Jayvantsinh N Vaghela V. Income Tax Officer

TAXAP/854/2013

AI Insights

The case involves Jayvantsinh N Vaghela, the appellant, who challenged the decision of the Income Tax Appellate Tribunal (ITAT) Ahmedabad, which had dismissed his appeals due to delays in filing. The delays were attributed to the appellant's previous Chartered Accountant not advising him to appeal after losing at the CIT(A) level. The ITAT dismissed the appeals without considering them on merits, citing inordinate delays. The High Court found that the ITAT erred in not condoning the delay, emphasizing that appeals should generally be decided on merits rather than technical grounds like delay, unless there is gross negligence or mala fide intent.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 793950 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 22-10-2013
• Assessment Year: misc
• Other Referred Cases: Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: VARUN PATEL
• Assessee Lawyers: SWATI SOPARKAR
• Keywords: Condonation of delay; Income Tax; ITAT; Limitation

Judgement Text

"O/TAXAP/853/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 853 of 2013 With TAX APPEAL NO. 854 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH ­sd/­ and HONOURABLE MS JUSTICE SONIA GOKANI ­sd/­ ============================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ============================================= JAYVANTSINH N VAGHELA....Appellant(s) Versus INCOME TAX OFFICER....Opponent(s) ============================================= Appearance: MRS SWATI SOPARKAR, ADVOCATE for the Appellant(s) No. 1 MR.VARUN K.PATEL, ADVOCATE for the Opponent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date : 22/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in both these appeals, they are being finally heard, decided and disposed of by this common judgment and order. Page 1 of 5 O/TAXAP/853/2013 JUDGMENT 2.0. Both these appeals have been preferred by the common appellant ­assessee challenging the impugned common order passed by the learned Income Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as “the ITAT”) dated 22.3.2013 passed in ITA Nos. 563 and 564/AHD/2012 with respect to the assessment year 2007­08 and 2008­09, by which, the learned Tribunal has dismissed the said appeals on the ground of limitation. 2.1. Being aggrieved and dissatisfied with two separate orders of CIT(A) dated 24.1.2011 for the assessment year 2007­08 and 22.7.2011 for the assessment year 2008­09, the common appellant herein ­assessee preferred appeals before the learned ITAT being ITA Nos. 563 of 2012 and 564 of 2012. There was a delay of 328 days in preferring the appeal against the order passed by the learned CIT(A) with respect to assessment year 2007­08 and there was a delay of 158 days in preferring the appeal against the order passed by the learned CIT(A) with respect to assessment year 2008­09. The assessee requested the learned Tribunal to condone the delay by submitting that earlier tax matter were being looked after by a Chartered Accountant M/s. J M. Patel & Brothers and even after losing the appeal before the learned CIT(A), he did not advise the assessee to file further appeal before the Tribunal. It was further stated in the affidavit that subsequently the assessee came to know about losing in the appeal and thereafter they contacted another Income Tax Practitioner Shri Sharad C. Patel and advised him to prefer appeal and thereafter they preferred appeals. Therefore, it was requested to condone the delay. By impugned common order, the learned Tribunal has refused to condone the Page 2 of 5 O/TAXAP/853/2013 JUDGMENT delay and has dismissed the appeal on the ground of limitation observing that there is inordinate delay in preferring the appeals and affidavit of the Income Tax Practitioner is not filed. 2.2. Being aggrieved and dissatisfied with the impugned common order passed by the learned Tribunal in dismissing the aforesaid appeals on the ground of limitation and not condoning the delay of 328 days and 158 days respectively, common appellant has preferred the present appeals. 3.0. We have heard Shri Soparkar, learned advocate for the appellant and Shri Varun Patel, learned advocate for the respondent and perused the impugned common order passed by the learned Tribunal. Considering the affidavits filed by the assessee before the Tribunal which are even reproduced by the learned Tribunal, we are of the view that the learned Tribunal has committed error in not condoning the delay and not considering the appeals on merits. It is required to be noted that there is no observation by the learned Tribunal that there was any deliberate delay on the part of the assessee and / or there was any mala fide intention on the part of the assessee in not preferring the appeals within a period of limitation. The reasoning given by the learned Tribunal that the assessee has not filed the affidavit of Income Tax Practitioner in support of the affidavits filed by the assessee is concerned, it is required to be noted that once the Income Tax Practitioner is changed it may not be possible for the assessee to get affidavit of Income Tax Practitioner. On the aforesaid ground, the condonation of delay was not required to be refused. It is a cardinal Page 3 of 5 O/TAXAP/853/2013 JUDGMENT principle of law that normally by and large, the appeals are required to be decided on merits rather than dismissing the same on technical ground like delay etc. unless it is found that there was gross negligence on the part of the assessee and / or there was any mala fide intention on the part of the assessee in not preferring the appeal within the period of limitation and / or in filing the appeals belatedly. As observed by the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others reported in (1987) 2 SCC 107 ordinarily a litigant does not stand to benefit by lodging an appeal late. It is further observed by the Hon’ble Supreme Court that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 4.0. Considering the aforesaid principles laid down by the Hon’ble Supreme Court and the facts of the case on hand, we are of the view that learned Tribunal ought to have condoned the delay and ought to have decided and disposed of the appeals on merits rather than dismissing the same on the ground of limitation 5.0. In view of the above and for the reasons stated above, both these appeals succeed and the impugned common order passed by the ITAT dated 22.3.2013 in ITA Nos. 563 and 564/AHD/2012 with respect to the assessment year 2007­08 and 2008­09 is hereby quashed and set aside and the delay caused in preferring the respective appeals is hereby condoned and the Page 4 of 5 O/TAXAP/853/2013 JUDGMENT matter is remitted to the learned ITAT to decide and dispose of the said appeals in accordance with law and on merits. With this, both these appeals are allowed to the aforesaid extent. sd/­ (M.R.SHAH, J.) sd/­ (MS SONIA GOKANI, J.) Kaushik Page 5 of 5 "