Mrs. Neeru Anand, New Delhi v. ITO, New Delhi

ITA 409/DEL/2009 | 2001-2002
Pronouncement Date: 08-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 40920114 RSA 2009
Assessee PAN AALPA1276B
Bench Delhi
Appeal Number ITA 409/DEL/2009
Duration Of Justice 11 month(s) 5 day(s)
Appellant Mrs. Neeru Anand, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 08-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 08-01-2010
Date Of Final Hearing 22-12-2009
Next Hearing Date 22-12-2009
Assessment Year 2001-2002
Appeal Filed On 03-02-2009
Judgment Text
I.T.A. NO. 409 /DEL/2009 1/7 IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH E BEFORE SHRI K G BANSAL ACCOUTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER ITA NO.409 /DEL/2009 (ASSESSMENT YEAR 2001-02) MS. NEERU ANAND VS. ITO WARD 5(1) A-1 MODEL TOWN NEW DELHI PART-1 NEW DELHI (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AALPA1276B APPELLANT BY: SHRI DEEPAK GULATI CA RESPONDENT BY: SHRI M K GAUTAM CIT DR ORDER PER GEORGE MATHAN JM: 1. THIS APPEAL BY THE ASSESSEE HAS BEEN PREFERRED A GAINST THE ORDER OF CIT(A) VIII NEW DELHI IN APPEAL NO.66/2008-09 DATED 23.01.2009 FOR THE ASSESSMENT YEAR 2001-02. SHRI DEEPAK GULATI CA REPRESENTED F OR THE ASSESSEE AND SHRI M K GAUTAM CIT DR REPRESENTE D FOR THE REVENUE. 2. IT WAS THE SUBMISSION BY THE LD. A.R. THAT THE A SSESSEE IS A WIDOW WHO WAS A SHAREHOLDER IN M/S. TYAGI ANAN D & CO. PVT. LTD. IT WAS THE SUBMISSION THAT SHE HAD SOLD THE SHAREHOLDING DURING THE ASSESSMENT YEAR 2001-02 I.T.A. NO. 409 /DEL/2009 2/7 AND HAD DECLARED CAPITAL GAIN. THE ASSESSMENT HAD BEEN COMPLETED U/S 143(3) WHEREIN THE RETURNED INCOME HA D BEEN ACCEPTED. THE SAME WAS SUBJECT TO REVISION U/ S 263 AND THE ASSESSMENT ORDER WAS SET ASIDE VIDE ORD ER PASSED U/S 263 DATED 05.03.2005. IT WAS THE SUBMIS SION THAT THE ORDER PASSED U/S 263 WAS NOT APPEALED AGAI NST. IT WAS THE FURTHER SUBMISSION THAT THE CONSEQUENTIA L ASSESSMENT U/S 143(3) READ WITH SECTION 263 WAS PAS SED ON 27.03.2006. IT WAS THE SUBMISSION THAT THE ASSE SSEE HAD BEEN ADVISED BY HER AUDITORS THAT APPEAL NEED N OT BE FILED AGAINST THE SAID ORDER ALSO AND CONSEQUENT LY THE APPEAL HAD ORIGINALLY NOT BEEN FILED. IT WAS THE F URTHER SUBMISSION THAT IN THE ORDER PASSED U/S 143(3) READ WITH SECTION 263 ON 27.03.2006 THE FIRMS PROPERTIES HAD BEEN REVALUED AS ALSO THE INVESTMENT MADE BY THE ASSESSEE IN THE FIXED DEPOSITS WHICH HAD BEEN TREAT ED AS ELIGIBLE FOR EXEMPTION U/S 54F. IT WAS THE SUBM ISSION THAT THE ASSESSEE HAD FILED AN APPLICATION U/S 154 ON 28.09.2006 AND THE SAME HAS BEEN REJECTED VIDE ORDE R DATED 09.11.2006. IT WAS THE SUBMISSION THAT SUBSEQUENTLY THE ASSESSMENT FOR THE ASSESSMENT YEA R 2004-05 CAME TO BE COMPLETED ON 28.12.2007 WHEREIN THE BENEFIT U/S 54F GRANTED TO THE ASSESSEE IN THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2001-02 HA D BEEN BROUGHT TO TAX ON THE GROUND THAT THE ASSESSEE HAD I.T.A. NO. 409 /DEL/2009 3/7 NOT INVESTED IN THE PURCHASE OR CONSTRUCTION OF ANO THER RESIDENTIAL PROPERTY. IT WAS THE SUBMISSION THAT A T THIS POINT OF TIME THE ASSESSEE HAD CONTACTED HER AUDIT ORS AND THE EARLIER AUDITORS OF THE ASSESSEE BEING SHRI B B KALIA HAD BEEN CHANGED AND THE NEW AUDITORS HAD BE EN APPOINTED IN SEP. 2008. IT WAS THE SUBMISSION THAT THE NEW AUDITORS HAD ADVISED THE ASSESSEE THAT THE APPE AL WAS REQUIRED TO BE FILED AGAINST THE ASSESSMENT ORD ER PASSED U/S 1434(3) READ WITH SECTION 263 AND CONSEQUENTLY THE SAME WAS FILED WITH A DELAY OF NE ARLY 31 MONTHS. IT WAS THE SUBMISSION THAT THE LD. CIT (A) HAD NOT CONDONED THE DELAY IN FILING THE APPEAL. I T WAS THE SUBMISSION THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN SO FAR AS THE ASSESSEE HAD NOT BEEN ADVISED PROPERLY BY HER COUNSEL IN RESPECT OF FILIN G THE APPEAL. IT WAS THE SUBMISSION THAT FOR THE ASSESSM ENT YEAR 2004-05 THE ASSESSEE HAD FILED AN APPEAL AND IT WAS ONLY ON ACCOUNT OF WRONG ADVICE GIVEN TO THE ASSESSEE THE ASSESSEE HAD NOT FILED THE APPEAL FOR THE ASSESSMENT YEAR 2001-02. IT WAS THE SUBMISSION THA T THE DELAY IN FILING THE APPEAL MAY BE CONDONED AND THE ISSUE IN THE APPEAL RESTORED TO THE FILE OF THE CIT (A) FOR ADJUDICATION ON MERITS. 3. IN REPLY THE LD. D.R. SUBMITTED THAT THE ASSESS EE WAS WELL AWARE OF HER RIGHTS AND DUTIES IN SO FAR AS TH E I.T.A. NO. 409 /DEL/2009 4/7 ASSESSEE HAD FILED HER RETURN OF INCOME ON TIME. S HE HAD FILED APPEAL FOR THE ASSESSMENT YEAR 2004-05 AN D THE FACT THAT FOR THE ASSESSMENT YEAR 2001-02 NO AP PEAL HAD BEEN FILED WAS A CONSCIOUS DECISION AND THE ACT ION OF THE LD. CIT(A) IN DISMISSING THE APPEAL IN LIMIN E BY NOT CONDONING THE DELAY WAS LIABLE TO BE UPHELD. I T WAS THE SUBMISSION THAT EVEN THE ORDER PASSED U/S 263 H AD NOT BEEN CHALLENGED WHICH IS A CONSCIOUS DECISION A ND CONSEQUENTLY THE DELAY WAS NOT LIABLE TO BE CONDONE D AND THE ORDER OF CIT(A) DISMISSING THE APPEAL IN LI MINE WAS LIABLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE F ACTS OF THIS CASE SHOW THAT FOR THE ASSESSMENT YEAR 2001-02 THE ASSESSEE HAD FILED HER RETURN OF INCOME ON 31.03.2002 AND THE ASSESSMENT ORDER ORIGINALLY WAS COMPLETED U/S 143(3) ON 27.02.2004 ACCEPTING THE RETURNED INCOME. REVISION HAVE BEEN DONE U/S 263 V IDE ORDER DATED 15.03.2005 AND CONSEQUENTLY THE ASSESSMENT U/S 143(3) READ WITH SECTION 263 CAME TO BE PASSED ON 27.03.2006. THE RETURN FOR THE ASSESSMEN T YEAR 2004-05 CAME TO BE FILED ON 29.07.2004 AND ASSESSMENT FOR THE ASSESSMENT YEAR 2004-05 CAME TO BE COMPLETED ON 28.12.2007 U/S 144. THE APPEAL AGAINST THE ASSESSMENT ORDER U/S 144 FOR THE ASSESS MENT YEAR 2004-05 CAME TO BE FILED ON 29.01.2008 BEFORE THE I.T.A. NO. 409 /DEL/2009 5/7 CIT(A). THE RECTIFICATION U/S 154 FOR THE ASSESSME NT YEAR 2001-02 AGAINST THE ORDER DATED 27.03.2006 CAM E TO BE FILED ON 28.09.2006 AND THE ORDER U/S 154 CAM E TO BE PASSED ON 09.11.2006. THE ASSESSEE HAS CLAIMED TO HAVE CHANGED HER AUDITORS IN SEP. 2008. IF THESE F ACTS ARE SEEN ALONG WITH THE ORDER WHICH HAS BEEN PASSED IT IS NOTICE THAT WHEN THE ASSESSMENT U/S 143(3) CAME TO BE PASSED IN THE CASE OF THE ASSESSEE FOR THE ORIGI NAL ASSESSMENT ORDER U/S 143(3) DATED 27.02.2004 IT IS NOTICED THAT SHRI B B KALIA CA REPRESENTED ON BEHAL F OF THE ASSESSEE. IN SECTION 263 PROCEEDINGS ALSO IT I S NOTICED THAT SHRI B B KALIA CA REPRESENTED ON BEHA LF OF THE ASSESSEE. IT IS FURTHER NOTICED THAT APPLIC ATION U/S 154 HAS BEEN FILED ON BEHALF OF THE ASSESSEE ON 28.09.2006 BY SHRI B B KALIA. IT IS ALSO NOTICED T HAT THE ORDER U/S 154 HAS BEEN PASSED REJECTING THE ASSESSE ES CLAIM SHOWS THAT THE ASSESSEE DID CHALLENGED THE IS SUE IN THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 200 1- 02 THOUGH U/S 154. IT IS FURTHER NOTICED THAT THE APPLICATION U/S 154 HAS BEEN SIGNED BY SHRI B B KAL IA HIMSELF. HOW AN AUTHORIZED REPRESENTATIVE CAN FILE AN APPLICATION FOR RECTIFICATION ON BEHALF OF THE ASSE SSEE UNDER HIS OWN SIGNATURES IS NOT UNDERSTOOD. HOWEVE R THE FACT THAT THE AUDITORS HAS ATTEMPTED TO FILE TH E RECTIFICATION OF THE ASSESSMENT ORDER SHOWS THAT TH E I.T.A. NO. 409 /DEL/2009 6/7 INTENTION IS THERE FOR CHALLENGING THE ASSESSMENT. THEREFORE IT CANNOT BE SAID THAT THE DELAY IN FILI NG THE APPEAL WAS NOT BONA FIDE. FURTHER THE FACT THAT T HE AUDITORS HAVE FILED 154 APPLICATION COULD ALSO BE S EEN AS AN ATTEMPT TO CORRECT THE MISTAKE DONE BY THE AUDIT ORS IN THE ADVICE GIVEN TO THE ASSESSEE. THE FACT THAT T HE AUDITORS HAVE ALSO BEEN CHANGED AND THE NEW AUDITOR S HAVE BEEN APPOINTED IS ALSO EVIDENT FROM THE FACT THAT THE ASSESSEE HAS SPECIFICALLY STATED IN HER SUBMISS IONS BEFORE THE LD. CIT(A). FURTHER JUST BECAUSE THE ASSESSEE FILED HER RETURN ON TIME IT CANNOT BE SAI D THAT THE ASSESSEE IS WELL VERSED IN THE TAXATION LAWS OR TAXATION ISSUES. THE KNOWLEDGE OF TAXATION LAWS IS NOT SOMETHING THAT CAN BE TAKEN FOR GRANTED. THE TAXAT ION LAWS WHICH UNDERGO AMENDMENTS YEAR IN AND YEAR OUT ARE SUBSTANTIALLY INTRICATE AND COMPLEX AND THE KNOWLEDGE OF SUCH INTRICATE AND COMPLEX LAWS IS NOT SOMETHING WHICH CAN BE DEEMED TO BE IN THE KNOWLEDG E OF EVERY TAX PAYER. WHEN ONE IS FACED WITH TECHNICALITIES ON ONE SIDE AND MERITS ON ANOTHER T HE TECHNICALITY SHOULD GIVE A WAY TO MERIT. BY CONDON ING THIS DELAY IN FILING THIS APPEAL AND DECIDING THE A PPEAL ON MERITS NO LOSS CAN BE CAUSED TO THE REVENUE. I N FACT GRANTING JUSTICE AS ALWAYS BEING THE DUTY OF THE GOVERNMENT JUST BECAUSE AN ASSESSEE SUCCEEDS IN AN I.T.A. NO. 409 /DEL/2009 7/7 APPEAL IT DOES NOT MEAN THAT THE GOVERNMENT OR THE REVENUE HAS LOST ANYTHING. IN FACT IF AN ASSESSEE IS TAXED ON THE CORRECT INCOME JUSTICE IS DONE AND GIVING J USTICE IS THE DUTY OF THE GOVERNMENT AS ALSO THE COURT AND ALSO THE QUASI-JUDICIAL AUTHORITIES. IN THESE CIRCUMSTA NCES AS IT IS NOTICED THAT THE ASSESSEE DOES HAVE BONA FIDE REASON FOR THE DELAY IN FILING THE APPEAL WE ARE OF THE V IEW THAT THE DELAY OF 31 MONTHS IN FILING THIS APPEAL MUST B E CONDONED AND WE DO SO. IN THESE CIRCUMSTANCES THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) IS CON DONED AND THE ISSUE AS RAISED IN THIS APPEAL ON MERIT ARE RESTORED TO THE FILE OF THE CIT(A) FOR DECISION ON MERITS. IN THESE CIRCUMSTANCES THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 08 TH JAN. 2010. SD./- SD./- (K. G. BANSAL) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:08 TH JAN. 2010. SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI