Gopinath Bhausaheb Naikwadi, Pune V. Income tax Officer,

ITSSA 5/PUN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4990 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT HALDER
• Keywords: Business income; Reasonable cause; Condonation of delay
• Section: 80C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / IT (SS) A NO. 0 5 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 GOPINATH BHAUSAHEB NAIKWADI 11, PHULWARI APARTMENTS, SHAHU COLLEGE ROAD, OPP . STATE BANK COLONY NO.2, SAHAKARNAGAR, PUNE 411037 . / APPELLANT PAN: ADFPN6806P VS. THE INCOME TAX OFFICER, WARD 3, AHMEDNAGAR . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI ABHIJIT HALDER / DATE OF HEARING : 1 5 . 1 0 .201 8 / DATE OF PRONOUNCEMENT: 24 . 1 0 .201 8 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 2 , PUNE DATED 20 . 07 .2016 RELATING TO ASSESSMENT YEAR 20 12 - 13 AGAINST ORDER PASSED UNDER SECTION 144 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - IT (SS) A NO. 0 5 /P U N/20 1 7 GOPINATH B. NAIKWADI 2 A. THE LEARNED CIT APPEALS SHOULD HAVE CONSIDERED THE FACTS THAT THE ASSESSEE WAS IN POOR HEALTH, THAT ASSESSEE BELONGS TO MOFUSSIL AREA, THAT MEDICAL CERTIFICAT E HAS BEEN SUBMITTED FROM GOVERNMENT HOSPITAL, THAT ASSESSEE DOES NOT HAVE ANY FORMAL EDUCATION AND LEARNED CIT APPEALS SHOULD HAVE GIVEN NECESSARY RELIEF TO THE ASSESSEE. B. THE LEARNED CIT APPEALS SHOULD HAVE REMANDED BACK THIS CASE TO LEARNED ASSESSING OFFICER FOR AN IN DEPTH SCRUTINY. 3. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST EX - PARTE ORDERS PASSED BY ASSESSING OFFICER AND CIT(A). THE ASSESSEE IS ALSO AGGRIEVED BY ORDER OF CIT(A) IN NOT CONDONING THE DELAY IN FILING APPEAL LATE BEFORE HIM. 4. DESPITE SERVICE OF NOTICE NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. HOWEVER, LOOKING AT THE NATURE OF ORDERS PASSED, APPEAL IS BEING DECIDED AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENU E. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME OF 3,00,640/ - . THE CASE OF ASSESSEE WAS SELECTED UNDER CASS. THE ASSESSING OFFICER ISSUED NOTICES TO ASSESSEE, WHICH REMAINED UN - COMPLIED WITH. THE ASSESSEE FAILED TO FURNISH ANY DETAILS OR EXPLANATION. THE CASE OF ASSESSEE WAS COMPLETED EX - PARTE UNDER SECTION 144 OF THE ACT AND BUSINESS INCOME WAS ESTIMATED AT 6 LAKHS AS AGAINST INCOME SHOWN OF 4,00,640/ - . THE DEDUCTION CLAIMED UNDER SECT ION 80C OF THE ACT AT 1 LAKH WAS DENIED. FURTHER, ADDITION WAS MADE IN RESPECT OF OPENING CAPITAL BALANCE OF 22,75,413/ - . 6. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE SAID APPEAL WAS FILED AFTER DELAY OF 255 DAYS. THE ASSESSEE EXPLAINED T HE REASONS FOR DELAY POINTING OUT THAT DUE TO HIS ILL - HEALTH, HE COULD NOT APPEAR BEFORE THE ASSESSING IT (SS) A NO. 0 5 /P U N/20 1 7 GOPINATH B. NAIKWADI 3 OFFICER AND HENCE EX - PARTE ORDER WAS MADE. HE FURTHER POINTED OUT THAT THE PLACE WHERE HE IS STAYING WA S A SMALL PLACE AND IN THE ABSENCE OF PROFESSIONA L ADVI S E, HE DID NOT FILE APPEAL IN TIME. HE REQUESTED FOR CONDONATION OF DELAY OF 255 DAYS IN FILING THE APPEAL LATE. THE CONDONATION APPLICATION IS REPRODUCED BY CIT(A). THE ASSESSEE HAS CONTENDE D THAT HE WAS RESIDENT OF AKOLE, A SMALL TOWN IN SANGAMN ER TALUKA OF AHMEDNAGAR DISTRICT. HE WAS RUNNING A SHOP AND WAS IN THE BUSINESS OF TRADING IN AGRICULTURAL PESTICIDES, REPAIRS TO AGRICULTURAL INSTRUMENTS, ETC. HOWEVER, BECAUSE OF HIS HEALTH NOT BEING PERFECT AS HE WAS SUFFERING FROM ACUTE HYPERTENSION AND DIABETES, HE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER AND HENCE EX - PARTE ORDER. FURTHER, APPEAL BEFORE THE CIT(A) WAS ALSO FILED AFTER DELAY BECAUSE HE DID NOT HAVE PROPER PROFESSIONAL ADVISE. HE MADE A REQUEST FOR CONDONING THE DELAY OF 255 DAY S. THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE WAS A REGULAR ASSESSEE AND WAS ALSO CARRYING ON BUSINESS. HE FURTHER POINTED OUT THAT THE AILMENTS SUFFERED BY ASSESSEE WERE LIFE STYLE DECEASES AND IT COULD NOT MAKE THE PERSON IMMOBILE ESPECIALLY WHERE TH E ASSESSEE WAS 41 YEARS OF AGE. THE CIT(A) DISMISSED THE PLEA OF ASSESSEE OF REASONABLE CAUSE AND HELD IT TO BE AN INACTION ON THE PART OF ASSESSEE IN FILING THE APPEAL LATE BEFORE HIM. THE CIT(A) DID NOT CONDONE THE DELAY AND HENCE, DID NOT ADMIT THE AP PEAL AND DID NOT ADJUDICATE THE ISSUE ON MERITS. 7. THE ASSESSEE IS IN APPEAL AGAINST ORDER OF CIT(A). 8. ON PERUSAL OF RECORD AND AFTER GOING THROUGH SUBMISSIONS BEFORE THE CIT(A) AND STATEMENT OF FACTS, IT TRANSPIRES THAT ASSESSMENT IN THE CASE WAS COM PLETED EX - PARTE . THEREAFTER, THE ASSESSEE CLAIMS THAT BECAUSE OF HIS POOR HEALTH AND LACK OF FORMAL EDUCATION, THE APPEAL WAS NOT FILED IN TIME BEFORE THE IT (SS) A NO. 0 5 /P U N/20 1 7 GOPINATH B. NAIKWADI 4 CIT(A) AND HENCE, THE DELAY OF 255 DAYS. THERE IS MERIT IN THE PLEA OF ASSESSEE AND WE ARE OF THE VIEW THAT IT I S A FIT CASE FOR CONDONATION OF DELAY IN FILING THE APPEAL LATE BEFORE THE CIT(A), HENCE WE CONDONE THE SAME. HOWEVER, SINCE THE ASSESSEE HAD EVEN NOT APPEARED BEFORE ASSESSING OFFICER AND PRESENTED HIS CASE, WE DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER, WHO SHALL DECIDE THE MATTER DE NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 24 TH DAY OF OCTO BER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUN TANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 24 TH OCTO BER , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , PUNE ; 4. THE PR.CIT - 1 , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // T RUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE