LATE SHRI JHAMU SUGHAND LEGAL HEIR SMT PUSHPA JHMU SUGHAND, MUMBAI v. DCIT CEN CIR 13, MUMBAI

ITA 4042/MUM/2011 | 2000-2001
Pronouncement Date: 27-07-2012 | Result: Partly Allowed

Appeal Details

RSA Number 404219914 RSA 2011
Assessee PAN AAJPS0695L
Bench Mumbai
Appeal Number ITA 4042/MUM/2011
Duration Of Justice 1 year(s) 2 month(s) 11 day(s)
Appellant LATE SHRI JHAMU SUGHAND LEGAL HEIR SMT PUSHPA JHMU SUGHAND, MUMBAI
Respondent DCIT CEN CIR 13, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted J
Tribunal Order Date 27-07-2012
Date Of Final Hearing 23-07-2012
Next Hearing Date 23-07-2012
Assessment Year 2000-2001
Appeal Filed On 16-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI G E VEERABHADRAPPA PRESIDENT & SHRI VIJ AY PAL RAO JM ITA NO. 4042/MUM/2011 (ASST YEAR 2000-01 ) LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 17/6 RAM KRISHNA CHS LTD JUHU MUMBAI 400 022 VS THE DY COMMR OF INCOME TAX CEN CIR 13 MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAJPS0695L ASSESSEE BY SHRI R PRASAD RAO REVENUE BY SHRI AMARDEEP DT.OF HEARING 23 RD JULY 2012 DT OF PRONOUNCEMENT 27 TH JULY 2012 PER VIJAY PAL RAO JM THIS APPEAL BY THE LEGAL HEIR OF LATE SHRI JHAMU S UGHAND (THE ASSESSEE) IS DIRECTED AGAINST THE ORDER DATED 29.4.2011 OF THE C OMMISSIONER OF INCOME TAX(APPEALS) ARISING FROM THE PENALTY ORDER PASSED U/S 271(1)(C ) OF THE I T ACT FOR THE ASSESSMENT YEAR 2000-01. 2 THE SOLITARY GROUND RAISED BY THE ASSESSEE IS AS UNDER: 1. THE HONBLE CIT (A)-3 MUMBAI SERIOUSLY ERRED IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN NOT CONDONING G ENUINE AND BONAFIDE DELAY OF APPX 4 YEARS IN FILLING AN APPEAL AGAINST AN IMPUGNED ORDER DATED 27.02.2006 PASSED U/S 271(I)(C) OF THE ACT WITHOUT APPRECIATING THE VEHEMENT AND DETAILED ARGUMENTS AND PLEADINGS PLACE D ON RECORD. IN VIEW OF THE BONAFIDE HONEST TRUTHFUL BELIEF AND TRUST ON THE PART OF YOUR APPELLANT ON HIS REPRESENTATIVES AND THE CIRCUMSTANCES BEING B EYOND THE CONTROL OF YOUR APPELLANT WHICH HAS CAUSED THE UNINTENDED UNI NFORMED AND INADVERTENT DELAY THE HONBLE CIT(A)-3 MUMBAI OUGH T TO HAVE CONDONED THE DELAY. THE HONBLE CIT (A) 3 MUMBAI BE DIRECT ED TO CONDONE THE ITA NO.4042/M/2011 LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 2 DELAY AND THE IMPUGNED PENALTY APPEAL PREFERRED BY YO UR APPELLANT BE DIRECTED TO BE ADMITTED AND DISPOSED OFF ON MERITS. 3 THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS A GAINST REJECTION OF CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E CIT(A). 3.1 THERE WAS A DELAY OF FOUR YEARS IN FILING THE A PPEAL BEFORE THE CIT(A) AGAINST THE PENALTY ORDER DATED 27.2.2006 PASSED U/S 271(1) (C) OF THE I T ACT. SINCE THE ASSESSEE DIED ON 26.5.2008 THE APPEAL WAS FILED BY THE LEGAL HEIR OF THE ASSESSEE THROUGH MRS PUSHPA SUGHAND THE WIFE OF LATE SHRI J HAMU SUGHAND. A PETITION FOR CONDONATION OF DELAY WAS FILED BEFORE THE CIT(A) EXPLAINING THE REASONS FOR THE DELAY IN FILING THE APPEAL. IT WAS MAINLY CONTENDE D THAT THE ASSESSEE LATE SHRI JHAMU SUGHAND WAS CONTINUOUSLY SUFFERING FROM ILL H EALTH AND ALSO FINANCIAL CRISES DURING THE RELEVANT PERIOD; THEREFORE HE COULD NOT TAKE THE STEPS TO FILE THE APPEAL IN TIME AND FINALLY HE PASSED AWAY ON 26 TH MAY 2008. THE LEGAL HEIR OF THE ASSESSEE HAS FILED THE MEDICAL HISTORY OF THE ASSESSEE AND P LEADED BEFORE THE CIT(A) THAT THE DELAY IN FILING THE APPEAL MAY BE CONDONED AS THE S AME WAS DUE TO INADVERTENT AND CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSE E AS WELL AS THE LEGAL HEIR. IT WAS ALSO EXPLAINED BEFORE THE CIT(A) THAT AFTER THE DEATH OF SHRI JHAMU SUGHAND THE FAMILY IS ON THE CROSS ROADS OF LEGAL SUITS C LAIMS AND DEMANDS FROM ALL SEGMENTS AND STRUGGLING TO EARN INCOME FOR SURVIVAL. 3.2 THE LD COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT SATISFIED WITH THE EXPLANATION OF THE LEGAL HEIR OF THE ASSESSEE FOR D ELAY IN FILING THE APPEAL; ACCORDINGLY REJECTED THE REQUEST FOR CONDONATION O F DELAY AND CONSEQUENTLY THE APPEAL WAS DISMISSED IN LIMINE. 4 BEFORE US THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT IN THE LAST DAYS OF LIFE LATE SHRI JHAMU SUGHAND WAS TRYING TO SAIL A SINKIN G SHIP OF FINANCES AND BUSINESS. HE ITA NO.4042/M/2011 LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 3 HAS FURTHER SUBMITTED THAT HE WAS HARD PRESSED TO H AVE QUALITY TEAM OF PEOPLE OF ACCOUNTS TAX AND OTHER STATUTORY LEGAL OBLIGATION S. HE HAS FURTHER SUBMITTED THAT HE WAS SUFFERING FROM SERIES OF AILMENTS AND THEREFORE CONTINUOUSLY UNDER MEDAL TREATMENT FOR A LONG PERIOD AND ULTIMATELY DIED ON 26 TH MAY 2008. HE HAS REFERRED THE MEDICAL RECORDS OF LATE SHRI JHAMU SUGHAND AND SUBMITTED THAT HE WAS NOT IN A CONDITION TO DEAL WITH HIS WORK AND OTHER MATTERS A ND THEREFORE HE COULD NOT FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. AFTER HIS DEATH THE LEGAL HEIR I.E THE WIFE OF LATE SHRI JHAMU SUGHAND AND TWO MINOR CHILDREN WERE FINDING FOR THEIR SUBSTANCE AND ALSO FACING LOT OF LITIGATION FILED BY THE VARI OUS PARTIES. THUS IN THOSE CIRCUMSTANCES THERE WAS A DELAY IN FILING THE APPE AL. 4.1 THE LD AR HAS THUS CONTENDED THAT THE ASSESSEE HAS EXPLAINED THE SUFFICIENT CAUSE FOR THE DELAY; BUT THE COMMISSIONER OF INCOME TAX(APPEALS) DID NOT APPRECIATE THE SAME AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE . THUS THE LD AR HAS PLEADED THAT THE DELAY MAY BE CONDONED A ND THE MATTER MAY BE REMANDED TO THE RECORDS OF THE COMMISSIONER OF INCO ME TAX(APPEALS) FOR DECIDING THE SAME ON MERITS. 4.2 ON THE OTHER HAND THE LD DR HAS VEHEMENTLY OPP OSED THE CONDONATION OF DELAY AND SUBMITTED THAT NO SATISFACTORY EXPLANATIO N WAS FURNISHED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HE HAS REFERRED THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) A ND SUBMITTED THAT THE ASSESSEE FAILED TO EXPLAINED THE REASONABLE AND SUFFICIENT C AUSE FOR NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION; THEREFORE THE CIT (A) IS JUSTIFIED IN REJECTING THE PETITION FOR CONDONATION OF DELAY. THE LD DR HAS FURTHER CON TENDED THAT THE ASSESSEE HAS TO ITA NO.4042/M/2011 LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 4 EXPLAIN THE DAY-TODAY DELAY IN FILING THE APPEAL. EVEN AFTER THE DEATH OF SHRI JHAMU SUGHAND THERE IS DELAY OF TWO YEARS WHICH HAS NOT BEEN EXPLAINED BY THE LEGAL HEIR OF THE ASSESSEE. IN SUPPORT OF HIS CONTENTION HE H AS RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE REPORTED AIR 1962 (SC) 361 71/399 4.3 IN REBUTTAL THE LD AR HAS SUBMITTED THAT IN TH IS CASE THE TRIBUNAL MAY TAKE A LENIENT VIEW WHILE CONDONING THE DELAY IN FILING TH E APPEAL KEEPING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE. HE HAS FURTHER SUBMITT ED THAT AFTER THE DEATH OF SHRI JHAMU SUGHAND HIS WIFE AND TWO MINOR CHILDREN WERE STRUGGLING AND FACING VARIOUS LITIGATIONS AND STRUGGLING FOR SUBSISTENCE. 5 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S LD DR AND CONSIDERED THE RELEVANT MATERIAL AVAILABLE ON RECORD FOR CONDONATI ON OF DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS). FR OM THE MEDICAL HISTORY OF LATE SHRI JHAMU SUGHAND IT IS EVIDENT THAT HE WAS SUFFE RING FROM VARIOUS AILMENTS RIGHT FROM THE YEAR 1997. HE WAS FREQUENTLY ADMITTED IN THE HOSPITAL FROM 2005 TILL HIS DEATH IN THE YEAR 2008. HE WAS ADMITTED ABOUT 8 T O 9 TIMES IN THE HOSPITAL WHICH SHOWS THAT THE ASSESSEE WAS SUFFERING FROM SERIOUS AILMENTS AND CONTINUOUSLY UNDER MEDICAL TREATMENT TILL HE DIED. 5.1 IT IS PENITENT TO NOTE THAT WHEN THE ASSESSEE H IMSELF IS NO MORE THEN THE LEGAL HEIRS OF THE ASSESSEE ARE NOT EXPECTED TO BRING OUT EACH AND EVERY REASONS WHICH MIGHT HAVE BEEN THE CAUSE FOR DELAY IN FILING THE A PPEAL DURING THE LIFE TIME OF THE ASSESSEE. THEREFORE WHILE INTERPRETING SUFFICIENT CAUSE LENIENT VIEW HAS TO BE TAKEN IN SUCH A CASE WHERE THE APPEAL HAS BEEN FILED AND REPRESENTED BY THE LEGAL HEIRS AFTER THE DEATH OF THE ASSESSEE. ITA NO.4042/M/2011 LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 5 5.2 IT IS SETTLED PROPOSITION OF LAW THAT THE COURT SHOULD TAKE A LENIENT VIEW ON THE MATTER OF CONDONATION OF DELAY. THE FACTS AND CIRCU MSTANCES OF THE CASE DO NOT SUGGEST THAT THE ASSESSEE HAD ACTED IN A MALAFIDE MANNER OR REASONS EXPLAINED BY THE LEGAL HEIR ARE ONLY A DEVICE TO COVER AN ULTERI OR PURPOSE. THEREFORE WHEN THE EXPLANATION AND THE REASON FOR DELAY ARE BONAFIDE A ND NOT MERELY A DEVICE TO COVER AN ULTERIOR PURPOSE OR AN ATTEMPT TO SAVE LIM ITATION IN AN UNDERHAND WAY THEN THE COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND SHOULD LEAN IN FAVOUR OF SUCH PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE OPPOSED TO EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED. 6 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF T HE CASE WE ARE SATISFIED THAT THE ASSESSEE HAS EXPLAINED THE SUFFICIENT CAU SE FOR NOT FILING THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WITHIN TH E PERIOD OF LIMITATION. WHEN THE REASONS EXPLAINED BY THE ASSESSEE ARE NOT FOUND A S MALAFIDE OR A DEVICE TO COVER AN ULTERIOR PURPOSE THEN IN THE INTEREST OF JUSTIC E WE CONDONE THE DELAY OF FOUR YEARS IN FILING THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE MATTER IS ACCORDINGLY REMANDED TO BE RECORD OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR DECIDING THE SAME ON MERITS. 7 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH DAY OF JULY 2012. SD/- SD/- ( G E VEERABHADRAPPA ) PRESIDENT ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH JULY 2012 ITA NO.4042/M/2011 LATE SHRI JHAMU SUGHAND L/H SMT PUSHPA JHAMU SUGHAND 6 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI