Jhansi Development Authority, Jhansi v. The CIT. Range-II, Agra

ITA 22/AGR/2010 | misc
Pronouncement Date: 27-08-2010 | Result: Allowed

Appeal Details

RSA Number 2220314 RSA 2010
Assessee PAN AAALJ0068K
Bench Agra
Appeal Number ITA 22/AGR/2010
Duration Of Justice 6 month(s) 22 day(s)
Appellant Jhansi Development Authority, Jhansi
Respondent The CIT. Range-II, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 27-08-2010
Date Of Final Hearing 20-07-2010
Next Hearing Date 20-07-2010
Assessment Year misc
Appeal Filed On 05-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NO.22/AGR/2010 JHANSI DEVELOPMENT AUTHORITY VS. THE COMMISSIONE R OF INCOME-TAX OPP. CIRCUIT HOUSE RANGE-II AGRA. COMMISSIONERY CAMPUS JHANSI. (PAN : AAALJ 0068 K). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.K. AGARWAL ADVOCATE. RESPONDENT BY : SMT. SEEMA RAJ C.I.T. (D.R.) ORDER PER P.K. BANSAL A.M.: THE ONLY ISSUE IN THIS APPEAL FIELD BY THE ASSESSEE AGAINST THE ORDER OF THE CIT DATED 20 TH JANUARY 2010 PASSED UNDER SECTION 12AA OF THE INCO ME-TAX ACT 1961 (THE ACT HEREINAFTER) ACT RELATES TO THE CONDONATION OF DELAY IN RESPECT OF THE APPLICATION FILED FOR REGISTRATION UNDER SECTION 12AA OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS APPLIED FOR THE REGISTRATION UNDER SECTION 12AA OF THE ACT BEFORE THE CIT ON 02.03.200 7 W.E.F. F.Y. 2003-04 ONWARDS. THE ASSESSEE ALSO MADE AN APPLICATION FOR THE CONDONATI ON OF THE DELAY. THE CIT GRANTED THE REGISTRATION TO THE ASSESSEE UNDER SECTION 12AA W.E .F. 01.04.2006 AND REJECTED THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY MENTIONING TH AT THE ASSESSEE HAD ENGAGED A CHARTERED 2 ACCOUNTANT (C.A.) FOR AUDIT OF ACCOUNTS AND FILING OF INCOME-TAX RETURNS. THE ASSESSEES PLEA THAT IT LACKS PROPER PROFESSIONAL ADVICE CANNOT BE ACCEPTED. 3. THE LD. A.R. BEFORE US VEHEMENTLY CONTENDED THAT THE ASSESSEE HAS NOT BEEN PROPERLY ADVISED BY THE C.A. WHO WAS ENGAGED FOR AUDIT PURPO SE ONLY. THE ASSESSEE WAS ALSO NOT AWARE OF THE TECHNICAL PROVISIONS AND ACCORDINGLY HE APPL IED FOR THE GRANT OF REGISTRATION AS SOON AS HE WAS ADVISED VIDE APPLICATION DATED 02.03.2007. THE ACTIVITIES OF THE ASSESSEE DID NOT CHANGE. IT CAME INTO EXISTENCE EARLIER PRIOR TO 01.04.2003. T HERE IS NO NEGLIGENCE ON THE PART OF THE ASSESSEE. WHEN THE SUBSTANCE OF THE JUSTICE AND TE CHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER THE SUBSTANCE OF THE JUSTICE HAS TO BE PREFE RRED. IT WAS CONTENDED THAT UNDER THE SIMILAR FACTS DELAY WAS CONDONED FOR THE REGISTRATION UNDE R SECTION 12A IN THE CASE OF CIT VS. KRISHI UTPDAN MANDI SAMITI PURVA & OTHERS. IN THAT CASE ALSO SOME OF THE OFFICIALS WERE UNDER BONAFIDE BELIEF THAT THE INCOME OF THE ASSESSEE WIL L REMAIN EXEMPT. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF BHARAT AUTO CENTRE VS. CIT 200 CTR (ALL.) 289. 4. LD. D.R. ON THE OTHER HAND RELIED ON THE ORDER OF THE CIT. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO N AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. IN THIS CASE WE NOTED THAT THE ASSESSEE WAS ALLOWED REGISTRATION UNDER SECTION 12AA BUT W.E.F. 01.04.2006 EVEN THOUGH THE ASSESSEE HAS ASKED FOR THE REGISTRATION W.E.F. 01.04.2003. THE ASSESSEE HAS ALSO REQUESTED FOR CONDONATION OF DELAY AS IT WAS NOT PROPERLY ADVISED BY THE TAX CON SULTANT AND THEREFORE THE APPLICATION COULD 3 NOT BE MADE EARLIER. IN OUR OPINION THE ASSESSEE CANNOT BE MADE TO SUFFER FOR THE INCOMPETENCY OF THE ADVOCATE. IF THE ADVOCATE HAS BEEN INCOMPET ENT TO GIVE THE PROPER ADVICE TO THE CLIENT THE NEGLIGENCE OF THE ADVOCATE CANNOT BE AN ATTRIBU TE FOR INJUSTICE TO THE ASSESSEE. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQU ISITION VS. MST. KATIJI & OTHERS 167 ITR 471 HAS HELD THAT THE COURT SHOULD HAVE A PRAGMATIC AND LIBERAL APPROACH WHILE CONDONING THE DELAY. CONDONATION OF DELAY IS A MATTER OF THE DIS CRETION OF THE COURT. IN THE CASE OF VEDABAI VS. SHANTARAM BABURAO PATIL & ANOTHER 125 STC 375 THE HONBLE APEX COURT HAS OBSERVED THAT THE COURT HAS TO EXERCISE ITS DISCRETION KEEPING I N MIND THAT THE PRINCIPLE OF ADVANCING JUSTICE IS OF PRIME IMPORTANCE AND THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION. IN THE CASE OF RAFIQ C. MUNSHILAL AIR 1981 SC 1400 (1401) IT WAS OBSERVED WE CANNOT BE A PARTY TO AN INNOCENT PARTY SUFFERING INJUSTICE MERE LY BECAUSE HIS CHOSEN ADVOCATE DEFAULTED. EVEN IN THE CASE OF MUNICIPAL CORPORATION VS. RAMCH ARAN AIR (2003) SC 2164 THE COURT HELD THAT FAILURE OF THE COUNSEL ON ACCOUNT OF CONFUSION IS A SUFFICIENT CAUSE. IN THE CASE BEFORE US THE COUNSEL HAS NOT PROPERLY ADVISED TO THE ASSESSE E. THIS ITSELF IN OUR OPINION IS A SUFFICIENT CAUSE AND DELAY HAS TO BE CONDONED. WE HAVE ALSO G ONE THROUGH THE DECISION OF THE HONBLE HIGH COURT OF ALLAHABAD AS RELIED BY THE LD. A.R. IN THAT CASE WE NOTED THAT THE HONBLE HIGH COURT HAS HELD AS UNDER :- THE CIT(A) AS WELL AS THE TRIBUNAL HAVE TAKEN PEDA NTIC VIEW WHILE CONSIDERING THE APPLICATION FOR CONDONATION OF DELA Y. IT HAS BEEN CONSISTENTLY HELD BY THE APEX COURT THAT IN THE MATTER OF CONDON ATION OF DELAY A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAKEN. THE REASONS GIVEN BY THE APPELLANT FOR THE DELAY APPEAR TO BE SUFFICIENT CAUSE AND ACCORDINGLY THE DELAY IS LIABLE TO BE CONDONED. THE LAW OF LIMITATION IS ENSHRINED IN THE MAXIM IN TEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIO D BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF T HE PARTIES RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLA TIVELY FIXED PERIOD OF TIME. THE ORDER OF THE TRIBUNAL AND THE ORDER OF THE CIT(A) A RE ASSET ASIDE. THE MATER IS REMANDED BACK TO THE CIT(A) TO DECIDE THE APPEAL ON MERIT AFTER GIVING OPPORTUNITY OF HEARING IN ACCORDANCE TO THE LAW. 4 6. WE HAVE ALSO GONE THROUGH THE RECENT DECISION OF THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF SUBHASH MALIK VS. CIT & ANOTHER 325 ITR 243 (ALL) WHEREIN THE HIGH COURT HAS HELD AS UNDER :- RULES OF LIMITATION ARE NOT A MEANT TO DESTROY THE RIGHTS OF THE PARTIES RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. AS FAR AS POSSIBLE THE COURT S DISCRETION SHOULD BE EXERCISED IN FAVOUR OF THE HEARING AND NOT TO SHUT OUT HEARIN G. THE SUPREME COURT IN THE CASE OF WEST BENGAL V. ADMINISTRATOR HOWRAH MUNICI PALITIES [1972] AIR 1972 SC 749 HAS HELD THAT IF A PARTY HAD ACTED IN A PART ICULAR MANNER ON WRONG ADVICE GIVEN BY HIS LOCAL ADVISOR HE CANNOT BE HELD GUILTY OF NEGLIGENCE SO AS TO DISENTITLE THE PARTY TO PLEAD SUFFICIENT CAUSE UNDER SECTION 5 OF THE LIMITATION ACT 1963. IT ALSO HELD THAT THE WORDS SUFFICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE AND NO NEGLIGE NCE OR INACTION FOR WANT OF BONA FIDES IS IMPUTABLE TO A PARTY. 7. WE THEREFORE CONDONE THE DELAY AND DIRECT THE C IT TO ALLOW THE REGISTRATION TO THE ASSESSEE W.E.F. 01.04.2003. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT ON 27.08.2010). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 27 TH AUGUST 2010. PBN/* 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY