Satish Kumar Nasa, Faridabad v. ITO, New Delhi

ITA 3637/DEL/2011 | 2005-2006
Pronouncement Date: 25-11-2011 | Result: Allowed

Appeal Details

RSA Number 363720114 RSA 2011
Assessee PAN AADPN5200A
Bench Delhi
Appeal Number ITA 3637/DEL/2011
Duration Of Justice 3 month(s) 30 day(s)
Appellant Satish Kumar Nasa, Faridabad
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 25-11-2011
Date Of Final Hearing 17-11-2011
Next Hearing Date 17-11-2011
Assessment Year 2005-2006
Appeal Filed On 26-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 3637/DEL/2011 ASSESSMENT YEAR: 2005-06 SATISH KUMAR NASA VS. INCOME-TAX OFFICER H.NO. 1071A SECTOR 29 WARD 22(4) FARIDABAD. NEW DELHI. (PAN: AADPN5200A) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI ANOOP SH ARMA & MANU GIRI ADV. RESPONDENT BY: SHRI BRR KUMAR DR DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 25.11.2011 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 08.02.2011 PASSED FOR ASSESSMENT YEAR 2005-06. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE PENALTY OF RS.2 05 841 IMPOSED UNDER SEC. 271(1)(C) OF THE INCOME-TAX ACT 1961. 2. THE REGISTRY HAS POINTED OUT THAT APPEAL IS TIME BARRED BY 98 DAYS. IN ORDER TO EXPLAIN THE DELAY ASSESSEE HAS FILED AN A PPLICATION FOR CONDONATION OF DELAY UNDER SUB-SECTION (5) OF SECTION 253 OF TH E INCOME-TAX ACT 1961 CONTENDING THEREIN THAT HE RECEIVED THE IMPUGNED OR DER ON 18.2.2011. HIS 2 WIFE WAS NOT WELL AND HE WAS IN A DISTURBED STATE O F MIND. IT SLIPPED FROM HIS MIND. IN THE MONTH OF JULY WHEN HE WAS LITTLE RELAX ED AND CAME OUT OF ALL THE FAMILY DISTURBANCES THEN HE REALIZED AND INQUIRED F ROM HIS ADVOCATE ABOUT THE STATUS OF THE APPEAL. IT CAME TO HIS NOTICE THA T IT WAS NOT FILED. HE IMMEDIATELY FILED THE APPEAL. ASSESSEE HAS FILED AN AFFIDAVIT IN SUPPORT OF HIS APPLICATION. HE PRAYED THAT THE DELAY IN FILING THE APPEAL MAY PLEASE BE CONDONED AND HE BE HEARD ON MERIT. LEARNED DR ON TH E OTHER HAND HAS OPPOSED THE PRAYER OF THE ASSESSEE. HE POINTED OUT THAT THE ASSESSEE SHOULD BE VIGILANT IN PROSECUTING HIS INCOME-TAX APPEALS E TC. HE FURTHER SUBMITTED THAT ASSESSEE EVEN DID NOT APPEAR BEFORE THE ASSESS ING OFFICER IN THE PENALTY PROCEEDINGS THEREFORE NO SYMPATHY SHOULD BE SHOWN TO THE ASSESSEE. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. FOR THE REASONS STATED IN THE APP LICATION AND SUPPORTED BY THE AFFIDAVIT WE ARE SATISFIED THAT THE ASSESSEE W AS PREVENTED BY SUFFICIENT REASONS FOR NOT FILING THE APPEAL IN TIME BEFORE TH E ITAT. HE HAS POINTED OUT THAT HIS WIFE WAS NOT WELL AND ON ACCOUNT OF DISTUR BED STATES OF AFFAIRS IN THE FAMILY IT SLIPPED FROM HIS MIND WHETHER APPEAL AG AINST THE ORDER OF LEARNED CIT(APPEALS) HAS BEEN FILED OR NOT. IN OUR OPINION IF A CLOSE RELATIVE OF A PERSON MORE PARTICULARLY FAMILY MEMBER NAMELY WIF E WAS SERIOUSLY ILL 3 THEN IT IS BUT NATURAL THAT PERSON MUST BE IN A DIS TURBED STATE OF MIND. HIS PRIMARY OBJECT AT THAT POINT OF TIME IS TO TAKE CAR E OF THE FAMILY MEMBERS AND OTHER PROCEEDINGS BECOME SECONDARY. WE DO NOT SEE A NY MALA FIDE IN THE EXPLANATION OF THE ASSESSEE AND WE ARE OF THE VIEW THAT ASSESSEE WILL NOT GAIN ANYTHING BY DELAYING HIS APPEAL THEREFORE WE COND ONE THE DELAY AND PROCEED TO DECIDE THE APPEAL ON MERIT. 3. THE BRIEF FACTS WITH REGARD TO IMPOSITION OF PEN ALTY ARE THAT THE ASSESSEE HAS MADE AN INVESTMENT IN A HOUSE PROPERT Y TO THE TUNE OF RS.11 LACS. HE ALLEGED TO HAVE TAKEN A LOAN OF RS.6 86 1 35 FROM ONE SHRI SHAAN-E- ALAM HOWEVER DURING THE ASSESSMENT PROCEEDINGS H E FAILED TO FILE CONFIRMATION WITH REGARD TO THE ALLEGED LOAN AND AS SESSING OFFICER HAS MADE AN ADDITION OF RS.6 86 135. APPEAL TO THE LEARNED C IT(APPEALS) AGAINST THIS ADDITION DID NOT BRING ANY RELIED TO THE ASSESSEE. BEFORE THE ITAT ASSESSEE HAS CONTENDED THAT IN FACT HE HAS NOT TAKEN ANY L OAN AND HE HAS CLARIFIED HIS POSITION WHILE FILING A REVISED RETURN IN WARD NO.1 (2) FARIDABAD ON 31.3.2006. HIS PLEA WAS REJECTED BY THE ITAT ON THE GROUND THAT JURISDICTION OVER THE ASSESSEE LIES IN DELHI AND THERE WAS NO OC CASION TO FILE THE REVISED RETURN AT FARIDABAD. THE FINDINGS OF THE ITAT IN TH E QUANTUM APPEAL IN ITA NO.938/DEL/10 READ AS UNDER: 4 4. WE HAVE CAREFULLY GONE THROUGH THE RECORDS AND CONSIDERED THE RIVAL CONTENTIONS AND ARE UNABLE TO FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE ASSESSEE IS AWARE OF THE A.O. AT DELH I HOLDING CHARGE OVER HIS CASE AND IN FACT HE HAD ATTENDED THE PROCE EDINGS BEFORE THE SAID A.O. AND FILED THE DETAILS WHICH WERE NECESSAR Y FOR HIM FOR COMPLETION OF THE ASSESSMENT. IT IS NOT KNOWN WHY T HE ASSESSEE CHOSE TO FILE A REVISED RETURN BEFORE A DIFFERENT A.O. AT FARIDABAD. WE THEREFORE DO NOT AGREE WITH THE FILING OF THE REVI SED RETURN BEFORE THE A.O. WHO HAS NO JURISDICTION OVER THE ASSESSEE HAS ANY IMPACT AND THE A.O. HAVING JURISDICTION HAS NOT RECEIVED ANY REVIS ED RETURN. WE THEREFORE ARE UNABLE TO ACCEPT THE REQUEST OF THE ASSESSEE. THE ASSESSEE HAS NOT CHALLENGED ANYTHING ON MERIT. WE THEREFORE CONFIRM THE ORDER OF THE CIT(A) ON THE ISSUE. THE APPEAL IS DISMISSED. 4. IN THE PENALTY PROCEEDINGS ASSESSEE HAS REITERA TED HIS CONTENTIONS BEFORE THE LEARNED FIRST APPELLATE AUTHORITY BUT LE ARNED CIT(APPEALS) CONFIRMED THE PENALTY ON THE GROUND THAT ASSESSEE F AILED TO PRODUCE ANY EVIDENCE DEMONSTRATING THE FACT THAT LOAN WAS GENUI NE. 5. BEFORE US LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT IN THE ASSESSMENT PROCEEDINGS ASSESSEE HAS ATTENDED THE O FFICE OF ASSESSING OFFICER AND SUBMITTED THAT HE HAS FILED A REVISED R ETURN BEFORE THE ITO WARD 1(2) FARIDABAD WHEREIN HE HAS EXPLAINED THE POSITI ON OF LOAN. ASSESSING 5 OFFICER DID NOT TAKE COGNIZANCE OF THIS RETURN ON T HE GROUND THAT THE RETURN OUGHT TO BE FILED WITH HIM BECAUSE THE JURISDICTIO N OVER THE ASSESSEE LIES AT ITO WARD 22(4) NEW DELHI. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED FIRST APPELLATE AUTHORIT Y HAS NOT EXAMINED THE ISSUE ON MERIT. THE COGNIZANCE OF THE REVISED RETUR N MAY NOT BE TAKEN ON ACCOUNT OF LACK OF THE JURISDICTION BUT THE MATERIA L IN THE SHAPE OF REVISED RETURN COULD BE CONSIDERED AS A CORROBORATIVE PIECE OF EVIDENCE FOR EXPLAINING THE POSITION OF THE ASSESSEE WITH REGARD TO THE LOAN. HE PRAYED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. LEARNED DR ON THE OTHER HAND OPPOSE D THE PRAYER OF THE ASSESSEE AND SUBMITTED THAT HE FAILED TO BRING RELE VANT MATERIAL ON THE RECORD BEFORE THE ASSESSING OFFICER THEREFORE HE SHOULD NOT BE GRANTED ONE MORE OPPORTUNITY TO EXPLAIN HIS POSITION. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE WITH REGARD T O THE PROPOSITION THAT PENALTY PROCEEDINGS IS INDEPENDENT TO THAT OF ASSES SMENT PROCEEDINGS. IN THE PENALTY PROCEEDINGS ASSESSEE CAN INDEPENDENTLY EST ABLISH THE FACTS THAT EVEN IF AN ADDITION WAS CONFIRMED THE PENALTY DESERVES NOT TO BE IMPOSED. IN THE PRESENT CASE WE FEEL THAT ASSESSEE REMAINED UN DER THE IMPRESSION THAT 6 ONCE REVISED RETURN FILED BY HIM AT FARIDABAD THE ASSESSING OFFICER AT DELHI WILL NOT HAVE ANY JURISDICTION OVER HIM THEREFORE THERE CANNOT BE ANY PENALTY IMPOSEABLE UPON HIM BY ITO WARD 22(4) DEL HI. THIS MISCONCEPTION HAD LED HIM NOT TO SUBMIT THE REQUISI TE EVIDENCE ON THE RECORD DEMONSTRATING THE FACT THAT NO LOAN WAS TAKEN BY HI M. CONSIDERING THE FACTS AND CIRCUMSTANCES WE ARE OF THE VIEW THAT ENDS OF JUSTICE WOULD MEET IF WE PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE FOR EX PLAINING HIS POSITION THEREFORE WE SET ASIDE THE ORDERS OF REVENUE AUTHO RITIES BELOW AND REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT ANY DETAILS IN SUPPORT OF HIS EXPLANATION. IT IS NEEDLESS TO SAY THAT THE OBSERVATIONS MADE BY US WO ULD NOT IMPAIR OR INJURE THE CASE OF A.O. OR WOULD NOT CAUSE ANY PREJUDICE T O THE DEFENCE/EXPLANATION OF THE ASSESSEE. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25/11/2011 MOHAN LAL 7 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR