Shri Ashok R. Gupta, Baroda V. The ACIT., Cent.Circle-2, Baroda

ITSSA 21/AHD/2006

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8675 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 30-12-2010
• Assessment Year: misc
• Appeal Filed On: 25-01-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SR MALIK

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI MUKUL KUMAR SHRAWAT, JM AND D.C.AGRAW AL, AM SHRI ASHOK R. GUPTA, 26-A, ABHAY BUNGLOW, NEAR BMC WARD OFFICE, OLD PADDRA ROAD, BARODA. VS. THE ASSTT. C.I.T., CEN. CIR.2, BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SMT. URVASHI SHODHAN, AR RESPONDENT BY:- SHRI S. R. MALIK, DR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) WHEREIN HE HAS DECLINED TO ADMIT THE APPEAL BEFORE HIM ON THE GROUND THAT ASSESSEE HAS NOT PAID THE TAXES ON THE RETURNED INCOME. THE LD. CIT(A) IN THIS REGARD OBSERVED AS UNDER :- 3. IT IS SEEN THAT ALONG WITH THE APPEAL MEMO, THE APPELLANT HAS FILED A LETTER DATED 27.07.2005 WHEREIN INTERALIA, THE AP PELLANT HAS REQUESTED TO RESTORE THE APPEAL, WHICH WAS REJECTED BY THE CI T(A)-IV VIDE ORDER DATED 22/12/2004 U/D 249(4)(A) TO THE IT ACT, FOR N ON-PAYMENT OF AGREED TAX U/S 140A OF THE IT ACT. AT THE TIME OF DISPOSAL OF THE APPEAL, THE REQUIRED PAYMENT OF TAXES WAS NOT PAID DUE TO FINAN CIAL POSITION, WHICH WAS SUBSEQUENTLY PAID ON VARIOUS DATES. THE APPELLA NT STATED IN THIS LETTER THAT SINCE THE AMOUNT IS PAID, THE REASON FOR REJEC TING THE APPEAL NO LONGER SUSTAIN AND THEREFORE FOLLOWING THE DECISION OF JURISDICTIONAL TRIBUNAL IN THE CASE OF J.K. CHATURVEDI VS. ACIT 82 TTJ 284 THE APPEAL BEING PREFERRED NOW WHICH MAY BE ACCEPTED BY CONDON ING THE DELAY, IT(SS)A NO.21/AHD/2006 BLOCK PERIOD 1.4.96 TO 2.7.2002 IT(SS)A NO.21/AHD/2006 BLOCK PERIOD 1.4.96 TO 2.7.2002 2 WHICH WAS FOR SUFFICIENT UNAVOIDABLE REASONS. IT WA S ALSO CONTENDED THAT THE APPEAL WAS FILED IN TIME AND THEREAFTER HEARING THE REJECTION FOR WANT OF PAYMENT OF TAXES, THE SAME WAS FILED, THE SAME M AY BE ADMITTED BY CONDONING THE DELAY. 3.1 THE SUBMISSION OF THE APPELLANT IS DULY CONSIDE RED AND IT IS SEEN THAT THE FACTS OF THE CASE RELIED UPON BY THE APPEL LANT ARE DISTINGUISHABLE FROM THE FACTS OF THE APPELLANTS CASE. IN THAT CAS E, IT HAS BEEN HELD THAT IT IS IN THE REALM OF ITAT TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A). THE CONCLUSION IN BRIEF READS AS UNDER : THE FACTS ARISING DUE TO NON-COMPLIANCE OF SECTION 249(4) ARE A CURABLE ONE IN A GIVEN CASE. IF THE TRIBUNAL IS SATISFIED THAT THERE EXIST SUFFICIENT REASONS FOR CURING SUCH DEFECTS, AFTER THE EXPIRY OF LIMITA TION, IT WOULD BE IN THE REALM OF TRIBUNALS DECISION TO RESTORE SUCH ORDER TO THE CIT(A) FOR DECIDING THE CONTROVERSY ON MERITS. 3.2 AS CAN BE SEEN FROM THE ABOVE THAT THE ABOVE DE CISION NOWHERE SAYS THAT THE CIT(A) HAS POWER TO RECALL HIS OR HER OWN ORDER. IN VIEW OF THESE FACTS AND LEGALLY THE PRESENT APPEAL IS CONSI DERED AS NOT MAINTAINABLE, HENCE REJECTED. 2. AGAINST THIS THE LD. AR FOR THE ASSESSEE SUBMITT ED THAT UNDER SIMILAR CIRCUMSTANCES THE ITAT IN THE CASE OF SHRI VIKRAM R. GUPTA VS. ACIT IN IT(SS)A NO.22/AHD/2006 PRONOUNCED ON 18.09. 2008 HAD DIRECTED THE ADMISSION OF APPEAL AND, THEREFORE, TH E FACTS BEING THE SAME THE DELAY IN MAKING THE PAYMENTS OF THE TAXES SHOUL D BE CONDONED AND THE LD. CIT(A) BE DIRECTED TO ADMIT THE APPEAL AND DECIDE IT ON MERITS. IN THIS REGARD THE LD. AR DREW OUR ATTENTION TO PARA 4 OF THE ORDER OF THE TRIBUNAL REFERRED ABOVE AS UNDER :- 4. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATE RIALS AVAILABLE ON RECORD, ALONG WITH THE ORDER OF THE AUTHORITIES BEL OW. WE FIND THAT IN THIS CASE APPEAL WAS DISMISSED BY THE CIT(A) DUE TO NON- PAYMENT OF THE TAX DUE ON THE RETURNED INCOME BY INVOKING THE PROVISIO NS OF SECTION 249(4) OF THE ACT. THE ASSESSEE COULD NOT MAKE THE PAYMENT OF TAX DUE TO FINANCIAL STRINGENCY AND MADE THE PAYMENT SUBSEQUEN TLY AND ACCORDINGLY FILED A LETTER DATED 2.2.2005 REQUESTING THE FIRST APPELLATE AUTHORITY TO RESTORE THE APPEAL, BUT THE CIT(A) DID NOT RESTORE THE APPEAL. WE HAVE GONE THROUGH THE DECISION OF THE ITAT, AHMEDABAD BE NCH IN THE CASE OF IT(SS)A NO.21/AHD/2006 BLOCK PERIOD 1.4.96 TO 2.7.2002 3 JK CHATURVEDI (SUPRA) AND FIND THAT THE CASE OF THE ASSESSEE WILL BE COVERED BY THE SAID DECISION AND ACCORDINGLY SET AS IDE THE ORDER OF THE CIT(A) AND DIRECT THAT THE APPEAL BE DISPOSED OFF O N MERIT, IN ACCORDANCE WITH LAW. OUR VIEWS IS ALSO SUPPORTED BY THE FOLLOW ING DECISIONS :- A) ITO VS. SALKRUPA CONSTRUCTION (2007) 13 SOT 459 (MU M); B) MAYFAIR BUILDERS & DEVELOPERS VS. DCIT 115 TTJ 550 (PUNE); C) JR CHAUHAN VS. CIT 209 CTR 193 ( P & H); AND D) CIT VS. KALIPADA GHOUSE 167 ITR 173 (ORISSA) IN THIS VIEW OF THE MATTER, WE DIRECT THE CIT(A) TO ADMIT THE APPEAL AND DECIDE THE ISSUES ON MERIT, IN ACCORDANCE WITH LAW. 3. THE LD. DR SUPPORTED THE ORDER OF LD. CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. SINCE IT IS AN ADMITTED POSITION THAT FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS OF THE CASE IN THE CASE OF SHR I VIKRAM R. GUPTA, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL , WE DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL ON MERITS. 5. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 13/1/11 SD/- SD/- (MUKUL KR. SHRAWAT) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 13/1/11 MAHATA/- IT(SS)A NO.21/AHD/2006 BLOCK PERIOD 1.4.96 TO 2.7.2002 4 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 4/1/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 10/1/ 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..