Shri Becharbhai Ramjibhai Munjani, Bhavnagar v. The Jt.CIT.,Range-1,, Bhavnagar

ITA 3038/AHD/2010 | 2005-2006
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 303820514 RSA 2010
Assessee PAN ACJPM7304C
Bench Ahmedabad
Appeal Number ITA 3038/AHD/2010
Duration Of Justice 10 month(s) 5 day(s)
Appellant Shri Becharbhai Ramjibhai Munjani, Bhavnagar
Respondent The Jt.CIT.,Range-1,, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-09-2011
Date Of Final Hearing 02-09-2011
Next Hearing Date 02-09-2011
Assessment Year 2005-2006
Appeal Filed On 04-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD BEFORE SHRI T. K. SHARMA JUDICIAL MEMB ER AND SHRI A. K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.3038 / AHD/2010 (ASSESSMENT YEAR 2005-06) SHRI BECHARBHAI RAMJIBHAI MUMJANI PLOT 116/B SARITA SOCIETY BHAVNAGAR VS. JCIT RANGE I BHAVNAGAR PAN/GIR NO. : ACJPM7304C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SUNIL H TALATI AR RESPONDENT BY: G M CHAUHAN SR. DR DATE OF HEARING: 02.09.2011 DATE OF PRONOUNCEMENT: 09.09.2011 O R D E R PER SHRI A. K. GARODIA AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A) XX AHMEDABAD DATED 02.01.2009 FOR THE ASSESSMENT Y EAR 2005-06. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: YOUR APPELLANT BEING AGGRIEVED BY THE ORDER PASSE D BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XX AHMEDABAD PRESENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OT HER GROUNDS. 1. THE LEARNED C.I.T. (APPEALS) ERRED BOTH IN LA W AND ON FACTS IN DISMISSING THE APPEAL OF THE ASSESSES IN LIMINE BY NOT CONDONING THE DELAY IN FILING THE APPEAL. YOUR APPELLANT RESP ECTFULLY SUBMITS THAT THE FILING OF THE APPEAL WAS DELAYED B Y 149 DAYS IN VIEW OF THE REASONABLE AND SUFFICIENT CAUSE AS STAT ED IN THE DELAY CONDONATION APPLICATION DATED 26-05-2008 ADDRESSED THE C.I.T. I.T.A.NO. 3038 /AHD/2010 2 (APPEALS)-XIX AHMEDABAD A COPY OF WHICH IS PLACED AT ANNEXURE-A HERETO. IT IS RESPECTFULLY SUBMITTED THA T IN THE SAID APPLICATION THE APPELLANT HAD GIVEN THE FACTS ABOUT THE DELAY IN FILING THE APPEAL BEING THAT THE APPELLANT WAS MOST LY STAYING AT BOMBAY AND THE OFFICE AT BHAVNAGAR WAS LOOKED AFTER BY APPELLANT'S STAFF. IN THE ABSENCE OF THE APPELLANT THE NOTICE WAS RECEIVED BY THE SECURITY STAFF WHO DO NOT HAVE ANY KNOWLEDGE OF LAW AND DO NOT UNDERSTAND THE IMPORTANCE OF SUCH NOTICE OR COMMUNICATION. THE SECURITY STAFF FORGOTTEN TO HAND OVER COPY OF THE ORDER AND THE APPEAL COULD NOT BE FILED IN T IME. IT WAS ONLY WHEN ON INQUIRY ABOUT THE STATUS OF THE ASSESSMENT THE APPELLANT CAME TO KNOW THAT THE ORDER MAKING HUGE DISALLOWANC ES WAS ALREADY MADE. THE SAME WAS THEREAFTER TRACED OUT FR OM THE SECURITY AND WITH THE DELAY CONDONATION APPLICATION THE APPEAL WAS FILED WITH THE C.I.T. (APPEALS) IMMEDIATELY. TH E LEARNED C.I.T. (APPEALS) HOWEVER REJECTED THE SAID APPEAL BY REJECTING THE PRAYER FOR CONDONATION OF DELAY. IT IS SUBMITTE D THAT THE MERITORIOUS APPEAL OUGHT NOT TO HAVE BEEN DISMISSED WHEN LITIGANT COULD NOT FILE THE APPEAL DUE TO BONAFIDE OMISSION AND OUT OF REASONS BEYOND HIS CONTROL. THE LEARNED C.I. T. (APPEALS) BE DIRECTED TO ENTERTAIN THE APPEAL BY CONDONING TH E DELAY. 2. THE ORDER PASSED BY THE LEARNED C.I.T. (AP PEALS) WITHOUT GIVING PROPER OPPORTUNITY TO THE APPELLANT IS IN VI OLATION OF PRINCIPLES IN NATURAL JUSTICE AND DISMISSAL OF APPE AL IS THEREFORE BAD IN LAW. IT BE SO HELD NOW AND THE ORDER OF C.I. T. (APPEALS) BE SET ASIDE. 3. THE LEARNED C.I.T. (APPEALS) OUGHT TO HAVE HELD THAT THE APPEAL FILED BY THE APPELLANT WAS INVALID. THE SAME BE HELD TO BE VALID APPEAL AND C.I.T. (APPEALS) BE DIRECTED TO HE AR THE SAME ON MERIT. 4. YOUR APPELLANT CRAVES LEAVE TO ADD ALTER AND/OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THE PRES ENT CASE THE ASSESSMENT ORDER WAS PASSED BY THE A.O. ON 29.11.20 07 AND INCOME OF THE ASSESSEE WAS ASSESSED AT RS.81 LACS AS AGAINST INCOME DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME OF RS.68 87 596/-. THE ASSESSEE WAS REQUIRED TO FILE APPEAL BEFORE CIT(A) WITHIN 30 DAY S FROM THE DATE OF I.T.A.NO. 3038 /AHD/2010 3 RECEIPT OF THE ASSESSMENT ORDER ON 6.12.2007 AS HAS BEEN NOTED BY THE CIT(A) IN PARA 3 OF HIS ORDER BUT THE APPEAL WAS FI LED BY THE ASSESSEE BEFORE LD. CIT(A) ON 02.06.2008 I.E. AFTER A DELAY OF 149 DAYS. THE ASSESSEE ALSO FILED AN APPLICATION FOR CONDONATION OF DELAY BEFORE LD. CIT(A) BUT THE CIT(A) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST THIS ORDER OF CIT( A) THE ASSESSEE HAD NOT FILED APPEAL BEFORE THE TRIBUNAL. BUT ASSESSEE FIL ED AN APPLICATION FOR RECTIFICATION U/S 154 BEFORE THE A.O. WHICH WAS DIS MISSED BY THE A.O. AGAINST THIS ORDER OF THE A.O. U/S 154 THE ASSESSE E FILED AN APPEAL BEFORE LD. CIT(A) WHICH WAS DISMISSED BY CIT(A) AS PER HI S ORDER DATED 27.08.2010. THEREAFTER ASSESSEE FILED THIS APPEAL BEFORE THE TRIBUNAL AGAINST THE ORIGINAL ORDER OF LD. CIT(A) DATED 02.0 1.2009. THIS APPEAL IS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL ON 04.11. 2010 I.E. AFTER A DELAY OF 605 DAYS. THE ASSESSEE HAS MADE AN APPLICATION FOR CONDONATION OF DELAY BEFORE THE TRIBUNAL. 3. IT IS THE SUBMISSION OF THE ASSESSEE IN THE APPL ICATION FOR CONDONATION OF DELAY BEFORE THE TRIBUNAL THAT THE O RDER OF LD. CIT(A) DATED 02.01.2009 WAS RECEIVED THROUGH A CHARTERED A CCOUNTANT SHRI RAJIV SETH WHO WAS HANDLING THE WORK OF THE ASSESSEE AND THE ASSESSEE WAS NOT AWARE ABOUT THE LEGAL PROVISIONS AND WAS NOT PROPER LY ADVISED BY THE CONCERNED CA. INSTEAD OF FILING APPEAL BEFORE THE TRIBUNAL THE SAID CA FILED AN APPLICATION U/S 154 BEFORE A.O. WHICH WAS ULTIMATELY DISMISSED BY HIM AND APPEAL AGAINST THAT ORDER WAS DISMISSED BY LD. CIT(A) BY ORDER DATED 27.08.2010. IT IS THE SUBMISSION OF TH E ASSESSEE THAT THE DELAY HAS OCCURRED ON ACCOUNT OF WRONG ADVICE BY THE CA A ND THERE IS NO MALA FIDE INTENTION OF THE ASSESSEE IN DELAYING THE FILI NG OF APPEAL AND HENCE THE DELAY SHOULD BE CONDONED. THE ASSESSEE HAS FUR NISHED AN AFFIDAVIT IN I.T.A.NO. 3038 /AHD/2010 4 SUPPORT OF HIS CONTENTIONS. RELIANCE WAS PLACED O N THE TRIBUNAL DECISION RENDERED IN THE CASE OF ROYAL AIRWAYS LTD. VS ADDL. DIT INTERNATIONAL TAXATION 98 ITD 259 REGARDING CONDONATION OF DELAY. IT WAS SUBMITTED THAT IN THAT CASE IT WAS HELD BY THE TRIBUNAL THAT THE PROVISIONS OF TIME LIMITATION REGARDING FILING OF APPEAL SHOULD BE LIB ERALLY INTERPRETED. 4. REGARDING THE DELAY IN FILING OF APPEAL BEFORE C IT(A) ALSO THE SAME CONTENTIONS WERE RAISED THAT THIS DELAY HAS AL SO OCCURRED BECAUSE OF LAPSES ON THE PART OF THE SAID CA AND NON COOPERATI ON OF THE ACCOUNTANT AND THE DELAY IN FILING APPEAL BEFORE CIT(A) SHOULD ALSO BE CONDONED AND THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF T HE CIT(A) FOR A DECISION ON MERIT. LD. D.R. OF THE REVENUE SUBMITTED THAT T HERE IS NO REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL BEFORE CIT(A) OR BEFORE THE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. REGARDING THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL WE FIND THAT IT IS THE SUBMISSION OF THE ASSESSEE THAT THE DELAY HAS OCCUR RED BECAUSE OF THE WRONG ADVICE BY THE CA WHO HAS FILED AN APPLICATION BEFORE THE A.O. U/S 154 INSTEAD OF FILING THE APPEAL BEFORE THE TRIBUNA L. AFTER THE DISMISSAL OF SUCH APPLICATION FOR RECTIFICATION U/S 154 BY THE A .O. AS WELL AS BY LD. CIT(A) THE ASSESSEE CONSULTED SENIOR CA FIRM AT AH MEDABAD AND THEN HE GOT PROPER ADVICE THAT THE APPEAL WAS REQUIRED TO B E FILED BEFORE THE TRIBUNAL AGAINST THE ORIGINAL ORDER OF LD. CIT(A). IT IS ALSO SUBMITTED BY THE ASSESSEE IN THE AFFIDAVIT THAT HIS INCOME TAX M ATTERS WERE HANDLED BY A LOCAL CA SHRI KEYUR PARIKH ALONG WITH HIS ACCOUNTAN T MR. P PATEL AT BHAVNAGAR WHEREAS THE ASSESSEE HAD SHIFTED TO SURAT AND BECAUSE OF THIS REASON THERE WAS WRONG ADVICE BY THE LOCAL CA IN N OT FILING APPEAL BEFORE THE TRIBUNAL AGAINST THE ORIGINAL ORDER OF C IT(A) AND HE FILED AN I.T.A.NO. 3038 /AHD/2010 5 APPLICATION BEFORE THE A.O. U/S 154. UNDER THIS F ACTUAL POSITION WE FEEL THAT THE DELAY HAS OCCURRED BECAUSE OF THE WRONG AD VICE OF THE CA CONCERNED WHO HAS FILED RECTIFICATION APPLICATION B EFORE THE A.O. U/S 154 INSTEAD OF FILING APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORIGINAL ORDER OF CIT(A). HENCE IT IS SEEN THAT THERE IS NEITHER AN Y INACTION ON THE PART OF THE ASSESSEE NOR ANY MALA FIDE INTENTION IS COMING OUT REGARDING DELAYING TACTIC ETC. AND HENCE WE FEEL THAT IN THE FACTS AN D CIRCUMSTANCES OF THE PRESENT CASE THE DELAY DESERVES TO BE CONDONED AND HENCE WE CONDONE THE DELAY FOR FILING APPEAL BEFORE THE TRIBUNAL. 6. NOW REGARDING DELAY IN FILING APPEAL BEFORE THE CIT(A) IT IS STATED BY THE ASSESSEE IN THE AFFIDAVIT THAT THE APPEAL WA S REQUIRED TO BE FILED BEFORE CIT(A) BY 05.01.2008 SINCE THE ASSESSMENT OR DER WAS RECEIVED ON 06.12.2007 BUT THE APPEAL WAS FILED ON 02.06.2008 I .E. AFTER A DELAY OF 149 DAYS. REGARDING THE REASON FOR THIS DELAY IT WAS SUBMITTED BY THE ASSESSEE IN THE AFFIDAVIT THAT THE DELAY WAS CAUSED FOR THE REASON THAT THE ACCOUNTANT OF THE ASSESSEE SHRI P PATEL WAS HANDLIN G ALL THE ACCOUNTS AND INCOME TAX PAPERS AND EVEN THIS ASSESSMENT ORDER WA S RETAINED BY HIM BECAUSE HE WANTED HIGH SALARY AND FOR THIS REASON ITS RELATION WERE STRAINED. IT IS ALSO SUBMITTED THAT AFTER PROLONGE D DISCUSSION AND NEGOTIATION THE DISPUTE WAS SETTLED AND THEN ONLY HE HANDED OVER THE PAPERS AND COPY OF THE ASSESSMENT ORDER TO THE LOCA L CA SHRI KEYUR PARIKH WHO THEN FILED THE APPEAL BEFORE THE CIT(A). IN SUPPORT OF THIS CONTENTION THE ASSESSEE HAS ALSO FURNISHED COPY OF THE AFFIDAVIT OF THE ACCOUNTANT SHRI PRADEEP P. PATEL. CONSIDERING THES E FACTS WE FEEL THAT THE DELAY IN FILING THE APPEAL BEFORE CIT(A) SHOULD ALSO BE CONDONED IN THE FACTS AND CIRCUSMTNACES OF THE PRESENT CASE. W E THEREFORE CONDONE I.T.A.NO. 3038 /AHD/2010 6 THIS DELAY ALSO AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE CIT(A) FOR A DECISION ON MERIT. 7. IN THE RESULT THE APPEAL FOR THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH SEP. 2011. SD./- SD./- (T. K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 09.09. 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD BY ORDER 6. THE GUARD FILE AR ITAT AHMEDABAD 1. DATE OF DICTATION 06/09 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/09 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 8/9 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 09.09.2011 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 09/09 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.09.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..