Shri Ganesh Kumar Agrawal, Jaipur V. Assistant Commissioner Of Income Tax, Circle-5, Jaipur

MA 17/JPR/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3816 (ITAT-JAIPUR)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-02-2019
• Court: TRIBUNAL

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 17/JP/2019 (ARISING OUT OF ITA NO. 745/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 SHRI GANESH KUMAR AGARWAL 20/124, SECTOR 25, WARD NO. 28, MANSAROVAR, KAVERI PATH, JAIPUR. CUKE VS. THE ACIT, CIRCLE-5, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AASPA 6450 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VEDANTA AGARWAL (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING :22/03/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/03/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE IS SEEKING RECALLING OF THE ORDER OF TRIBUNAL DATED 11.12.2018 WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED EX-PARTE. 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE AND I N LIMINE BY TREATING MA NO. 17/JP/2019 SHRI GANESH KUMAR AGARWAL VS. ACIT 2 THE SAME AS BARRED BY LIMITATION. HE HAS SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THE CAUSE OF DELAY IN THE APPLICATION AS WELL AS IN THE AFFIDAVIT IN SUPPORT OF THE APPLICATION. FURTHER, T HE ASSESSEE ALSO FILED A MEDICAL CERTIFICATE TO SHOW THAT THE ASSESSEE WAS N OT ABLE TO APPEAR BEFORE THE TRIBUNAL ON 10.12.2018 WHEN THE APPEAL O F THE ASSESSEE WAS HEARD AND DISPOSED OFF EX-PARTE. THE LD. AR HAS SUB MITTED THAT THE ASSESSEE HAS NOW FILED A CERTIFICATE FROM THE RECIP IENT COMPANY IN RESPECT OF THE INTEREST AND THEREFORE, AS PER THE A MENDED PROVISIONS OF SECTION 40(A)(IA) OF THE I.T ACT ONCE, THE RECIPIEN T COMPANY HAS CONSIDERED THE SAID AMOUNT AS PART OF THEIR INCOME AND FILED THE RETURN OF INCOME THEN, IN VIEW OF THE SECOND PROVISO TO SE CTION 40(A)(IA) OF THE ACT NO DISALLOWANCE IS MADE FOR WANT OF TDS. THUS, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE IS HAVING A GOOD CASE O N MERITS AND THEREFORE, DISMISSAL OF APPEAL BEING BARRED BY LIMI TATION WITHOUT HEARING THE ASSESSEE COULD RESULT GROSS IN JUSTICE. THUS, T HE LD. AR HAS PLEADED THAT THE IMPUGNED ORDER MAY BE RECALLED AND THE APP EAL OF THE ASSESSEE MAY BE HEARD ON MERITS. 3. ON THE OTHER HAND, THE LD. DR HAS OBJECTED TO TH E MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE TRIBUNAL HAS ALR EADY CONSIDERED THE MA NO. 17/JP/2019 SHRI GANESH KUMAR AGARWAL VS. ACIT 3 CAUSE OF DELAY EXPLAINED BY THE ASSESSEE WHILE PASS ING THE IMPUGNED ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. WE FIND THAT THERE WAS DELAY OF 211 DAYS IN FILING THE APPEAL WHICH WAS EXPLAINED BY THE ASSESSEE IN T HE AFFIDAVIT AND APPLICATION AS MARRIAGE OF AUTHORIZED REPRESENTATIV E OF THE ASSESSEE DURING THE PERIOD WHEN THE APPEAL OF THE ASSESSEE W AS TO BE FILED. THOUGH THE TRIBUNAL HAS CONSIDERED THE EXPLANATION AS STATED IN THE AFFIDAVIT AS NOT REASONABLE, HOWEVER WHEN THE ASSES SEE HAS PRODUCED THE CERTIFICATE FROM THE RECIPIENT COMPANY REGARDIN G THE INTEREST AMOUNT WAS PART OF THE INCOME AND OFFERED TO TAX TH EN THE EXPLANATION OF THE ASSESSEE FOR CONDONATION OF DELAY REQUIRES, ELABORATE DISCUSSIONS AND ARGUMENTS ON BEHALF OF THE ASSESSEE. ACCORDINGL Y, TAKING A LENIENT VIEW WE RECALL THE IMPUGNED ORDER DATED 11.12.2018 SUBJECT TO COST OF RS. 1000/- AND RESTORE THE APPEAL OF THE ASSESSEE A T ITS ORIGINAL STAGE AND NUMBER. THE REGISTRY IS DIRECTED TO LIST THE AP PEAL OF THE ASSESSEE FOR FRESH HEARING ON 22.05.2019. SINCE, THE DATE OF THE HEARING OF THE APPEAL HAS BEEN ANNOUNCED IN OPEN COURT AND THE SAM E HAS BEEN NOTED BY THE PARTIES, THEREFORE, NO SEPARATE NOTICE SHALL BE ISSUED IN THIS RESPECT. MA NO. 17/JP/2019 SHRI GANESH KUMAR AGARWAL VS. ACIT 4 IN THE RESULT, THE MISCELLANEOUS APPLICATION IS AL LOWED SUBJECT TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 27/03/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/03/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI GANESH KUMAR AGARWAL, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-5, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 17/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR