Shri Dilipbhai Mangaldas Shah, Ahmedabad V. The Income Tax Officer, Ward-3, Mehsana

MA 56/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2181 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: S N DIVETIA
• Keywords: Set aside
• Section: 201

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI AMARJIT SINH, ACCOUNTANT MEMBER MA NO.55 AND 56/AHD2019 IN ITA NO.2131 AND 2132/AHD/2015 / ASSTT.YEAR : 2008-09 AND 2011-12 SHRI DILIPBHAI MANGALDAS SHAH M/S.HIMANI JEWELLERS OPP: KHAMAR BHAVAN KALOL-GUJARAT. VS. ITO, WARD - (3) MEHSANA. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI S.N.DIVETIA, AR REVENUE BY : SHRI LALIT P. JAIN, SR.DR / DATE OF HEARING : 12/11/2020 / DATE OF PRONOUNCEMENT: 1 /12/2020 !'/ O R D E R PER AMARJIT SINH, ACCOUNTANT MEMBER: BY WAY OF ABOVE TWO MISC. APPLICATIONS ASSESSEE SEE KS TO RECALL ORDERS OF THE TRIBUNAL DATED 13.11.2017 PASSED IN I TA NOS.2131 & 2132/AHD/2015, WHICH WERE DISMISSED FOR WANT OF PRO SECUTION. 2. MISC. APPLICATIONS FILED BY THE ASSESSEE ARE LAT E BY 270 DAYS AS NOTED BY THE REGISTRY IN THE FILE. THE ASSESSEE HAS EXPLAINED THE REASONS FOR THE DELAY IN FILING OF THE MA WAY OF AN AFFIDAVIT. THE RELEVANT PART OF THE AFFIDAVIT READS AS UNDER: MA NO.55 AND 56/AHD/2019 2 2. I AM A SMALL BUSINESSMAN STAYING IN KALOL WITH MY WIFE AND CARRYING ON THE BUSINESS OF JEWELLERY TRADING AND L ABOUR WORK OF JEWELLERY MAKING IN THE NAME OF 'HIMANI JEWELLERS' AND EARN COMMISSION INCOME ALSO. I ALSO EARN INCOME ON INVES TMENTS MADE OUT OF MY SAVINGS. 2.1 I AM TAKING THE HELP AND ASSISTANCE OF TAX ADVI SORS AND ADVOCATES SHRI KANUBHAI SHAH/ SHRI VINAY SHAH, CARR YING ON THEIR TAX PRACTICE IN THE NAME OF 'SHAH CONSULTANCY' AT F -31, SILVER PLAZA, NAVJIVAN MILLS COMPOUND, KALOL IN RELATION T O PREPARATION OF THE BOOKS OF ACCOUNTS, BOOK KEEPING, COMPILATION AN D PREPARATION OF NECESSARY DETAILS AND INFORMATION FOR PREPARING RET URN OF INCOME AND FILING THEREOF FOR MYSELF AND MY FAMILY MEMBERS , ATTENDING ALL THE NOTICES AND COMMUNICATION WITH THE INCOME TAX A UTHORITIES, REPRESENTATION IN ASSESSMENT PROCEEDINGS, GUIDING A ND FILING THE APPEALS, LIAISONING WITH ADVOCATES IN APPEALLATE PR OCEEDINGS IN RESPECT OF ALL MYSELF AND MY FAMILY MEMBERS DIRECT TAX RELATED COMPLIANCE REQUIREMENTS AND HAVE REMAINED COMPLETEL Y RELYING IN THEM FOR SUCH MATTERS DUE TO LONG TIME RELATIONSHIP . 2.2 I USED TO SEND AND SUBMIT ALL THE LETTERS/ NOTI CES/ COMMUNICATIONS THAT ARE ADDRESSED TO ME IN RELATION TO MY TAX RETU RN WHETHER FOR ASSESSMENT, APPEAL OR ANY PROCEEDINGS IN RELATION T HERETO FOR ALL AND ANY OF THE ASSESSMENT YEAR TO MY AFORESAID TAX ADVI SORS IN RESPECT OF ALL MYSELF AND MY FAMILY MEMBERS DIRECT TAX RELATED COMPLIANCE REQUIREMENTS AND USED TO AUTHORISE THEM TO APPEAR O N MY AND MY FAMILY MEMBERS BEHALF BEFORE THE TAX AUTHORITIES IN CONNECTION WITH ANY MATTER AND PROCEEDINGS. 2.3 IN CASE OF THE SUBJECT MATTER UNDER THIS PRESEN T AFFIDAVIT, AS PER USUAL PRACTICE, I HANDED OVER THE ALL THE NOTICES / LETTERS/ COMMUNICATIONS SERVED ON ME FROM TIME TO TIME, ASSE SSMENT ORDERS, APPELLATE ORDERS AND ANY OTHER ORDERS AND COMMUNICA TIONS INCLUDING THAT OF ORDERS OF PENALTY LEVIED U/S 271( L)(C) TO MY AFORESAID ADVOCATES AND TAX COMPLIANCE ADVISORS AND AUTHORISED THEM WITH A REQUEST TO DO THE NEEDFUL INCLUDING FIL ING OF AN APPEAL AS THEY CONSIDER APPROPRIATE. 2.4 AS INFORMED TO MY BY MY TAX ADVISORS, IN MYSELF AND MY FAMILY MEMBERS CASES, ALL THE MATTERS BEFORE THE ASSESSING OFFICERS HAVE BEEN TAKEN CARE OF BY THEIR OFFICE AND IN THE MATTE RS OF ALL THE APPEALS BEFORE COMMISSIONER OF INCOME TAX (APPEALS) AND HON'BLE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD, THE SAME WERE HANDLED MA NO.55 AND 56/AHD/2019 3 BY ONE M/S R. B. RATHI & CO., ADVOCATES AND TAX CON SULTANTS, HAVING THEIR OFFICE AT 35, NEW CLOTH MARKET, AHMEDA BAD - 38002. I WAS UNDER HONEST BELIEF THAT ALL THE ASSESSMENT AND APPELLATE PROCEEDINGS WERE BEING TAKEN CARE OF AND ATTENDED T O BY THE SAID ADVOCATE FIRM IN LAISION WITH MY TAX ADVISORS M/S S HAH CONSULTANCY. 2.5 RECENTLY, I WAS INFORMED THAT SAID MR. R. B. R ATHI HAD EXPIRED DUE TO HEALTH RELATED PROBLEMS DURING DECEMBER, 201 6. 2.6 UNTIL THE TIME I RECEIVED PROCEEDINGS FOR TAX R ECOVERY AND TELEPHONIC COMMUNICATIONS THEREFORE, I WAS UNDER GE NUINE BELIEF THAT MY TAX ADVISORS MUST HAVE FILED APPEALS BEFORE THE HIGHER AUTHORITIES CHALLENGING THE ORDERS PASSED BY THE ASSESSING OFFI CER AND ARE TAKING APPROPRIATE ACTIONS IN RESPECT THEREOF, BUT, TO MY SURPRISE, NO ACTIONS WERE TAKEN BY MY TAX ADVISORS, EVEN NO APPEAL WAS F ILED AGAINST ORDER LEVYING PENALTY NOR DID ANYONE ATTEND THE HEA RING FOR APPEAL FILED BEFORE HON'BLE INCOME TAX APPELLATE TRIBUNAL AND IT IS BECAUSE OF THESE REASONS, MY APPEALS WERE SET ASIDE AND REJ ECTED. THUS, MY SAID TAX ADVISORS DID NOT INFORM OR ADVISE ME ABOUT THE APPEAL OR ANY OTHER APPROPRIATE ACTION TO BE TAKEN BY ME. 2.7 I HAD, IN PAST, UNDERGONE BARIATRIC SURGERY DUR ING 2004 FOR WEIGHT REDUCTION AND ALSO SUFFERED CARDIAC DISEASE AND HAVE ALSO UNDERGONE CBG (CORONARY BYE PASS SURGERY) DURING 20 17 AS WELL AND ALSO REMAIN UNDER MENTAL STRESS DUE TO MEDICAL AILMENTS ALSO AND DOES NOT ENJOY GOOD PHYSICAL HEALTH CONSISTENTL Y. DUE TO FACTS STATED IN PRECEDING PARAGRAPHS AND MEDICAL AILMENTS SUFFERED BY ME AND KEEPING TOTAL TRUST ON MY TAX ADVISORS, I COULD NOT ATTEND TO MY TAX MATTERS AND COULD NOT UNDERSTAND ITS REPERCUSSI ONS AND SERIOUSNESS AS MY TAX ADVISORS NEVER EVER INFORMED MY ABOUT THE SERIOUSNESS OF THE MATTER UNTIL THE TIME NOW, WHEN THE DEMAND LEVIED ON ME HAS REACHED TO SUCH A HIGH MAGNITUDE. 3. THE ENTIRE DELAY IN FILING THE APPEAL OCCURRED I N THE ABOVE EXPLAINED CIRCUMSTANCES IS ONLY BECAUSE OF TOTAL NE GLIGENCE AND CARELESSNESS OF MY TAX ADVISORS AND THERE IS NO MAL A FIDE INTENTION ON MY PART. 3. IT IS SUBMITTED BY THE LD.COUNSEL FOR THE ASSESS EE THAT SINCE THERE IS SUFFICIENT REASONS FOR THE ASSESSEE FOR NOT FILI NG THE APPEAL IN TIME, MA NO.55 AND 56/AHD/2019 4 THE DELAY IN FILING THE MAS. MAY BE CONDONED, AND T HE MA MAY BE TAKEN FOR HEARING ON MERIT. THE LD.COUNSEL FOR THE ASSESSEE HAS ALSO SUBMITTED THAT THE ASSESSEE WANT TO AVAIL BENEFIT UNDER THE VSV SCHEME , THEREFORE, THE MAS MAY BE RESTORED TO CONSIDER THE SAME ON MERIT. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE RECORD CAREFULLY. THE REASONS FOR DELAY IN FILING PRESEN T TWO MAS CANNOT BE SIMPLY BRUSHED ASIDE, AS THE SAME ARE BASED ON THE FACTS NARRATED BY THE ASSESSEE AND SUPPORTED BY AN AFFIDAVIT WHICH DE SERVE REASONABLE AND LENIENT CONSIDERATION IN VIEW OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULE 1963. IN VIEW OF THIS, AN D COUPLED WITH THE FACT THAT THE ASSESSEE HAS FILED LETTER DATED 3.11. 2020 STATING THEREIN THAT THE ASSESSEE WANTS TO SETTLE THE ISSUE UNDER V IVAD SE VISHWAS SCHEME AND WANTS TO FILE DECLARATION FOR SETTLEMENT OF THE ISSUE UNDER APPEAL BY THE ASSESSEE, WE CONDONE THE DELAY IN FIL ING THE MAS., AND ALLOW THE ASSESSEE FOR EXERCISING OPTION TO AVAIL B ENEFIT UNDER VSV SCHEME. CONSIDERING THE ABOVE FACTS AND CIRCUMSTAN CES, THE MA OF THE ASSESSEE ARE ALLOWED AND REGISTRY IS DIRECTED T O LIST THESE CASES FOR HEARING ON 20.1.2021. 5. IN THE RESULT, THE MAS. ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 1 ST DECEMBER, 2020 AT AHMEDABAD. S D / - (RAJPAL YADAV) VICE-PRESIDENT S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER AHMEDABAD; DATED 1/12/2020