Sri. K.M.Basheer, Pathanamthitta V. ACIT, Kottayam

ITSSA 1/COCH/2010

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8165 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 18-04-2012
• Assessment Year: misc
• Appeal Filed On: 01-02-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.(SS)A. NO.01/COCH/2010 BLOCK PERIOD : 1988-89 TO 1997-98 SHRI K.M. MUHAMMED BASHEER, VELLATHARAYIL HARDWARES, CHITTAR P.O., PATHANAMTHITTA VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI R. SREENIVASAN, CA REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 18 /04/2012 DATE OF PRONOUNCEMENT 01/06/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11-11-2009 PASSED BY THE LD. CIT(A)-IV, KOCHI AND IT RELATES T O THE BLOCK PERIOD FROM 1988-89 TO 1997-98. THE APPEAL IS BARRED BY LIMITATION BY 3 DA YS. THE ASSESSEE HAS MOVED A PETITION PRAYING THAT THE DELAY BE CONDONED. HAVIN G REGARD TO THE SUBMISSIONS MADE IN THE PETITION, WE CONDONE THE DELAY AND ADMIT THE AP PEAL. 2. THE ASSESSEE IS ASSAILING THE DECISION OF THE LD . CIT(A) IN DISMISSING THE APPEAL AS TIME BARRED. 3. THE FACTS RELATING TO THE ISSUE RAISED BEFORE US ARE STATED IN BRIEF. PENALTY ORDER PASSED BY THE AO U/S 158 BFA(2) OF THE ACT WAS SERVE D ON THE ASSESSEE ON 29-03- 2009. BUT THE APPEAL WAS PREFERRED BY THE ASSESSEE BELATEDLY ON 10-07-2009. THOUGH THE ASSESSEE FILED A PETITION SEEKING CONDONATION O F DELAY, THE LD. CIT(A) DID NOT I.T.(SS)A.01/COCH/2010 2 CONDONE THE DELAY ON THE GROUND THAT THE ASSESSEE D ID NOT EXPLAIN THE DELAY UP TO THE DATE OF FILING OF THE APPEAL. ACCORDINGLY, HE DISM ISSED THE APPEAL OF THE ASSESSEE IN LIMINE AS UN-ADMITTED. AGGRIEVED, THE ASSESSEE IS I N APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS SUFFERING FROM CERVICAL DISC PROLAPSE WITH C-RADICULOPATHY FOR THE PAST SEVERAL YEARS AND WAS ADMITTED TO THE HOSPITAL AND LATER DISCHARGED WITH ADVICE OF BED REST. DURING THAT PERIOD, THE PENALTY ORDER WAS SERVED UPON THE ASSESSEE. IN VIE W OF BED REST, HE COULD NOT CONTACT HIS AUDITOR AND FILE APPEAL IN TIME. THOUGH THE EV IDENCES OF MEDICAL TREATMENT WERE FILED BEFORE THE LD. CIT(A), THE FIRST APPELLATE AU THORITY HAS DISMISSED THE APPEAL AS TIME BARRED. THE LD. COUNSEL FOR THE ASSESSEE FURT HER SUBMITTED THAT THE MEDICAL PROBLEM FACED BY THE ASSESSEE IS A PROLONGED ONE WH ICH REQUIRES TREATMENT FOR SEVERAL YEARS. ACCORDINGLY, HE SUBMITTED THAT A LENIENT VI EW SHOULD BE TAKEN ON THE MATTER AND ACCORDINGLY, PRAYED THAT THE DELAY IN FILING THE AP PEAL BEFORE THE LD. CIT(A) BE CONDONED. 5. ON THE CONTRARY, THE LD. DR STOOD BY THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE RECORD. ADMITTEDLY, CERVICAL DISC PROLAPSE IS AN AILMENT, W HICH IS DIFFICULT TO BE CURED AND A PERSON SUFFERING FROM IT HAS TO TAKE MEDICAL TREATM ENT CONTINUOUSLY. THE ASSESSEE HAS PRODUCED EVIDENCES TO SHOW THAT HE WAS TAKING MEDIC AL TREATMENT AT THE RELEVANT POINT OF TIME WHEN THE PENALTY ORDER WAS SERVED UPON HIM. AS STATED EARLIER, THIS AILMENT IS NOT OF THE TYPE THAT COULD BE CURED WITHIN A PARTIC ULAR PERIOD AND THE FACT THAT HE WAS ADVISED BED REST WAS NOT DENIED. SO, TAKING A LENI ENT VIEW OF THE MATTER, WE CONDONE THE DELAY THAT HAS OCCURRED IN FILING THE APPEAL BE FORE THE LD. CIT(A). ACCORDINGLY, WE SET ASIDE HIS ORDER. SINCE THE FIRST APPELLATE AUT HORITY HAS NOT ADJUDICATED THE ISSUE ON MERITS, WE RESTORE THIS APPEAL TO THE FILE OF THE L D. CIT(A) WITH A DIRECTION TO DISPOSE OF THE SAME ON MERITS. I.T.(SS)A.01/COCH/2010 3 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 01-06-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 1ST JUNE, 2012 GJ COPY TO: 1. SHRI K.M. MUHAMMED BASHEER, VELLATHARAYIL HARDWA RES, CHITTAR P.O., PATHANAMTHITTA. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, KOTTAYAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN