOSPITAL FOR TREATMENT. IT WAS SUB MITTED THAT DUE TO THIS, THE FILING OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY GOT INORDINATELY DELAYED. IT WAS SUBMITTED THAT MR . AMITABH LUMBA SUBSEQUENTLY PASSED AWAY ON 3.12.2013 AND THE RELEVANT PAPERS REMAINED IN THE FILE OF THE EMPLOYEE AND COU LD BE TRACED ONLY AT A LATER DATE. THE LD. AR SUBMITTED THAT TH E ASSESSEE HAD NO REASON TO DELAY THE FILING OF THE APPEAL AS HIS VALUABLE RIGHT WOULD HAVE BEEN AFFECTED. IT WAS ALSO SUBMITTED TH AT THE REASONS AS AFORESAID WERE BEYOND THE CONTROL OF THE ASSESSE E AND, THEREFORE, THE LD. COMMISSIONER OF INCOME TAX(A) SH OULD HAVE CONDONED THE DELAY AND ADJUDICATED THE APPEAL ON TH E MERITS OF THE CASE. THE LD. AR ALSO FILED AN AFFIDAVIT IN TH IS REGARD NARRATING THE EVENTS AS AFOREMENTIONED. 2.1 LD. SR. DR JUSTIFIED THE ACTION OF THE LD. CO MMISSIONER OF INCOME TAX(A) IN NOT CONDONING THE APPEAL. ITA NO. 999/DEL/2017 ASSESSMENT YEAR 2009-10 2.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE CIRCU MSTANCES AS NARRATED BY THE LD. AR WHICH HAVE ALSO BEEN INCORPO RATED BY THE LD. COMMISSIONER OF INCOME TAX(A) IN THE IMPUGNED O RDER, IT IS OUR CONSIDERED OPINION THAT THE ASSESSEE HAD A BONAFIDE CASE FOR NOT FILING THE APPEAL BEFORE THE LD. COMMISSIONER O F INCOME TAX(A) IN TIME. WE ALSO NOTE THAT THE ASSESSEE WOULD NOT HAVE GAINED IN ANY MANNER WHATSOEVER BY DELAYING THE FILING OF APP EAL. WE ALSO FEEL THAT THE LD. COMMISSIONER OF INCOME TAX(A) SHO ULD HAVE CONDONED THE DELAY IN THE INTEREST OF SUBSTANTIAL J USTICE. ACCORDINGLY, WE RESTORE THE APPEAL TO THE FILE OF T HE LD. COMMISSIONER OF INCOME TAX(A) WITH A DIRECTION TO C ONDONE THE DELAY, ADMIT THE APPEAL AND DECIDE IN ACCORDANCE WI TH LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE TO PRESENT I TS CASE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2019. (O.P. KANT) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: JULY, 2019 GS ITA NO. 999/DEL/2017 ASSESSMENT YEAR 2009-10 COPY FORWARDED TO: - 1) APPELLANT 2) RESPONDENT 3) CIT(A) 4) CIT 5) DR BY ORDER ASSTT. REGISTRAR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER