JST REALTY P LTD, MUMBAI v. DCIT 10(1), MUMBAI

ITA 4170/MUM/2012 | 2008-2009
Pronouncement Date: 23-10-2013 | Result: Allowed

Appeal Details

RSA Number 417019914 RSA 2012
Assessee PAN AACCD0500D
Bench Mumbai
Appeal Number ITA 4170/MUM/2012
Duration Of Justice 1 year(s) 4 month(s) 10 day(s)
Appellant JST REALTY P LTD, MUMBAI
Respondent DCIT 10(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 23-10-2013
Date Of Final Hearing 18-09-2013
Next Hearing Date 18-09-2013
Assessment Year 2008-2009
Appeal Filed On 13-06-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL J JJ J BENCH BENCH BENCH BENCH MUMBAI MUMBAI MUMBAI MUMBAI . . . ! ! ! ! ' ' ' ' #$ #$ #$ #$ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO JM VIJAY PAL RAO JM VIJAY PAL RAO JM VIJAY PAL RAO JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA AM AM AM AM ./ I.T.A I.T.A I.T.A I.T.A. NO. . NO. . NO. . NO.4170/MUM/2012 4170/MUM/2012 4170/MUM/2012 4170/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR :2008-09) M/S JST REALTY (P) LTD. 6 TH FLOOR DHEERAJ ARMA AANANT KANEKAR ROAD STATION ROAD BANDRA (E) MUMBAI-400051 / VS. COMMISSIONER OF INCOME TAX(APPEALS)-21 $' ' ./ ( ./ PAN/GIR NO. :AACCD0500D ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) $ $ $ $ - . - . - . - . / REVENUE BY : SHRI SANJEEV JAIN % %% % /0 /0 /0 /0 - . - . - . - . /ASSESSEE BY : SHRI BIKASH KUMAR BOGI - -- - 0' 0' 0' 0' / DATE OF HEARING : 17 TH OCTOBER 2013 12& 12&12& 12& - -- -0' 0' 0' 0' /DATE OF PRONOUNCEMENT: 23 RD OCTOBER 2013 #3 / O R D E R PER : . . / VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 10.4.2012 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN DISMISSING THE APPEAL FILED BY YOUR APPELLANT WITHO UT CONDONING THE DELAY IN FILING OF APPEAL. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN DISMISSING THE APPEAL COMPLETELY IGNORING THE F ACT THAT THERE WAS REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL FOR WHICH DELAY SHOULD HAVE BEEN CONDONED AND THE APPEAL SHOU LD HAVE BEEN DECIDED ON MERITS. ITA NO.4170/M/2012 JST REALTY P. LTD. 2 3. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE I NCOME TAX ACT ON 21.4.2010. THE ASSESSMENT ORDER WAS SERVED UPON THE ASSESSEE ON 30.4.2010. THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) ON 30.12.2011 WHICH WAS DELAYED BY ABOUT 1 YEARS. THE ASSESSEE S OUGHT CONDONATION OF DELAY IN FILING THE APPEAL BEFORE CIT(A) AND EXP LAIN THE DELAY BY FILING AN AFFIDAVIT. THE CIT(A) DID NOT ACCEPT THE EXPLANA TION OF THE ASSESSEE FOR DELAY IN FILING THE APPEAL AND ACCORDINGLY THE APPE AL OF THE ASSESSEE WAS DISMISSED BEING BARRED BY LIMITATION WITHOUT GOING INTO MERITS. 4. BEFORE US THE LD. AR OF THE ASSESSEE HAS SUBMITT ED THAT THE DELAY IN FILING THE APPEAL BEFORE CIT(A) WAS DUE TO MIXING-U P OF PAPERS OF THE ASSESSEE WITH OTHER PAPERS IN THE OFFICER OF M/S MA HESH TEJWANI ASSOCIATES CHARTERED ACCOUNTANTS OF THE ASSESSEE. THE LD. AR HAS SUBMITTED THAT THE ASSESSEE HANDED OVER ALL THE PAP ERS INCLUDING THE ASSESSMENT ORDER TO ITS REPRESENTATIVE/CHARTERED AC COUNTANT FOR FILING THE APPEAL HOWEVER DUE TO MIXING UP AND MISPLACEMENT OF THE PAPERS IN THE OFFICE OF CHARTERED ACCOUNTANT THE APPEAL COULD NOT BE FILED IN TIME AND ONLY WHEN THE CHARTERED ACCOUNTANT OF THE ASSESSEE COULD LAY HAND ON THE PAPERS IN THE MONTHS OF DECEMBER 2011 NECESSARY STEPS WERE TAKEN IMMEDIATELY FOR FILING THE APPEAL. THUS THE LD. AR HAS SUBMITTED THAT THE DELAY IN FILING THE APPEAL IS NEITHER INTENTIONAL N OR DELIBERATE BUT DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. THE LD. AR OF THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF MR. MAHESH TEJWANI CHARTERED ACCOUNTANT THE PROPRIETOR OF M/S MAHESH TEJWANI & A SSOCIATES IN SUPPORT OF THE EXPLANATION FOR DELAY IN FILING THE APPEAL. THUS THE LD. AR HAS ITA NO.4170/M/2012 JST REALTY P. LTD. 3 PLEADED THE DELAY IN FILING THE APPEAL MAY BE CONDO NED AND THE MATTER MAY BE REMITTED TO THE RECORD OF THE CIT(A) FOR DEC IDE THE APPEAL OF THE ASSESSEE ON MERITS. ON THE OTHER HAND THE LD. DR H AS VEHEMENTLY OPPOSED THE CONDONATION OF DELAY AND SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE INORDINATE DELAY IN FILING TH E APPEAL. HE HAS RELIED UPON THE ORDER OF THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS A DELAY OF MO RE THAN 1 YEARS IN FILING THE APPEAL BEFORE THE CIT(A). THE ASSESSEE H AS EXPLAINED THE REASONS AND CAUSE OF DELAY THAT THE PAPERS OF THE A SSESSEES CASE GOT MIXED-UP WITH THE OTHER PAPERS IN THE OFFICE OF ITS CHARTERED ACCOUNTANT. IN SUPPORT OF THE EXPLANATION AN AFFIDAVIT OF CHART ERED ACCOUNTANT HAS BEEN FILED. THOUGH THE POSSIBILITY OF MIXING UP THE PAPERS OF THE ASSESSEES CASE WITH OTHER PAPERS MAY NOT BE RULED OUT HOWEVER THE ASSESSEE IS ALSO NEGLIGENT IN NOT TAKING THE FOLLOW UP STEPS TO SIGN AND TO ASCERTAIN WHETHER THE APPEAL IN THE CASE OF THE ASS ESSEE HAS BEEN FILED OR NOT AND THAT TOO FOR A LONG PERIOD OF 1 YEARS. THE REFORE THERE IS NEGLIGENCY ON THE PART OF THE ASSESSEE FOR NOT TAKI NG THE STEPS IN TIME TO ASCERTAIN WHETHER THE APPEAL IN THE CASE OF THE ASS ESSEE HAS BEEN ACTUALLY FILED OR NOT. HOWEVER IT IS ALWAYS A QUES TION WHETHER THE EXPLANATION AND REASONS FOR DELAY ARE BONAFIDE OR I S MERELY DEVICE TO COVER AN ULTERIOR PURPOSE SUCH AS AN ATTEMPT TO SAV E LIMITATION IN UNDER HAND WAY. WHEN THERE IS NOTHING ON RECORD TO SHOW T HAT THE ASSESSEE HAS ACTED IN MALAFIDE AND THE REASONS EXPLAINED BY THE ASSESSEE ARE FACTUALLY ITA NO.4170/M/2012 JST REALTY P. LTD. 4 CORRECT THEN THE COURT SHOULD BE LIBERAL IN CONSTRU ING THE SUFFICIENT CAUSE IN THE MATTER OF CONDONATION OF DELAY. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE WE CONDONE THE DELAY OF 1 YEARS IN FILING THE APPEAL BEFORE CIT(A ) SUBJECT TO THE COST OF ` 10 000/-. SINCE THE CIT(A) HAS NOT DECIDED THE APPE AL ON MERITS THEREFORE THE MATTER IS SET ASIDE TO THE RECORD OF THE CIT(A) FOR DECIDE ON MERITS AFTER GIVING A DUE OPPORTUNITY OF HEARING TO THE AS SESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF OCTOBER 2013 SD/- SD/- ( . . ! ) ' #$ (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) % #$ (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 23 RD OCTOBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI