Nirmalbhai S. Mehta,, JAMNAGAR v. The Income Tax Officer, Ward-3(2),, JAMNAGAR

ITA 235/RJT/2013 | 2003-2004
Pronouncement Date: 31-07-2013 | Result: Allowed

Appeal Details

RSA Number 23524914 RSA 2013
Assessee PAN ACVPV3767G
Bench Rajkot
Appeal Number ITA 235/RJT/2013
Duration Of Justice 2 month(s)
Appellant Nirmalbhai S. Mehta,, JAMNAGAR
Respondent The Income Tax Officer, Ward-3(2),, JAMNAGAR
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-07-2013
Assessment Year 2003-2004
Appeal Filed On 31-05-2013
Judgment Text
I IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH RAJKOT. Z . . R Z . . Z BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM ITA NO S . 225 & 226/RJT/2013 R R / ASSESSMENT YEAR 200 3 - 04 LATE CHANDRAKANT C. VORA L/H. NIRMALABEN C. VORA DHIRAJ NIVAS NR. BHID BHANJAN TEMPLE JAMNAGAR PAN: ACVPV3767G ( / APPELLANT) INCOME - TAX OFFICER WARD - 3(2) JAMN AGAR. G / RESPONDENT ITA NOS. 227 & 228/RJT/2013 R R / ASSESSMENT YEAR 2003 - 04 SMT. NIRMALABEN C. VORA DHIRAJ NIVAS NR. BHID BHANJAN TEMPLE JAMNAGAR PAN: ACVPV6096L ( / APPELLANT) INCOME - TAX OFFICER WARD - 3(2) JAMNAGAR. G / RESPONDENT ITA NOS. 229 TO 23 4 /RJT/2013 R R / ASSESSMENT YEAR S 2003 - 04 TO 2005 - 06 SHITALBEN S. VORA M/S. RIDDHI IMPEX PLOT NO.624 GIDC PHASE - 2 DARED JAMNAGAR PAN: A MIPS5690Q ( / APPELL ANT) INCOME - TAX OFFICER WARD - 2(2) JAMNAGAR. G / RESPONDENT ITA NOS. 235 & 236/RJT/2013 R R / ASSESSMENT YEAR 2003 - 04 NIRMALB HAI S. MEHTA M/S. SALIBHADRA ENTERPRISE PLOT NO.624 GIDC PHASE - 2 DARED JAMNAGAR PAN: A BKPJ8123A ( / APPELLANT) INCOME - TAX OFFICER WARD - 2(2) JAMNAGAR. G / RESPONDENT RLU / ASSESSEE BY SHRI CHETAN AGARWAL CA. R U / REVENUE BY SHRI K. C. MATHEWS DR. U / DATE OF HEARIN G 06 - 06 - 2013 U / DATE OF PRONOUNCEMENT 31 - 0 7 - 2013 / ORDER PER BENCH : TH E S E 12 APPEAL S BY THE ASSESSEE ARE AGAINST THE SEPARATE ORDER S OF LD. CIT (A) JAMNAGAR DISMISSING ALL THE APPEALS IN LIMINE BY REJECTION THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEALS BEFORE LD. CIT(A). ITA 225 TO 236 - 201 3 2 2. AT THE TIME OF HEARING ON BEHALF OF THE ASSESSEE SHRI CHETAN AGARWAL CA APPEARED AND EXPLAINED THAT THE LD. CIT (A) IN THE IMPUGNED ORDER DISMISSED THE APPEAL BY REJECTING THE APPLICATI ON FOR CONDONATION WHICH IS RAISING FROM 858 DAYS TO 870 DAYS AS UNDER: - ITA NO. NAME OF ASSESSEE A Y ORDER UNDER SECTION ADDITION MADE TAX/PENALTY DELAY IN DAYS 225/RJT/2013 CHANDRAKANT C. VORA 2003 - 04 143(3) RWS 254 30781400 22455884 870 226/RJT/2013 C HANDRAKANT C. VORA 2003 - 04 271(1)(C) 0 9668840 703 227/RJT/2013 NIRMALABEN C. VORA 2003 - 04 143(3) RWS 254 28234500 20592605 870 228/RJT/2013 NIRMALABEN C. VORA 2003 - 04 271(1)(C) 0 8866568 703 229/RJT/2013 SHITALBEN S. VORA 2003 - 04 144 R.W.S. 147 77835500 62512979 8 58 230/RJT/2013 SHITALBEN S. VORA 2003 - 04 271(1)(C) 0 24490900 695 231/RJT/2013 SHITALBEN S. VORA 2004 - 05 144 R.W.S. 147 10359842 7831242 858 232/RJT/2013 SHITALBEN S. VORA 2004 - 05 271(1)(C) 0 3390150 695 233/RJT/2013 SHITALBEN S. VORA 2005 - 06 144 R.W.S. 147 7464500 5140595 858 234/RJT/2013 SHITALBEN S. VORA 2005 - 06 271(1)(C) 0 2483400 695 235/RJT/2013 NIRMALBHAI S MEHTA 2003 - 04 144 R.W.S. 147 15825000 12592241 858 236/RJT/2013 NIRMALBHAI S MEHTA 2003 - 04 271(1)C) 0 4957 600 695 TOTAL 18 49 83 004 3. COUNSEL OF THE ASSESSEE POINTED OUT THAT SHRI CHANDRAKANT VORA WAS MANAGING ALL AFFAIRS OF BUSINESS TRANSACTIONS WHICH WAS CARRIED OUT OF HIS WIFE NAMELY; SMT. NIRMALABEN C. VOR A HER DAUGHTER - IN - LAW SMT. SHITAL SAURAB H VORA AND BROTHER OF HER DAUGHTER - IN - LAW SHRI NIRMAL SHASHIKANT MEHTA. SHRI CHANDRAKANT VORA EXPIRED ON 02 - 03 - 2009 DUE TO BLOOD CANCER. HE DIED AFTER PROLONGED ILLNESS. SUBSEQUENT TO HIS DEMISE VARIOUS MEMBERS OF THE FAMILY RECEIVED ASSESSMENT/PENALTY ORDERS RAI SING HUGE DEMAND AS ENUMERATED ABOVE. ON RECEIPTS OF THE ORDERS THEY APPROACHED MANY TAX ADVOCATES AND CHARTERED ACCOUNTANTS FOR HANDLING THEIR TAX MATTERS HOWEVER CONSIDERING HUGE AMOUNT INVOLVED IN THE CASES THEY DEMANDING HUGE FEES WHICH WERE BEYOND THE REACH AND TOTAL WORTH. THE COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT IN THESE ORDERS HUGE DEMAND OF RS.18.50 CRORES IS CREATED AND THESE ASSESSEES HAVE NO MEANS/CAPACITIES TO PAY THE SAME. ITA 225 TO 236 - 201 3 3 4. CONTINUING HIS ARGUMENT COUNSEL OF TH E ASSESSEE POINTED OUT THAT CONSIDERING THE PECULIAR FACTS THERE IS A SUFFICIENT AND REASONABLE CAUSE FOR DELAY AS THE ASSESSEE WAS PREVENTED FROM FILING THE APPEAL IN TIME DIE TO DEATH OF THE PERSON HANDING THE AFFAIRS AND WORSE FINANCIAL POSITION LEADIN G TO NON - AVAILABILITY OF LEGAL ASSISTANCE. THEREFORE DELAY IN FILING THE APPEAL BE CONDONED AND THE CIT (A) BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS. 5. FOR CONDONATION OF DELAY COUNSEL OF THE ASSESSEE RELIED ON THE JUDGMENT OF HONBL E SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION ANANTNAG AND ANR. V. MST. KATIJI AND ORS. AIR 1987 SC 1353 HELD AS UNDER: - THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE PAGE 0795 IS ADEQUATELY ELASTIC TO ENABLE THE COURT TO APPLY THE LAW IN A MEANINGFUL MANNER W HICH SUB - SERVES THE ENDS OF JUSTICE THAT BEING THE LIFE - PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOE S NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLES AS IT IS REALIZED THAT: ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. REFUSING TO CONDONE DELAY C AN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. T IS C OMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL TH E OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED O N PRINCIPLES AS IT IS REALIZED THAT: (1) ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEF EATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. (3) EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVER Y HOURS DELAY EVERY SECONDS DELAY ? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREF ERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALA FIDES. A LITIGANT ITA 225 TO 236 - 201 3 4 DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVIN G INJUSTICE AND IS EXPECTED TO DO SO. MAKING A JUSTICE - ORIENTED APPROACH FROM THIS PERSPECTIVE THERE WAS SUFFICIENT CAUSE FOR CONDITION THE DELAY IN INSTITUTION OF THE APPEAL. 6. FURTHER RELIANCE WAS ALSO PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMEN T: - (1) IN RAMLAL & CHHOTELAL V. REWA COALFIELDS LTD. [(1962) 2 SCR 762] IT WAS LAID DOWN THAT IN SHOWING SUFFICIENT CAUSE TO CONDONE THE DELAY IT IS NOT NECESSARY THAT THE APPLICANT/APPELLANT HAS TO EXPLAIN WHOLE OF THE PERIOD BETWEEN THE DATE OF TH E JUDGMENT TILL THE DATE OF FILING THE APPEAL. IT IS SUFFICIENT THAT THE APPLICANT/ APPELLANT WOULD EXPLAIN THE DELAY CAUSED BY THE PERIOD BETWEEN THE LAST OF THE DATES OF LIMITATION AND THE DATE ON WHICH THE APPEAL/APPLICATION IS ACTUALLY FILED. WHAT CON STITUTE SUFFICIENT CAUSE CANNOT BE LAID DOWN BY HARD AND FAST RULES. (2) IN NEW INDIA INSURANCE CO. LTD. V. SMT. SHANTI MISRA [AIR 1976 SC 237] SUPREME COURT HELD THAT DISCRETION GIVEN BY SECTION 5 SHOULD NOT BE DEFINED OR CRYSTALLIZED SO AS TO CONVERT A DISCRETIONARY MATTER INTO A RIGID RULE OF LAW. THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION. (3) IN SHAKUNTALA DEVI JAIN V. KUNTALKUMARI & ORS. [(1969) 1 SCR 1006] A BENCH OF THREE JUDGES HAD HELD THAT UNLESS WANT OF BONA FID ES OF SUCH INACTION OR NEGLIGENCE AS WOULD DEPRIVE A PARTY OF THE PROTECTION OF SECTION 5 IS PROVED THE APPLICATION MUST NOT BE THROWN OUT OR ANY DELAY CANNOT BE REFUSED TO BE CONDONED. (4) IN O.P. KATHPALIAA V. LAKHMIR SINGH (DEAD) & ORS. [(1984) 4 SCC 66] A BENCH OF THREE JUDGES HAD HELD THAT IF THE REFUSAL TO CONDONE THE DELAY RESULTS IN GRAVE MISCARRIAGE OF JUSTICE IT WOULD BE A GROUND TO CONDONE THE DELAY. DELAY WAS ACCORDINGLY CONDONED. (5) IN SMT. PRABHA V. RAM PARKASHKALRA [(1987) SUPP. SCC 3 38] SUPREME COURT HAD HELD THAT THE COURT SHOULD NOT ADOPT AN INJUSTICE - ORIENTED APPROACH IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY. THE APPEAL WAS ALLOWED THE DELAY WAS CONDONED AND THE MATTER WAS REMITTED FOR EXPEDITIOUS DISPOSAL IN ACCORD ANCE WITH LAW. (6) IN G. RAMEGOWDA MAJOR & ORS V. SPL. LAND ACQUISITION OFFICER BANGALORE [(1988) 2 SCC 142] IT WAS HELD THAT NO GENERAL PRINCIPLE SAVING THE PARTY FROM ALL MISTAKES OF ITS COUNSEL COULD BE LAID. THE EXPRESSION SUFFICIENT CAUSE MU ST RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE AND GENERALLY DELAYS IN PREFERRING THE APPEALS ARE REQUIRED TO BE CONDONED IN THE INTEREST OF JUSTICE WHERE NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA IS IMPUTABLE TO TH E PARTY SEEKING CONDONATION OF DELAY. (7) IN RAM KRISHAN & ANR. V. U.P. STATE ROADWAYS TRANSPORT CORPN. & ANR. [(1994) SUPP. 2 SCC 507] SUPREME COURT HAD HELD THAT ALTHOUGH THE STORY PUT FORWARD BY THE APPLICANT FOR NOT FILING THE APPLICATION FOR COMPENS ATION UNDER THE MOTOR VEHICLES ACT WITHIN THE PERIOD OF LIMITATION WAS NOT FOUND CONVINCING BUT KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AND CAUSE OF JUSTICE THE DELAY WAS CONDONE AND THE APPEAL WAS SET ASIDE AND THE MATTER WAS REMITTED TO THE TRIBUNAL TO DISPOSE IT ON MERITS. ITA 225 TO 236 - 201 3 5 7. FINALLY RELIANCE WAS ALSO PLACED ON THE DECISION OF RAJKOT BENCH IN THE CASE OF SHAKTI CLEARING AGENCY (P) LTD. V. ITO (2003) 080 TTJ 0668 WHEREIN IT WAS HELD THAT DELAY IN FILING APPEALS DUE TO INACTION ON THE PART OF TAX CO NSULTANT WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN FILING APPEAL. 8. ON THE OTHER HAND SHRI K. C. MATHEWS DR APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT (A). THE LD. DR POINTED OUT THAT LOOKING TO THE PERIOD OF DELAY LD. CIT (A) IS LEGALLY AND FACTUALLY CORRECT IN DISMISSING THE APPEALS OF THE VARIOUS ASSESSEES BY REJECTION OF CONDONATION PETITION. THE LD. DR ALSO POINTED OUT THAT THERE WAS GROSS NEGLIGENCE ON THE PART OF VARIOUS ASSESSEES AND THAT BEFORE THE LD. CIT (A) ASSESSEE FAILED TO EXPLAIN HIS SUBMISSION FOR DELAY. THEREFORE THE VIEW TAKEN BY THE LD. CIT (A) DISMISSING ALL APPEALS IN LIMINE BE UPHELD. 9. HAVING HEARD BOTH SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT SHRI CHANDRAKANT VORA WAS MANAGING ALL AFFAIRS/LOOKING AFTER THE TAX MATTERS OF HIS WIFE SMT. NIRMALABEN C. VORA HER DAUGHTER - IN - LAW SMT. SHITAL SAURABH VORA AND BROTHER OF HER DAUGHTER - IN - LAW SHRI NIRMAL SHASHIKANT MEHTA. HE DIED O N 02 - 03 - 2009 DUE TO BLOOD CANCER. THE ASSESSMENT ORDERS/PENALTY ORDERS WERE RECEIVED AFTER THE DEATH OF SHRI CHANDRAKANT VORA WHO WAS MANAGING THE AFFAIRS OF VARIOUS FAMILY MEMBERS. PRIMA FACIE IT APPEARS THAT DUE TO HIS DEATH THE VARIOUS FAMILY MEMBER S COULD NOT FILE THE APPEAL WITHIN THE PRESCRIBED TIME BEFORE THE LD. CIT (A). ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. AT THE SAME TIME R EFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT TH E VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. LOOKING TO THE PECULIAR FACTS OF THE CASE WE ARE CONVINCED THAT THE REASONS EXPLAINED BEFORE LD. CIT (A) FOR DELAY IN FILING THE APPEALS ARE NOT MALA FIDE OR A DEVICE TO COVER UP ULTERIOR PURPOSE. TH EREFORE LD. CIT (A) OUGHT TO HAVE TAKEN A LIBERAL ITA 225 TO 236 - 201 3 6 APPROACH WHILE DISPOSING OFF THE CONDONATION PETITION FILED BY VARIOUS ASSESSEES. SINCE IN THE IMPUGNED ORDERS THE LD. CIT (A) FAILED TO TAKE A LENIENT VIEW WE CONDONE THE DELAY IN FILING ALL THE APPEALS BEFORE HIM AND ACCORDINGLY SET ASIDE HIS OWN IMPUGNED ORDERS AND DIRECT HIM TO DECIDE ALL THE 12 APPEALS AFRESH ON MERITS AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 10. BEFORE PARTING WITH THE MATTER IT IS CLARIFIED THAT VIEW TAKEN IN T HESE APPEALS IS BASED ON PECULIAR FACTS OF THE CASE AND THEREFORE SHALL NOT OPERATE A S PRECEDENT. 11 . IN THE RESULT ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. 12 . THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( . . ZR D. K. SRIVASTAVA ) ( . . R / T. K. SHARMA) / ACCOUNTANT MEMBER R / JUDICIAL MEMBER / ORDER DATE 31 - 07 - 2013. /RAJKOT NVA/ - 7 RJO O / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT - LATE CHANDRAKANT C. VORA L/H. NIRMALABEN C. VORA DHIRAJ NIVAS NR. BHID BHANJAN TEMPLE JAMNAGAR. 2 . G / RESPONDENT - INCOME - TAX OFFICER WARD - 3(2) / WARD - 2(2) JAMNAGAR. 3 . I E / CONCERNED CIT JAMNAGAR . 4 . E - / CIT (A) JAMNAGAR. 5 . I I / DR ITAT RAJKOT 6 . R / GUARD FILE. / BY ORDER TRUE COPY. SENIOR PRIVATE SECRETARY ITAT RAJKOT