Gouthamchand Nahar, L/r of Estates of Anoop Kanwar, CHENNAI v. DCIT, CHENNAI

ITA 1420/CHNY/2014 | 2006-2007
Pronouncement Date: 13-11-2014 | Result: Allowed

Appeal Details

RSA Number 142021714 RSA 2014
Assessee PAN AAFPD1057M
Bench Chennai
Appeal Number ITA 1420/CHNY/2014
Duration Of Justice 5 month(s) 22 day(s)
Appellant Gouthamchand Nahar, L/r of Estates of Anoop Kanwar, CHENNAI
Respondent DCIT, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 13-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 13-11-2014
Date Of Final Hearing 29-10-2014
Next Hearing Date 29-10-2014
Assessment Year 2006-2007
Appeal Filed On 22-05-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI . . !' # $ BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI V. DURGA RAO JUDICIAL MEMBER ./ I.T.A.NOS.1420 /MDS./2014 ( / ASSESSMENT YEAR :2006-07) SRI GOUTHAMCHAND NAHAR L/R OF ESTATE OF ANOOP KANWAR 18 GENERAL MUTHIAH MUDALI STREET CHENNAI 600 079. VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-II(1) CHENNAI. PAN AAFPD 1057 M ( %& / APPELLANT ) ( '(%& / RESPONDENT ) ./ I.T.A.NOS.1421 /MDS./2014 ( / ASSESSMENT YEAR :2006-07) SRI GOUTHAMCHAND NAHAR 18 GENERAL MUTHIAH MUDALI STREET CHENNAI 600 079. VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-II(1) CHENNAI. PAN AACPN 5206 F ( / APPELLANT) (RESPONDENT) / APPELLANT BY : MS.S.SRINIRANJANI ADVOCATE / RESPONDENT BY : MR.ANIRUDH RAI CIT D.R ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 2 / DATE OF HEARING : 29.10.2014 ! /DATE OF PRONOUNCEMENT : 13.11.2014 ) / O R D E R PER A.MOHAN ALANKAMONY ACCOUNTANT MEMBER: THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGGR IEVED BY THE SEPARATE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX(A) (C)-II CHENNAI DATED 30.10.2013 IN MP NOS. 2 & 1/13-14 OF 219 & 218/07- 08 PASSED UNDER SECTION 153A READ WITH SECTIONS 14 3(3) & 250 OF THE ACT IN THE CAPACITY OF LEGAL REPRESENTATIVE OF THE ESTATE OF ANOOP KANWAR AND THE OTHER APPEAL IN HIS INDIVIDUAL CASE RESPECTIVELY. 2. THE ASSESSEE AGGRIEVED BY THE EX PARTE ORDERS O F THE LD. CIT (A) HAS TAKEN UP EIGHT GROUNDS BEFORE US IN BOTH THE AP PEALS AMONGST WHICH ONE OF THE COMMON GROUNDS BEING NOT PROVIDING OPPORTUNITY TO THE ASSESSEE FOR ARGUING THE CASE BEFORE HIM AND PA SSING OF EX PARTE ORDERS WHICH IS IN VIOLATION OF PRINCIPLE OF NATUR AL JUSTICE. ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 3 3. THE ASSESSEES IN BOTH THE APPEALS HAVE ALSO FIL ED CONDONATION PETITIONS FOR THE DELAY IN FILING OF TH E APPEALS. IN THE CONDONATION PETITION THE ASSESSEE HAS STATED THAT T HERE WERE CONTINUOUS TRAGEDIES IN THE FAMILY OF THE ASSESSEE COUPLED WITH GRIEVOUS ILL-HEALTH PERSONALLY. THE RELEVANT PORTIO N OF THE CONDONATION PETITIONS FILED BY THE ASSESSEE IS EXTRACTED HEREIN BELOW FOR REFERENCE:- PURSUANT TO A SEARCH IN THE CASE OF SHRI SUBASH CH AND NAHAR ON 26.10.2005 NOTICE U/S. 153C WAS ISSUED TO THE PETI TIONER HEREIN IN RESPECT OF THE ASSESSMENT YEAR 2006-07 IN RESPECT O F WHICH AN ASSESSMENT HAD BEEN COMPLETED U/S. 153C R.W.S 143(3 ) OF THE ACT BY ORDER DATED 31.12.2007. THE ASSESSING OFFICER D ISALLOWED EXEMPTION CLAIMED BY THE PETITIONER IN RESPECT OF T HE PROFIT ON SALE OF AGRICULTURAL LAND AND MADE AN ADDITION OF RS.1 1 5 52 318/-. THE PETITIONER FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (A) WHO VIDE ORDER DATED 19.12.2012 DISMISSED THE APPEAL OF THE PETITIONER IN RESPECT FO THE ASSESSMENT YEAR 2006-0 7. THE AFORESAID ORDER OF THE LD. CIT (A) WAS CHALLENGED BEFORE THE ITAT WHEREIN THE PETITIONER RAISED A SPECIFIC GROUND THA T NO OPPORTUNITY WAS AFFORDED PRIOR TO PASSING OF THE ORDER BY THE L D. CIT (A). THE ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 4 ITAT AFTER DUE CONSIDERATION SET ASIDE THE MATTER T O THE FILE FO THE LD. CIT (A) TO CONSIDER THE ISSUE AFRESH AS PER LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE PETITIONER. THE ITAT HAD HELD THAT THE PETITIONER WAS TO APPEAR BEFORE THE LD. CIT (A) SU O MOTO WITHIN TWO MONTHS FROM THE DATE OF ORDER. THE PETITIONER SUBMI TS THAT UPON RECEIPT OF THE ORDER FROM THE TRIBUNAL HE HAD CONTA CTED HIS CHARTERED ACCOUNTANT GIVING HIM FULL AUTHORITY TO A PPEAR BEFORE THE LD. CIT (A) AND PURSUE THE MATTER. THE PETITIONER WAS UNDER THE BONA FIDE BELIEF THAT HE WAS BEING REPRESENTED BY T HE C.A BEFORE THE LD. CIT (A) . IN FACT THE PETITIONER IN THE IN TERIM PERIOD HAD BEEN ADMITTED IN THE HOSPITAL FROM 14.2.12 TO 20.2.12 FO R SURGERY AND WAS ADVISED BED REST FOR FOUR WEEKS(CERTIFICATE ENCLOSE D AS ANNEXURE I). SUBSEQUENTLY FROM 07.8.12 TO 11.8.12 THE PETITIONE R WAS AGAIN HOSPITALIZED FOR PARALYSIS ON THE LEFT SIDE AND WAS ADVISED TOTAL REST AND CARE FOR ANOTHER SIX MONTHS (CERTIFICATE ENCLOS ED AS ANNEXURE II). AGAIN FROM 20.6.2013 TO 28.6.2013 THE PETITIO NER WAS UNDERGOING TREATMENT FOR PARALYSIS FOR TWO MONTHS ( CERTIFICATE ENCLOSED AS ANNEXURE III). WHILE THIS IS SO THE PE TITIONERS ELDER SISTER ADMITTED IN THE HOSPITAL ON 01.08.2013 FOR E MERGENCY TREATMENT AND PASSED AWAY ON 08.08.2013. THIS TRAG EDY WAS FOLLOWED BY THE DEMISE OF THE ONLY SON-IN-LAW OF TH E PETITIONER ON 30.10.2013 DUE TO CORONARY FAILURE (DEATH CERTIFICA TE ENCLOSED AS ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 5 ANNEXURE IV). THE LOSS OF HIS SON-IN-LAW CAUSED GR EAT TRAUMA TO THE PETITIONER WHO SUFFERED A RECURRENCE OF THE PAR ALYSIS AND WAS ADMITTED INTO THE HOSPITAL FROM 19.12.2013 TO 03.01 .2014 AND 20.2.2014 TO 02.03.2014(CERTIFICATE ENCLOSED AS ANN EXURE V). IN SPITE OF THE VARIOUS TRAGEDIES AND MEDICAL TRAUMAS THAT THE PETITIONER HAD BEEN AFFECTED WITH HE HAS BEEN FOLL OWING THE MATTER WITH THE C.A WHO ASSURED HIM THAT HE WAS ATTENDING TO THE SAME. IT THUS CAME AS A GREAT SHOCK TO THE PETITIONER TO REC EIVE THE ORDER OF THE LD. CIT (A) DATED 30.10.2013 DISMISSING THE APP EAL OF THE PETITIONER WITHOUT AFFORDING ANY OPPORTUNITY OF HEA RING THE PETITIONER. THE SAME WAS RECEIVED BY THE PETITIONER ON 14.11.2013. THE PETITIONERS FAMILY BUSINESS HEALTH AND MENTA L CONDITIONS HAD BEEN GREATLY DISTURBED BY VIRTUE OF RECURRENCE OF I LLNESS AND TRAGEDIES THAT HAD BEEN SUFFERED. IT IS ONLY ON AC COUNT OF THE AFORESAID PERSONAL STRESS AND TRAUMA THAT UPON RECE IPT OF THE ORDER OF THE LD. CIT (A) THE PETITIONER HAD BEEN UNABLE T O TAKE IMMEDIATE ACTION. THE PETITIONER WAS DISCHARGED FROM HOSPITAL ONLY IN MARCH 2014 AND IMMEDIATELY THEREUPON TOOK ACTION TO PREPA RE NECESSARY APPEAL PAPERS AND FILE THE SAME BEFORE THE ITAT EXP EDITIOUSLY. THE APPEAL HAS THUS BEEN FILED ON 22.5.14 WITH THE DELA Y OF 129 DAYS. 3. THE PETITIONER SUBMITS THAT THE DELAY IN FILING OF THE APPEAL IS NEITHER WILLFUL NOR WANTON BUT ONLY DUE TO THE AFOR ESAID REASONS. ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 6 THE REASON FOR NON-FILING OF THE APPEAL IS BONAFIDE AND GREAT PREJUDICE WOULD BE CAUSED TO THE PETITIONER IF THE EXPLANATION ADVANCED BY HIM IS NOT ACCEPTED THE DELAY CONDONED AND THE APPEAL ADMITTED TO BE HEARD ON MERITS. THIS IS ALSO FOR THE REASON THAT NO IDENTICAL FACTS AND LEGAL POSITION THE INCO ME-TAX AUTHORITIES HAVE ACCEPTED THE CASE OF THE OWNER OF THE ADJACENT LAND AS AGRICULTURE THE INCOME THEREFROM NOT BEING LIABLE TO TAX. IN THE AFORESAID CIRCUMSTANCES IT IS JUST AND NECESSARY T HAT THE ABOVE NARRATION BE TAKEN INTO ACCOUNT AND THE DELAY CONDO NED. NO PREJUDICE WOULD BE CAUSED TO THE DEPARTMENT BY REAS ON OF THE DELAY BEING CONDONED. THE BALANCE OF THE CONVENIENCE IS THEREFORE IN FAVOUR OF THE DELAY BEING CONDONED AND THE APPEAL B EING HEARD ON MERITS. FURTHER THE ASSESSEE HAS ALSO SUBMITTED HIS MEDIC AL RECORDS IN XEROX COPIES IN ANNEXURE 1 TO 5 TO SUBSTANTIATE HI S CLAIM. CONSIDERING THE CONDONATION PETITIONS AND THE SUPPO RTING EVIDENCES FILED BY THE ASSESSEE WE HEREBY CONDONE THE DELAY OF 129 DAYS IN FILING THE APPEALS BY THE ASSESSEE. ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 7 4. MOREOVER ON PERUSING BOTH THE APPEALS IT IS AP PARENT THAT THE LD. CIT (A) HAD PASSED AN EXPARTE ORDER. NOTHI NG IS BROUGHT ON RECORD BEFORE US TO SHOW AS TO HOW MANY ADJOURNMENT S WERE SOUGHT BY THE ASSESSEE BEFORE THE LD. CIT (A) DUE TO WHICH THE LD. CIT (A) WAS CONSTRAINED TO PASS EX PARTE ORDERS. LD. D.R V EHEMENTLY ARGUED BEFORE US SAYING THAT THE APPEALS MAY NOT BE REMITT ED BACK TO THE FILE OF THE LD. CIT (A) ONLY FOR THE REASONS THAT THE LD . CIT (A) HAS PASSED EX PARTE ORDERS. THE LD. D.R FURTHER SUBMITTED A WRITTEN SUBMISSION BEFORE US WHICH IS REPRODUCED HEREIN BEL OW FOR REFERENCE:- THE FOLLOWING APPEALS WERE POSTED FOR HEARING BEFO RE THE A BENCH OF HON'BLE ITAT CHENNAI ON 29.10.2014. SL.NO. ITA NO. NAME OF THE CASE ASST. YEAR 01 1421/14 GOUTHAMCHAND NAHAR 2006-07 02 1420/14 GOUTHAMCHAND NAHAR L/R OF ESTATE OF ANOOP 2006-07 KANWAR DURING THE COURSE OF HEARING THE HON'BLE MEMBERS D ESIRED THAT A WRITTEN SUBMISSION SHOULD BE FILED BY THE CIT(DR) ON THE FO LLOWING ISSUES:- (I) DELAY IN FILING THE APPEALS (II) REMITTING THE APPEALS TO THE FILE OF CIT(A) ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 8 (I) DELAY OF 129 DAYS IN FILING THE APPEALS BOTH THE ABOVE MENTIONED APPEALS HAVE BEEN FILED WI TH A DELAY OF 129 DAYS. THE LD. CIT(A) HAD PASSED THE APPELLATE ORDER IN BOTH T HE CASES ON 30.10.2013 AND THE APPELLATE ORDERS WERE SERVED ON THE ASSESSEE ON 14.11.2013. THE APPEALS WERE TO BE FILED BY 13.01.2014. HOWEVER THE APPEAL WAS FILED ON 22.05.2014 I.E. WITH A DELAY OF 129 DAYS. ON GOING THROUGH THE CONDONATION PETITION IT IS NOTICED THAT THE ASSESSEE WAS ILL AND HOSPITALIZED FOR A PERIOD OF 15 DAYS I.E. FROM 19.12.13 TO 03.01.2014 ONLY AS PER THE CERTIFICATE ENCLOSED. N O VALID REASONS HAVE BEEN GIVEN FOR THE DELAY AFTER 03.01.2014 EXCEPT FOR A PERIOD OF 10 DAYS WITH EFFECT FROM 20.02.14 TO 02.03.14. AS PER THE VARIOUS DECISIONS OF THE HON'BLE MADRAS HIGH COURT THE ASSESSEE HAS TO EXPLAIN THE DELAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EACH DAY OF DELAY HAS TO BE EXPLAINE D WITH SATISFACTORY EVIDENCE. FOR THIS I RELY ON THE FOLLOWING CASE LAWS:- (A) M. LOGANATHAN VS. CIT (2008) 302 ITR 139 (MAD. ) (B) MADHU DADHA VS ACIT (2009) 317 ITR 458 (MAD) ( C ) RANKAK AND ORS VS REWA COALFIELDS LTD AIR 19 62 2 SSC 361 (SC) ( D ) JCIT VS. TRACTORS & FARM EQUIPMENTS LTD (2007 ) 104 ITD 149(ITAT CHENNAI TM) ( E ) SRI VENKATESA PAPER & BOARDS LTD VS DCIT (200 6) 98 ITO 200 (ITAT CHENNAI) (II) REMITTING THE APPEALS TO THE FILE OF CIT(A) THIS IS THE SECOND ROUND OF LITIGATION BEFORE THE L D. ITAT. IN THE FIRST ROUND THESE APPEALS (ITA NO. 361/MDS/2013 ASST YEAR 2006-07) WE RE DISPOSED OF BY THE HON'BLE ITAT VIDE ORDER DT.12.04.2013 WITH THE SPEC IFIC DIRECTION AS UNDER:- ' THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ID. CIT(A) SUO MOTU WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER FOR FIXING T HE DATE OF HEARING BEFORE THE ID. CIT(A). THE ASSESSEE IS FURTHER DIRECTED TO FILE ALL THE DETAILS AND DOCUMENTS AS AND WHEN CALLED UPON TO DO SO BY THE I D. CIT(A). THE ID. CIT(A) IS ALSO DIRECTED TO DISPOSE OF THE APPEAL EX PEDITIOUSLY.' THE ASSESSEE WILFULLY VIOLATED THE DIRECTIONS OF TH E HON'BLE ITAT AND DID NOT APPROACH THE CIT(A) EVEN AFTER SIX MONTHS FROM THE DATE OF THE HON'BLE ITAT'S ORDER. THE CIT(A) HAS NOTED THIS FACT IN PARA 3.2 O F HIS ORDER DT. 30.10.2013. THE CIT(A) FOLLOWING HIS PREDECESSOR'S ORDER IN THIS CA SE HAS DISMISSED THE APPEAL BOTH ON MERITS AS WELL AS FOR NON APPEARANCE. ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 9 IT IS VERY IMPORTANT TO POINT OUT HERE THAT IN THE FIRST ROUND OF APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE WAS GIVEN 10 OPPORTUNITIES ON 10.03.08 23.04.08 14.10.09 07.12.10 06.06.11 04.08.11 23.08.11 22.09.11 1 3.10.11 AND 18.12.12. NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE ATTE NDED THE HEARINGS BEFORE THE LD. CIT(A). THE CIT(A) EXAMINED THE MERITS OF THE CASE ALSO AND IN PARA-8 OF HIS ORDER DT.19.12.12 NOTED THAT 'THE APPELLANT HAS NOT FILED ANY EVIDENCE TO SHOW THAT THE LAND WAS USED FOR AGRICULTURAL PURPOSES. THERE WAS NO EVIDENCE SHOWING THAT AGRICULTURAL OPERATIONS WERE CARRIED ON THE SUBJECT LAND. THE APPELLANT HAS FAILED TO PRODUCE ANY EVIDENCE EITHER BEFORE THE AO OR BEFORE THE UNDERSIGNED IN SPITE OF MANY OPPORTUNITIES GIVEN TO HIM.' IT APPEARS THAT THE ASSESSEE IS TOTALLY NON COOPERA TIVE WITH THE AUTHORITIES OF THE INCOME TAX DEPARTMENT. HE FAILED TO FURNISH ANY EVI DENCE WHATSOEVER EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A). IN SUCH SITUATIONS IT IS LEGALLY PROPER FOR THE HON'BLE ITAT TO DISMISS THE APPEALS OF THE ASSESSEE FOR VIOLATING THE EXPRESS AND EXPLICIT DIRECTIONS OF THE HON'BLE ITAT . ANY FURTHER OPPORTUNITY ALLOWED TO THE ASSESSEE OR REMITTING THE APPEALS TO THE FILE OF THE CIT(A) WILL TENT AMOUNT TO GIVING REWARDS FOR NON COMPLIANCE AND FOR FLAUTING THE HON'BLE ITAT'S DIRECTIONS. 2. TODAY DURING THE COURSE OF HEARING THERE WAS NO DISCUSSION ON THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN THESE TW O APPEALS. THERE WAS NO DISCUSSION ON THE MERIT OF THE CASE. THE ASSESSEE I N THE GROUNDS OF APPEAL HAS NOT REQUESTED FOR SENDING THE FILE BEFORE THE CIT(A) AG AIN. THERE IS NO SUCH GROUND OF APPEAL TAKEN BY THE ASSESSEE. 5. HOWEVER CONSIDERING THE QUANTUM OF ADDITION MA DE BY THE REVENUE AND THE PHYSICAL AND MEDICAL CONDITIONS OF THE ASSESSEE AS TO HIS AGE AND HEALTH AND ALSO HAS BEEN ACTING IN THE CAPACITY OF LEGAL REPRESENTATIVE IN THE CASE OF LAT E ANOOP KANWAR IN THE INTEREST OF JUSTICE WE HEREBY DIRECT THE MATTER TO BE REMITTED BACK TO THE FILE OF THE LD.CIT(A) FOR DENOVO CONSIDERATI ON. FURTHER WE ITA NO.1420/MDS/14 SRI GOUTHAMCHAND NAHAR 10 HEREBY DIRECT THE ASSESSEE AND THEIR LEGAL REPRESEN TATIVES TO CO-OPERATE WITH THE REVENUE IN THE PROCEEDINGS IN O RDER TO EXPEDITE THE ORDER BY NOT SEEKING UNNECESSARY ADJOURNMENTS A ND BY FURNISHING THE ENTIRE RELEVANT DOCUMENTS CALLED FOR FAILING WHICH THE LD.CIT (A) SHALL PASS APPROPRIATE ORDERS AS PER MER IT AND LAW. 6. IN THE RESULT BOTH THE APPEALS OF ASSESSES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUS ION OF HEARING ON 13 TH NOVEMBER 2014. SD/- SD/- (V. DURGA RAO) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 13 TH NOVEMBER 2014. K S SUNDARAM. '# $%&% /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. '() /CIT(A) 4. ' /CIT 5. %*+ /DR 6. +-. /GF