M/s Mrs. Evelyse Godinho., Goa V. The Deputy Commissioner of Income Tax, Central Circle, Panaji., Panaji

ITSSA 2/PAN/2016

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2079 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 15-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MEHBOOB ALI KHAN
• Assessee Lawyers: KISHOR M BANDEKAR
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER IT (SS) A NO S . 01 & 02 /P A N/201 6 (ASST. YEAR : 200 7 - 0 8 ) 1) M/S. MR. WILSON GODINHO, 1 ST FLOOR, PLOT NO.13, SHIVNERI KAVITHA CO - OP HOUSING SOCIETY, CARANZALEM GOA. VS. D CIT, CENTRAL CIRCLE, PANAJI - GOA PAN NO. AENPG 882 5 Q 2) M/S. MRS. EVELYSE GODINHO, 1 ST FLOOR, PLOT NO.13, SHIVNERI KAVITHA CO - OP HOUSING SOCIETY, CARANZALEM GOA. PAN NO. AENPG 8826 T (APPELLANT S ) (RESPONDENT) ASSESSEE BY : SHRI KISHOR M. BANDEKAR C A DEPARTMENT BY : SHRI K. MEHBOOB ALI KHAN - D R DATE OF HEARING : 2 8 / 0 4 /201 6 . DATE OF PRONOUNCEMENT : 28 / 0 4 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THESE ARE TWO APPEALS FILED BY THE ASSESSEES, WHO ARE HUSBAND AND WIFE, AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) - VI, BANGALORE IN ITA NOS. 109 & 110/DCIT/CC, PANAJI/CIT(A) - VI/BNG/2011 - 12 , DATED 16/01/2012 FOR THE ASSESSMENT YEAR 2007 - 08 . 2 IT (SS) A NO. 0 1 & 0 2 /P A N/201 6 2. SHRI KISHOR M. BANDEKAR, CA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. MEHBOOB ALI KHAN, DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF THE REVENUE. 3 . THE APPEALS FILED BY THE ASSESSEE ARE DELAYED BY 1021 DAYS, FOR WHICH THE ASSESSEE FILED AN AFFIDAVIT FOR CONDONATION OF DELAY AND CHARTERED ACCOUNTANT OF THE ASSESSEE ALSO FILED AN AFFIDAVIT. THE CHARTERED ACCOUNTANT OF THE ASSESSEE HAS SPECIFICALLY CONFIRMED THAT THE DELAY WAS ON ACCOUNT OF HIS PERSONAL DIFFICULTIES AND URGENT WORK COMMITMENTS , AND THAT , HE COULD NOT PURSUE THE INCOME TAX WORK OF THE ASSESSEE FURTHER. A S THE CHARTERED ACCOUNTANT OF THE ASSESSEE HAS ALSO FILED THE NECESSARY AFFIDAVIT FOR DELAY ON HIS PART , THE SAME CANNOT BE MADE ATTRIBUTABLE FOR AS A DEFAULT ON THE PART OF THE ASSESSEE . IN THESE CIRCUMSTANCES , WE ARE OF THE VIEW THAT THE DELAY IS LIABLE TO BE CONDONED AND WE DO SO , AND THE APPEALS OF THE ASSESSEE S ARE HEARD ON MERITS. 4 . IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THERE WAS A SEARCH IN THE CASE OF ASSESSEES ON 09/10/2009 . THE ASSESSEE S HAD FILED THEIR RETURNS IN RESPONSE TO THE NOTICE UNDER SEC. 153C DISCLOSING AN INCOME OF 1,82,73,530/ - EACH. IT WAS THE SUBMISSION THAT WHEN FILING THE RETURN OF INCOME, THE ASSESSEES HAD NOT PAID THE TAX ON THE RETURNED INCOME IN ITS ENTIRETY. THE ASSESSING OFFICER HAD MADE THE ADDITION OF 10,25,000/ - IN EACH OF THEIR HANDS , AGAINST WHICH , THE ASSESSEES FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). IT WAS THE SUBMISSION THAT BEFORE THE DECISION OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON 29/01/2013, THE ASSESSEES HAD PAID THE TAXES ON THE RETURNED INCOME. IT WAS THE SUBMISSIONS THAT THE TAXES ON THE RETURNED INCOME WAS TO THE EXTENT OF 60,89,000/ - . THE ASSESSEE S HAD PAID TAXES OF NEARLY 94 LAC EACH BY 31/03/2012 . IT WAS THE SUBMI SSION THAT THE CHALLANS OF THE PAYMENTS OF THE TAXES HAD INADVERTENTLY NOT BEEN PRODUCED BEFORE 3 IT (SS) A NO. 0 1 & 0 2 /P A N/201 6 THE COMMISSIONER OF INCOME TAX (APPEALS). IT WAS THE SUBMISSION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAD DISMISSED THE ASSESSEES APPEAL S BY APPLYING THE PROVISIONS OF SEC. 249(4)(A) ON THE GROUND THAT THE APPEAL S COULD NOT BE ADMITTED UNLESS AT THE TIME OF FILING OF THE APPEAL S , WHERE RETURN HAS BEEN FILED BY THE ASSESSEE S , T HE ASSESSEE HAD PAID TAXES DUE ON THE INCOME RETURNED BY HIM. IT WAS THE SUBMISSION THAT MUCH BEFORE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAD PAID TAXES AND IN EXCESS ALSO . IT WAS THE PRAYER THAT IN VIEW OF THE DECISION OF THE CO O RDINATE BENCH OF THIS TRIBUNAL, MUMBAI BENCHES, IN THE CAS E OF SHANKARLAL P. MALI AND OTHERS IN ITA NOS. 1443 - 1448/MUM/2013 , DATED 30/06/201 5 , AS ALSO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF D. KOMALAKSHI (192 ITR 99) , THE APPEALS OF TH E ASSESSEE S MAY BE DIRECTED TO BE ADMITTED AND DISPOSED OF ON MERITS BY THE COMMISSIONER OF INCOME TAX (APPEALS). 5. IN REPLY , DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) . 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT WAS NOTICED THAT THE ASSESSEE HAS PAID TAXES ON HIS RETURNED INCOME MUCH BEFORE THE DATE OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), IN VIEW OF THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF D. KOMALAKSHI (SUPRA) , THE DEFECT IN FILING OF THE APPEAL INSOFAR AS THE TAX ON RETURNED INCOME WAS NOT PAID , HAVE BEEN REMOVED BY THE ASSESSEE BEFORE THE DISPOSAL OF THE APPEAL BY THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT NOT TO HAVE DISMISS ED THE APPEALS AS UN - ADMITTED BY INVOKING THE PROVISIONS OF SEC. 249(4) OF THE ACT , INSTEAD THE REMOVAL OF THE DEFECT BY THE ASSESSEE SHOULD HAVE BEEN RECOGNIZED AND THE APPEAL FILED BY TH E ASSESSEE SHOULD H A VE BEEN DETERMINED ON ITS MERITS. IN THESE CIRCUMSTA N CES AND ON THE FACTS , WE HEREBY SET ASIDE THE ORDER S OF THE 4 IT (SS) A NO. 0 1 & 0 2 /P A N/201 6 COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORE THE APPEAL S BACK TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION ON MERITS. THE COMMISSIONER OF INCOME TAX (APPEALS) SHALL ADJUDICATE THE APPEAL S OF THE ASSESSEE S ON MERITS AFTER GRANTING THE ASSESSEE S ADEQUATE OPPORTUNITY OF BEING HEARD. 7 . IN THE RESULT, APPEAL S OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON THURSDAY , THE 2 8 TH DAY OF APRIL , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 TH APRIL, 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI .