KETAN V. SHAH, JALNA v. ACIT CEN CIR 11, MUMBAI

ITA 6089/MUM/2009 | 2002-2003
Pronouncement Date: 15-09-2010 | Result: Allowed

Appeal Details

RSA Number 608919914 RSA 2009
Assessee PAN ACYPS9924F
Bench Mumbai
Appeal Number ITA 6089/MUM/2009
Duration Of Justice 9 month(s) 26 day(s)
Appellant KETAN V. SHAH, JALNA
Respondent ACIT CEN CIR 11, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-09-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 15-09-2010
Assessment Year 2002-2003
Appeal Filed On 19-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI P.M.JAGTAP ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 6089 TO 6094/MUM/2009 (ASSESSMENT YEARS: 2002-03 TO 2007-08) KETAN V SHAH PLOT NO.1-28 4088/6 NATHNAGAR MANTHA ROAD JALNA-431203 PAN: ACYPS9924F APPELLANT VS ACIT CENT CENT-11 MUMBAI-400011. RESPONDENT ITA NO. 6095- TO 6098/MUM/2009 (ASSESSMENT YEARS: 2003-04 2004-05 2006-07 AND 20 07-08) KETAN V SHAH (HUF) PLOT NO.1-28 4088/6 NATHNAGAR MANTHA ROAD JALNA-431203 PAN: AAEHS8787G APPELLANT VS ACIT CENT CENT-11 MUMBAI-400011. RESPONDENT ASSESSEE BY : SHRI DHARMESH SHAH REVENUE BY : SHRI BOOTA SINGH O R D E R PER BENCH THESE TWO SETS OF APPEALS BY THE ASSESSEE ARE DIRE CTED AGAINST THE TWO COMPOSITE ORDERS OF CIT(A) BOTH DAT ED 21.08.2009 PASSED IN THE CASES OF THE INDIVIDUAL AS SESSEE ITA NO. 6089 TO 6098/MUM/2009 2 AND HUF FOR THE RESPECTIVE ASSESSMENT YEARS. SINCE FACTS AND ISSUES INVOLVED IN ALL THESE APPEALS ARE IDENT ICAL THEREFORE FOR THE SAKE OF CONVENIENCE ALL THESE A PPEALS WERE HEARD TOGETHER AND ARE BEING DECIDED BY THIS COMPO SITE ORDER. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THESE APPEALS HOWEVER THE ONLY COMMON ISSUE ARISES IN ALL THESE APPEALS FOR OUR CONSIDERATION AND ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) IS JUSTIFIED IN HOLDING THAT THE APPEALS WERE FILED BELATEDLY BY THREE MONTHS AND TWO DAYS AND FURTHER REFUSING TO CONDONE THE SAID DELAY IN FILING THE APPEALS. 3. THE ASSESSEE HAD CHALLENGED THE ASSESSMENT ORDER S IN ALL THESE CASES BY FILING THE APPEALS BEFORE THE C IT(A). IN FORM NO.35 IT IS MENTIONED THAT THE ASSESSMENT ORD ER WAS SERVED ON ASSESSEE ON 22.04.2009. THUS ALL THESE APPEALS CLAIMED TO HAVE BEEN FILED IN TIME. SINCE THE ASSE SSMENT ORDERS WERE PASSED ON 24.12.2008 THE ASSESSEE BY T AKING ABUNDANT PRECAUTION ALSO FILED THE PETITION FOR CONDONATION OF DELAY IN FILING THE APPEALS. THE CIT(A) DECLIN ED TO CONDONE THE DELAY IN FILING THE APPEALS ON THE GROUND THAT THE SERVICE OF THE ASSESSMENT ORDER WAS MADE THROUGH AFFIXTURE ON 19.01.2009 THEREFORE THE ASSESSEE WAS VERY MUCH I N INDIA ON THAT DATE OF SERVICE. THE CIT(A) HAS HELD THAT TH E AO HAS ITA NO. 6089 TO 6098/MUM/2009 3 TAKEN DUE DILIGENCE IN MAKING THE VALID SERVICE OF THE ORDER ON 19.1.2009 AND IF THE ASSESSEE DID NOT COME TO KNOW ABOUT THE ASSESSMENT ORDER IT WAS ONLY ON ACCOUNT OF NEGLIG ENCE ON THE PART OF THE ASSESSEE. SINCE THE APPEALS WERE F ILED ON 20.5.2009 THE CIT(A) HELD THAT THERE WAS A DELAY OF THREE MONTHS AND TWO DAYS IN FILING THE APPEALS AND THE A SSESSEE FAILED TO ESTABLISH ANY GOOD AND SUFFICIENT CAUSE F OR DELAY IN FILING THE APPEALS. THE APPEALS OF THE ASSESSEE WER E DISMISSED IN LIMINE VIDE IMPUGNED ORDER. 4. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR AND CONSIDERED THE RELEVANT RECORD. IT IS NOT DI SPUTED BY THE REVENUE THAT THE SERVICE OF THE ASSESSMENT ORDER W AS MADE BY THE AO ONLY BY WAY OF AFFIXTURE. THUS THE QUES TION ARISES WHETHER THE SERVICE THROUGH AFFIXTURE ONLY IS A PRO PER SERVICE IN THE ABSENCE OF EXHAUSTING OTHER MODE OF SERVIC ES BY THE AO. THE SECTION 282 OF THE INCOME TAX ACT 1961 PROVIDES THE MODE OF SERVICES OF NOTICE OR ORDER AS UNDER : SERVICE OF NOTICE GENERALLY. 282. (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER COMMUNICATION UNDER THIS ACT (HEREAFTER IN THIS SECTION REFERRED TO AS COMMUNICATION) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF TO THE PERSON THEREIN NAMED (A) BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE BOARD; OR ITA NO. 6089 TO 6098/MUM/2009 4 (B) IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CI VIL PROCEDURE 1908 (5 OF 1908) FOR THE PURPOSES OF SER VICE OF SUMMONS; OR (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDE D IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT 2000 (21 OF 2000); (D) BY ANY OTHER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. (2) THE BOARD MAY MAKE RULES PROVIDING FOR THE ADDRESSES (INCLUDING THE ADDRESS FOR ELECTRONIC MAI L OR ELECTRONIC MAIL MESSAGE) TO WHICH THE COMMUNICATION REFERRED TO IN SUB-SECTION (1) MAY BE DELIVERED OR TRANSMITTED TO THE PERSON THEREIN NAMED. EXPLANATION.FOR THE PURPOSES OF THIS SECTION THE EXPRESSIONS ELECTRONIC MAIL AND ELECTRONIC MAIL MESSAGE SHALL HAVE THE MEANINGS AS ASSIGNED TO THE M IN EXPLANATION TO SECTION 66A OF THE INFORMATION TECHNOLOGY ACT 2000 (21 OF 2000). ] 5. THUS IT IS CLEAR THAT PRIMARILY THE SERVICE OF THE ORDER/NOTICE SHALL BE BY POST OR BY SUCH COURIER SE RVICE AS MAY BE APPROVED BY THE BOARD OR IN SUCH AS MANNER AS PROVIDED IN CIVIL PROCEDURE CODE. THE OTHER MODE OF SERVICE OF NOTICE/ASSESSMENT ORDER PROVIDE UNDER THE PROVIS IONS ARE NOT RELEVANT FOR THE PURPOSE OF CASES IN HAND BECA USE THE AO ADOPTED THE SERVICE OF ORDER AS PROVIDED UNDER CIVI L PROCEDURE CODE UNDER ORDER-V RULE-20 AS UNDER: 20. SUBSTITUTED SERVICE (1) WHERE THE COURT IS SATISFIED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING OUT OF THE WAY FOR THE PURPOSES OF AVOIDING SERVICE OR THAT FOR ANY OTHER REASON THE SUMMONS CANNOT BE SERVED IN THE ORDINARY WAY THE COURT SHALL ORDER THE SUMMONS ITA NO. 6089 TO 6098/MUM/2009 5 TO BE SERVED BY AFFIXING A COPY THEREOF IN SOME CONSPICUOUS PLACE IN THE COURT-HOUSE AND ALSO UPON SOME CONSPICUOUS PART OF THE HOUSE (IF ANY) IN WHICH THE DEFENDANT IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT. (1-A) WHERE THE COURT ACTING UNDER SUB-RULE (1) ORDERS SERVICE BY AN ADVERTISEMENT IN A NEWSPAPER THE NEWSPAPER SHALL BE A DAILY NEWSPAPER CIRCULATING TIN THE LOCALITY IN WHICH THE DEFENDANT IS LAST KNOWN TO HAVE ACTUALLY AND VOLUNTARILY RESIDED CARRIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN) (2) EFFECT OF SUBSTITUTED SERVICE - SERVICE SUBSTITUTED BY ORDER OF THE COURT SHALL BE AS EFFECTUAL AS IF IT HAD BEEN MADE ON THE DEFENDANT PERSONALLY. (3) WHERE SERVICE SUBSTITUTED TIME FOR APPEARANCE TO BE FIXED- WHERE SERVICE IS SUBSTITUTED BY ORDER OF THE COURT THE COURT SHALL FIX SUCH TIME FOR THE APPEARANCE OF THE DEFENDANT AS THE CASE MAY REQUIRE 6. THE SUBSTITUTED SERVICE BY WAY OF AFFIXTURE IS RESORTED ONLY WHEN THERE IS A REASON TO BELIEVE THAT DEFENDA NT IS KEEPING OUT OF WAY FOR THE PURPOSES OF AVOIDING S ERVICE OR THAT FOR ANY OTHER REASON THE SERVICE CANNOT BE MA DE IN THE ORDINARY WAY. IN THE CASE IN HAND THE AO HAS NOT E XHAUSTED THE ORDINARY WAY OF SERVICE BY SENDING IT BY POST O R BY SUCH COURIER BUT DIRECTLY MADE THE SERVICES THROUGH AFFI XTURE. WE ARE OF THE VIEW THAT THE SUBSTITUTED SERVICE AS PRO VIDED IN THE ORDER-5 RULE -20 OF CIVIL PROCEDURE CODE IS ONLY A LAST ITA NO. 6089 TO 6098/MUM/2009 6 RESORT WHEN THE COURT OR OTHER AUTHORITIES SATISFIE D THAT SERVICE CANNOT BE EFFECTED THROUGH ORDINARY MODE /M ETHOD. IT IS CLEAR THAT WITHOUT EXHAUSTING OTHER ORDINARY MOD E OF SERVICES THE SERVICE THROUGH AFFIXTURE IS NOT PRO PER SERVICE. EVEN OTHERWISE THE ASSESSEE SOUGHT THE CONDONATIO N OF DELAY BY EXPLAINING THE REASONS THAT THE ASSESSEE D ID NOT COME TO KNOW ABOUT THE ASSESSMENT ORDER AND THE CO PY OF THE ASSESSMENT ORDER WAS OBTAINED SUBSEQUENTLY. THEREFO RE IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE SE RVICE OF THE ASSESSMENT ORDER WAS CLAIMED TO HAVE BEEN EFFEC TED THROUGH AFFIXATION THE ASSESSEE HAS EXPLAINED AND DISCLOSED THE SUFFICIENT REASON FOR NOT FILING THE APPEALS WI THIN THE PERIOD OF LIMITATION. THUS THE CIT(A) WAS NOT JUSTIFIED IN NOT CONDONING THE DELAY OF 92 DAYS WHICH WAS PROPERLY EXPLAINED. THE CIT(A) HAS NOT DOUBTED THE EXPLANAT ION OF THE ASSESSEE BEING FALSE OR VAGUE BUT TURNED DOWN THE SAME ON THE GROUND THAT IT WAS ONLY ON ACCOUNT OF NEGLIGENC E ON THE PART OF THE ASSESSEE. SINCE THE SERVICE WAS NOT ON THE PERSON AND WAS NOT IN THE PRESENCE OF THE ASSESSEE. THEREF ORE IT CANNOT LEAD TO THE CONCLUSION THAT THE ASSESSEE DI D NOT COME TO KNOW ABOUT THE ASSESSMENT ORDER BECAUSE OF THE NEGLIGENCE. 7. IT IS SETTLED LAW THAT WHILE CONDONING THE DELAY THE COURT SHOULD TAKE A LENIENT VIEW. IT IS ALWAYS A QUESTIO N WHETHER THE EXPLANATION AND REASONS FOR DELAY WAS BONAFIDE OR W AS MERELY ITA NO. 6089 TO 6098/MUM/2009 7 DEVISE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHE S ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITA TION IN AN UNDERHAND WAY. WHEN IT IS BROUGHT ON RECORD THAT T HE PARTY HAS NOT ACTED IN MALAFIED BUT THE REASONS EXPLAINE D ARE FACTUALLY CORRECT THEN COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND SHOULD LEAN IN FAVOUR OF SUC H PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE OPPOSED TO EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED. JUSTICE ORIENTED APPROACH HAS TO BE TAKE N BY A COURT WHILE DECIDING THE MATER FOR CONDONATION OF D ELAY. HOWEVER THIS DOES NOT MEAN THAT A LITIGANT GETS FREE LICENCE TO APPROACH THE COURT AT ITS WILL. IN VIEW OF THI S LEGAL AND FACTUAL POSITION WE CONDONE THE DELAY OF 92 DAYS IN FILING THE APPEALS BEFORE THE CIT(A). SINCE THE CIT(A) HAS DI SMISSED THE APPEAL IN LIMINE WITHOUT DECIDING THE ISSUE ON MERITS THEREFORE WE REMIT THE MATTER TO THE RECORD OF THE CIT(A) FOR DECIDING THE SAME ON MERITS. 8. IN THE RESULT APPEALS OF THE ASSESSEE STAND ALL OWED FOR STATISTICAL PURPOSES.. PRONOUNCED IN THE OPEN COURT ON 15.09.2010 SD SD (P.M.JAGTAP) (V IJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 15 TH SEP 2010 SRL:9910 ITA NO. 6089 TO 6098/MUM/2009 8 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI