Manoj Nanubhai Desai, Surat v. The Income tax Officer,Ward-3(3),, Surat

ITA 597/AHD/2011 | 2005-2006
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 59720514 RSA 2011
Assessee PAN AAJPD4474G
Bench Ahmedabad
Appeal Number ITA 597/AHD/2011
Duration Of Justice 6 month(s) 13 day(s)
Appellant Manoj Nanubhai Desai, Surat
Respondent The Income tax Officer,Ward-3(3),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 09-09-2011
Assessment Year 2005-2006
Appeal Filed On 25-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD .'.#$% '& ' ' BEFORE SHRI MUKUL KR.SHRAWAT JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER APPEAL(S) BY: APPELLANT VS. RESPONDENT SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 597/AHD/2011 2005-06 MANOJ NANUBHAI DESAI 18 ARGOYANAGAR SOCIETY ATHWALINES SURAT-395 001 PAN : AAJPD4474 G THE ITO WARD-3(3) SURAT 2. 598/AHD/2011 2005-06 ASSESSEE REVENUE 3. 599/AHD/2001 2006-07 ASSESSEE REVENUE 4. 600/AHD/2011 2006-07 ASSESSEE REVENUE ASSESSEE BY : SHRI J.P. SHAH A.R. REVENUE BY : SHRI D.C. SHARMA SR.D.R. () * & / / / / DATE OF HEARING : 02/09/2011 $- * & / DATE OF PRONOUNCEMENT : 09/09/2011 '. / O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : ALL THESE FOUR APPEALS HAVE BEEN FILED BY THE AS SESSEE WHICH WERE GROUPED AND DECIDED BY THE LEARNED CIT(APPEALS)-II SURAT VIDE ORDERS DATED 14/12/2010 (FOR A.Y. 2005-06) AND DATED 16/1 2/2010 (FOR A.Y. 2006-07) AS UNDER :- (A) FOR A.YS. 2005-06 & 2006-07 RESPECTIVELY AGAINST THE ASSESSMENT ORDER PASSED U/S.144 DATED 18/12/2007 AN D AGAINST THE ORDER ITA NOS.597 TO 600/AHD/2011 MANOJ MANUBHAI DESAI VS. ITO ASST.YEARS 2005-06 & 2006-07 - 2 - PASSED U/S.143(3) DATED 29/12/2008 HE HAS DECIDED THOSE TWO APPEALS VIDE A CONSOLIDATED ORDER DATED 14/12/2010. (B) FOR A.Y.S. 2005-06 & 2006-07 AGAINST THE IMPOSITION OF PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT VIDE ORDERS DAT ED 24/06/2008 AND 29/06/20098 THE LEARNED CIT(APPEALS) HAS PASSED A CONSOLIDATED ORDER DATED 16/12/2010. 3. FOR BOTH THE ASSESSMENT YEARS AS FAR AS THE ASSE SSMENT ORDERS ARE CONCERNED THE ASSESSING OFFICER HAD PROCEEDED ALMO ST EX-PARTE AGAINST THE ASSESSEE SINCE THERE WAS LACK OF COMPLIANCE ON THE PART OF THE ASSESSEE. THEREFORE FOR A.Y. 2005-06 THE ASSESSM ENT WAS PASSED U/S.144 ON 18/12/2007. 3.1. FOR THOSE YEARS ADMITTEDLY THE APPEALS WERE BELATEDLY FILED BEFORE THE LEARNED CIT(APPEALS). AS PER THE RECORDS FOR A.Y. 2005-06 THE ASSESSMENT WAS DATED 18/12/2007 AND FOR A.Y. 2006 -07 IT WAS DATED 29/12/2008 HOWEVER THE ASSESSEE HAS FILED THE A PPEALS ON 04/03/2010 AND 05/03/2010 RESPECTIVELY WHICH WERE UNDISPUTEDLY AFTER THE LAPSE OF MORE THAN 2 YEARS. 4. THE LEARNED CIT(APPEALS) HAS DISMISSED THOSE APP EALS IN LIMINE AND IN HIS OPINION THE ASSESSEE HAD FAILED TO SHOW A SUFFICIENT CAUSE FOR CONDONATION OF DELAY IN FILING THOSE APPEALS. ITA NOS.597 TO 600/AHD/2011 MANOJ MANUBHAI DESAI VS. ITO ASST.YEARS 2005-06 & 2006-07 - 3 - 5. THE APPELLANT VIDE GROUND NO.1 FOR BOTH THE YEAR S HAVE AGITATED THE DISMISSAL OF APPEAL(S) AS PER THE FOLLOWING GRO UNDS:- COMMON GROUND : 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LE ARNED CIT(A) HAS GROSSLY ERRED IN NOT CONDONING THE DELAY IN FIL ING THE APPEAL WITHOUT PROPERLY APPRECIATING THE REASONABLE CAUSE FOR THE SAID DELAY AS DULY SUBMITTED BY THE APPELLANT. 5.1. ONLY THIS GROUND HAS BEEN AGITATED BEFORE US A ND MADE IT CLEAR AT THE OUTSET ITSELF THAT REST OF THE GROUNDS BEING PE RTAINING TO THE QUANTUM ADDITIONS THEREFORE CAN BE DECIDED LATER IF ASSE SSEE SUCCEED ON THE LEGAL ISSUE OF EX-PARTE DECISION. AS FAR AS THE QUESTION OF DELAY IN FILIN G OF THE APPEALS BEFORE LEARNED CIT(APPEALS) WAS CONCERNED IT IS INFORMED THAT AN AFFIDAVIT WAS FILED BY THE ASSESSEE BEFORE THE L EARNED CIT(APPEALS) THROUGH WHICH IT WAS AFFIRMED THAT DUE TO DISPUTE I N THE FAMILY THE ASSESSEE HAD SHIFTED FROM THE OLD ADDRESS AND THOUG H THE ORDERS WERE SERVED ON HIS MOTHER BUT ON ACCOUNT OF NO COMMUNIC ATION HE WAS NOT ABLE TO RECEIVE THOSE ORDERS. HE CAME TO KNOW ABOU T THOSE ORDERS WHEN RECOVERY PROCEEDINGS WERE INITIATED AGAINST HIM. A LL THOSE FACTS ABOUT FILING AN APPLICATION TO OBTAIN DUPLICATE COPIES OF THE ASSESSMENT ORDER WERE DULY COMMUNICATED TO LEARNED CIT(APPEALS) AS I S EVIDENT FROM THE FOLLOWING PARAGRAPH:- 1. THE APPEALS FILED ARE AGAINST THE ORDER DATED 1 8-12-2007 U/S.144 AND ORDER DATED 29-12-2008 U/S 143(3) OF TH E ACT IN THE A.YS 2005-06 AND 2006-07 OF THE ACT RESPECTIVELY. IN COL.7 OF FORM NO.35 THE DATE OF SERVICE OF THE ORDERS APPEA LED AGAINST IS MENTIONED AS 08-02-2010. THUS AS PER THE APPELLAN T THE APPEALS HAVE BEEN FILED WITHIN THE LIMITATION PERIOD. HOWE VER UPON VERIFICATION OF RECORDS IT WAS FOUND THAT THE APPE ALS FILED ARE ITA NOS.597 TO 600/AHD/2011 MANOJ MANUBHAI DESAI VS. ITO ASST.YEARS 2005-06 & 2006-07 - 4 - BELATED. THE ORDERS DATED 18-12-2007 AND DTD 29-1 2-2008 WERE DULY SERVED UPON THE APPELLANT IN THE SAME MONTH IN WHICH THEY WERE PASSED. HOWEVER THE APPEALS HAVE BEEN FILED ONLY ON 04.03.2010 AND 05.03.2010 FOR THE RESPECTIVE ASSESS MENT YEARS THAT IS AFTER A LAPSE OF 2 YEARS & 2 MONTHS AND 1 Y EAR & 2 MONTHS FROM THE DATE OF PASSING OF THE ORDERS IN THE RESPE CTIVE ASSESSMENT YEARS. THE APPELLANT WAS THEREFORE PROVIDED OPPO RTUNITY TO EXPLAIN THE REASONS FOR THIS DELAY. THE APPELLANT HAS FILED AN AFFIDAVIT STATING THAT THE ORIGINAL ASSESSMENT ORDE RS WERE SENT ON HIS OLD ADDRESS AT A-10 KISHORE PARK SOC. GHOD DO D ROAD SURAT AND OFFICE OF HIS FATHER AT FLAT NO.1 KIRAN APARTM ENT NANPURA SURAT AND SINCE HE IS NOT IN TALKING TERMS WITH HIS FAMILY THE ORIGINAL ORDERS WERE NEVER HANDED OVER TO HIM AND I T WAS ONLY WHEN HIS BANK ACCOUNT WAS BEING ATTACHED U/S.226(3) FOR RECOVERY OF THE OUTSTANDING DEMAND THAT HE CAME TO KNOW THA T ASSESSMENT ORDERS IN HIS CASE HAD BEEN PASSED AND IMMEDIATEL Y THEREAFTER HE APPLIED FOR A DUPLICATE COPY OF THE ORDER TO THE ASSESSING OFFICER WHICH HE RECEIVED ON 08-02-2010 AND FILED APPEAL ON 04- 03-2010 AND 05-03-2010 FOR THE RESPECTIVE YEARS TH EREFORE THERE IS NO DELAY IN FILING THE APPEAL. 6. HOWEVER LEARNED CIT(APPEALS) WAS NOT CONVINCED AND DISMISSED BOTH THE APPEALS PERTAINING TO THE QUANTUM ADDITION S. LIKEWISE IN RESPECT OF THE PENALTY APPEALS AGAINST THE ORDER U/ S.271(1)(C) OF THE I.T.ACT THE SAID CONTENTION WAS DENIED AND APPEALS WERE REJECTED. 7. IN THE LIGHT OF THE BRIEF BACKGROUND AND ON HEAR ING THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF THE VIEW THAT THE FACT S STATED THROUGH AN AFFIDAVIT DATED 27/10/2010 HAVE CLEARLY INDICATED T HE REASONS FOR THE IMPUGNED DELAY. AS FAR AS THE CONDUCT OF THE ASSES SEE WAS CONCERNED AS SOON AS HE CAME TO KNOW ABOUT THE PASSING OF THE AS SESSMENT ORDER HE HAD TAKEN THE STEP TO OBTAIN THE CERTIFIED TRUE CO PY FROM THE REVENUE ITA NOS.597 TO 600/AHD/2011 MANOJ MANUBHAI DESAI VS. ITO ASST.YEARS 2005-06 & 2006-07 - 5 - DEPARTMENT. BECAUSE OF THIS VIGILANT CONDUCT ONE CANNOT DOUBTE HIS BONA FIDE. THIS FACT HAS ALSO ESTABLISHED THAT THE ASSESSEE WAS NOT SERVED THE ASSESSMENT ORDERS ORIGINALLY. OTHERWISE ALSO A LITIGANT DO NOT GAIN ANYTHING BY NOT PURSUING HIS CASE BEFORE AN APPELLA NT AUTHORITY SPECIALLY WHEN A JUDGEMENT HAS BEEN PASSED AGAINST HIM. FOR THIS LEGAL PROPOSITION A SERIES OF JUDGEMENTS ARE PLACED BEFO RE US LISTED AS BELOW:- SL.NO(S) DECISION IN THE CASE OF REPORTED IN 1. N.BALKRISHNAN 7 SCC 123 (SC) 2. RAM NATH SAO ALIAS RAM NATH SAHU & ORS. 3 SCC 195 (SC) 3. RAMLAL & SONS 99 TTJ (ASR) 63 & ITA NO.390/ASR/99 4. AUTO CENTRE 278 ITR 291 (ALL) 5. G.S.F.C. LTD. 283 ITR 149 (GUJ) 6. BHARAT AUTO CENTRE 282 ITR 366 (ALL) 7. KALIPAR CREDIT & MERCANTILE P.LTD. ITA 2390/A/1996 8. CHANDRAVADAN A.TAKTAWALA ITA 3676 TO 3683/2004 9. M/S.RATILAL M.SONI ITA 2416/2005 7.1. IN ALL THESE JUDGEMENTS THE HONBLE COURTS HA VE DISCUSSED THE QUESTION OF NATURAL JUSTICE AND THEN HELD THAT THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PART IES AND TO ADVANCE SUBSTANTIAL JUSTICE. FOLLOWING THESE DECISIONS WE DEEM IT PROPER TO SEND THESE APPEALS BACK TO THE STAGE OF THE LD. CIT(A) WITH THE DIRECTION TO CONDONE THE DELAY AND ADMIT THESE APPEAL FOR HEARIN G AND DECIDE ON MERITS AS PER LAW. WE HEREBY ALSO INSTRUCT THIS AP PELLANT TO FULLY CO- OPERATE WITH THE APPELLATE PROCEEDINGS AND GET THES E APPEALS DECIDED AT AN EARLY DATE. RATHER THIS APPELLANT IS ADVISED TO APPROACH THE LEARNED ITA NOS.597 TO 600/AHD/2011 MANOJ MANUBHAI DESAI VS. ITO ASST.YEARS 2005-06 & 2006-07 - 6 - CIT(APPEALS) SUO MOTU WITHIN 30 DAYS ON RECEIPT OF THIS ORDER WITHOUT WAITING FOR ANY NOTICE OF APPEARANCE SO THAT THE P ROBLEM OF SERVING OF NOTICE SHOULD NOT BE FACED BY THE REVENUE DEPARTMEN T. WITH THESE DIRECTIONS THE PRELIMINARY LEGAL GROUND IS HEREBY ALLOWED AND REST OF THE GROUNDS (FOR BOTH YEARS) ARE RESTORED FOR DE NOVO ADJUDICATION AS PER LAW THEREFORE MAY BE TREATED AS ALLOWED BUT FOR STATIS TICAL PURPOSES ONLY. 8. IN THE RESULT ALL THESE FOUR APPEALS MAY BE TRE ATED AS ALLOWED BUT FOR STATISTICAL PURPOSES ONLY. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 9/ 9 /2011. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 9/ 9 /2011 /..( .(../ T.C. NAIR SR. PS '. '. '. '. * ** * 01 01 01 01 2'1- 2'1- 2'1- 2'1- / COPY OF ORDER FORWARDED TO:- 1. 45 / APPELLANT 2. 0745 / RESPONDENT 3. 9 / CONCERNED CIT 4. 9- / CIT (A)-II SURAT 5. 1=# 0( / DR ITAT AHMEDABAD 6. # ?@ / GUARD FILE. BY ORDER/ '. ' 71 0 //TRUE COPY// A/ B