Sh. Harichand Raichand Pagariya,, Pune v. ITO, Ward 2(1),, Pune

ITA 1174/PUN/2010 | 2001-2002
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 117424514 RSA 2010
Assessee PAN ABKPP5224G
Bench Pune
Appeal Number ITA 1174/PUN/2010
Duration Of Justice 7 month(s)
Appellant Sh. Harichand Raichand Pagariya,, Pune
Respondent ITO, Ward 2(1),, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 31-03-2011
Date Of Final Hearing 01-02-2011
Next Hearing Date 01-02-2011
Assessment Year 2001-2002
Appeal Filed On 30-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO S . 1174 TO 1177 /PN/ 20 10 ( ASSTT. YEAR S : 2001 - 02 TO 2004 - 05 ) SHRI HIRACHAND RAICHAND PAGARIYA 45 RUTURAJ SOCIETY SATARA ROAD PUNE 411 037 PAN : ABKPP 5224 G .. APP ELLANT V. INCOME TAX OFFICER WARD 2[1] PUNE . RESPONDENT APP ELLANT BY : SHRI KISHORE PHADKE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER I.C. SUDHIR J M THE ONE OF THE GROUNDS ON WHICH FIR ST APPELLATE ORDER HAS BEEN QUESTIONNED BY THE ASSESSEE IN THE PRESENT APPEALS IS THE ACTION OF THE LD CIT(A) IN NOT CONDONING THE DELAY IN FILING THE FIRST APPEALS BEFORE HIM. 2. ON HAVING GONE THROUGH THE FIRST APPELLATE ORDER WE FIND THAT THE FIRST AP PEALS HAVE BEEN DISMISSED BY HIM ONLY ON THE BASIS THAT THE APPEALS ARE TIME BARRED HENCE NON - MAINTAINABLE. HE HAS REJECTED THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE FIRST APPEALS ON THE BASIS THAT THERE WAS NO SUFFICIENT CAUSE SHOWN FOR TH E DELAY. 3. WE HAVE ALLOWED THE PARTIES TO ADDRESS THE BENCH ON THE ISSUE AS TO WHETHER THERE WAS SUFFICIENT CAUSE WITH THE APPELLANTS IN NOT PREFERRING THE FIRST APPEALS IN TIME. 4. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAD NOT RECEIVED NOTICES U/S. 153C AS ALSO THE ASSESSMENT ORDER PASSED IN THE PRESENT ITA . NO S. 1174 TO 1177 /PN /20 10 S HRI HIRACHAND R. PAGARIYA A.Y S 2001 - 02 TO2004 - 05 2 CASE. ONLY WHEN THE PENALTY ORDERS WERE SERVED AND RECOVERY PROCEEDINGS WERE UNDERTAKEN BY THE DEPARTMENT THE APPELLANT CAME TO KNOW THAT APPEAL WAS TO BE FILED AGAINST THE ASSESSMENT ORDER. HE A LSO REITERATED THE OTHER EXPLANATION GIVEN BY THE ASSESSEE FOR THE DELAY BEFORE THE FIRST APPELLATE AUTHORITY AS WELL AS ABOUT THE IGNORANCE OF THE ASSESSEE TOWARDS INCOME - TAX PROCEEDINGS. 5. THE LD. D.R ON THE OTHER HAND TRIED TO JUSTIFY THE FIRST APP ELLATE ORDER ON THIS ISSUE. HE SUBMITTED THAT AS PER THE REPORT OF THE A.O SUBMITTED BEFORE THE LD CIT(A) NOTICES ISSUED U/S. 153C OF THE ACT ON 02.11.2007 FOR A.YS. 2000 - 01 AND 2004 - 05 WERE SERVED ON THE ASSESSEE ON 17.11.2007. PHOTO - COPY OF SERVICE OF NOTICE WAS ENCLOSED BY THE A.O. WITH THE REPORT FILED BEFORE THE LD. CIT(A). 6. HAVING GONE THROUGH THE FIRST APPELLATE ORDER IN VIEW OF THE SUBMISSIONS MADE BY THE PARTIES WE FIND THAT THE LD CIT(A) HAS REJECTED THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE FIRST APPEAL AFTER ABOUT 2 YEARS 12 DAYS DELAY. DISCUSSING SEVERAL DECISIONS THE LD CIT(A) HAS COME TO THE CONCLUSION THAT THERE WAS NO SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEALS WITHIN THE PRESCRIBED PERIOD U/S. 249(2). HE HAS OB SERVED THAT THE LANGUAGE USED IN SECTION 249(3) IS SUFFICIENT CAUSE AND NOT REASONABLE CAUSE. SUFFICIENT CAUSE IS MUCH MORE STRINGENT THAN THE TERM REASONABLE CAUSE AND EVEN IF A CAUSE IS REASONABLE IT HAS TO BE ASCERTAINED WHETHER IT WAS SUFFI CIENT CAUSE OR NOT. AS PER HIM THE ONLY REASON EXPLAINED BY THE ASSESSEE FOR THE DELAY REMAINED WAS IGNORANCE OF LAW. HE HAS NOT AGREED WITH THIS EXPLANATION OF THE ASSESSEE ABOUT HIS IGNORANCE OF LAW WITH THIS OBSERVATION THAT AGAINST PENALTY ORDER PASSED U/S. 271(1)(C ) BASE D ON THE SAME ASSESSMENT ORDER THE ITA . NO S. 1174 TO 1177 /PN /20 10 S HRI HIRACHAND R. PAGARIYA A.Y S 2001 - 02 TO2004 - 05 3 ASSESSEE HAS PROMPTLY FILED APPEALS FOR ALL THESE YEARS ON 28.7.2008 I.E. WITHIN THE PRESCRIBED PERIOD OF TIME. THE APPEALS AGAINST THE ASSESSMENT ORDERS FOR THE YEARS UNDER CONSIDERATION HAV E BEEN FILED ONLY ON 16.12.2010. THE LD CIT(A) HAS OBSERVED FURTHER THAT HAD THE APPELLANT CHOSEN TO FILE APPEALS AGAINST THE ASSESSMENT ORDERS ALONG WITH PENALTY ORDER BUT STILL THERE WOULD HAVE BEEN A DELAY OF SIX MONTHS. THESE UNDISPUTED FACTS I N OUR VIEW ITSELF SUGGEST THAT THERE WAS IGNORANCE OF LAW ON THE PART OF THE ASSESSEE AND HE ACTED ON THE ADVICE OF HIS AUTHORISED REPRESENTATIVE TO PREFER APPEALS AGAINST THE ORDER OF PENALTY PASSED U/S. 271(1)(C ) OF THE ACT BUT NOT AGAINST THE ASSES SMENT ORDERS. WE AGREE WITH THE OBSERVATIONS OF THE LD CIT(A) THAT HAD THE APPELLANT CHOSEN TO FILE APPEALS AGAINST THE ASSESSMENT ORDERS AL O NG WITH PENALTY STILL THE DELAY OF ABOUT SIX MONTHS WAS REQUIRED TO BE EXPLAINED BY THE ASSESSEE. AT THE SAME T IME WE DO NOT FIND REASON TO DOUBT THE EXPLANATION OF THE ASSESSEE ABOUT IGNORANCE OF LAW SINCE OTHERWISE THERE WAS NO REASON WITH THE ASSESSEE IN NOT PREFERRING FIRST APPEALS AGAINST THE ASSESSMENT ORDERS IF THE ASSESSEE WOULD HAVE BEEN PROPERLY ADVI SED. IT IS AN ESTABLISHED P ROPOSITION OF LAW THAT FOR THE FAULT ON THE PART OF THE LD. COUNSEL OF THE ASSESSEE THE ASSESSEE CANNOT BE ALLOWED TO SUFFER. NOWHERE IN THE FIRST APPEALLATE ORDER IT IS MENTIONED AS TO WHEN ASSESSEE WAS SERVED WITH THE AS SESSMENT ORDER TO COMPUTE THE DELAY AS WORKED OUT BY THE LD CIT(A) THUS THERE IS NO REASON TO DOUBT THE EXPLANATION OF THE ASSESSEE THAT THE ASSESSEE CAME TO KNOW ABOUT PASSING OF THE ASSESSMENT ORDER U/S. 144 READ WITH SECTION 153C OF THE ACT ONLY ON RE CEIPT OF PENALTY ORDER . THUS THE ASSESSEE HAS TO EXPLAIN THE DELAY IN FILING HIS APPEALS UNDER CONSIDERATION AGAINST THE ASSESSMENT ORDERS ON RECEIPT OF THE PENALTY ORDER. AS DISCUSSED ABOVE THE CIRCUMSTANCES OF THE PRESENT CASE SUGGEST THAT THERE WAS IGNORANCE OF ITA . NO S. 1174 TO 1177 /PN /20 10 S HRI HIRACHAND R. PAGARIYA A.Y S 2001 - 02 TO2004 - 05 4 PROVISIONS OF THE ACT ON THE PART OF THE ASSESSEE IN NOT PREFERRING THE FIRST APPEALS IN TIME AGAINST THE ASSESSMENT ORDERS. SUFFICIENT CAUSE IS NOT A QUESTION OF PRINCIPLE BUT A QUESTION OF FACT. HENCE WHETHER TO CONDONE THE DELAY OR NOT DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY DEPENDS ONLY ON THE FACT PLACED BY THE APPLICANT. STILL THE WORDS SUFFICIENT CAUSE OUGHT TO RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANT IVE JUSTICE WHEN NO IGNORANCE OR INACTION OR FOR WANT OF BONAFIDE IMPUTABLE TO THE APPELLANT. WORD USED IN SECTION 249(3) IS MAY AND NOT SHALL AND THE FIRST APPELLATE AUTHORITY IS GIVEN A DISCRETION TO ADMIT AN APPEAL EVEN AFTER THE EXP IR ATION OF PERIOD OF LIMITATION PRESCRIBED U/S. 249(2). THE DISCRETION IS OBVIOUSLY TO BE EXERCISED WHERE SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE TIME IS MADE OUT BY THE APPELLANT. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS DISCUSSED ABOVE WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE WITH THE ASSESSEE IN NOT PREFERRING THE FIRST APPEALS IN TIME. WE THUS CONDONE THE DELAY IN PREFERRING THE FIRST APPEALS AND SET ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO DECIDE THE APPEALS ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE PARTIES. 7. IN RESULT APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2011. SD/ - S D/ - ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE DATED THE 31ST MARCH 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : ITA . NO S. 1174 TO 1177 /PN /20 10 S HRI HIRACHAND R. PAGARIYA A.Y S 2001 - 02 TO2004 - 05 5 1. THE A PP ELLA NT 2. THE RESPONDENT 3. THE CIT II PUNE 4. THE CIT(A) - II PUNE 5. THE D.R. A BENCH PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE