Shri Devendra Kumar Verma, Kashipur v. ITO-I, Kashipur

ITA 614/DEL/2013 | 2007-2008
Pronouncement Date: 19-11-2014 | Result: Allowed

Appeal Details

RSA Number 61420114 RSA 2013
Assessee PAN ABNPV0394E
Bench Delhi
Appeal Number ITA 614/DEL/2013
Duration Of Justice 1 year(s) 9 month(s) 18 day(s)
Appellant Shri Devendra Kumar Verma, Kashipur
Respondent ITO-I, Kashipur
Appeal Type Income Tax Appeal
Pronouncement Date 19-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 19-11-2014
Date Of Final Hearing 17-11-2014
Next Hearing Date 17-11-2014
Assessment Year 2007-2008
Appeal Filed On 01-02-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B NEW DELHI SHRI J.SUDHAKAR REDDY J.M AND SHRI GEORGE GEORGE K JM ITA NO: 614/DEL/2013 AY : - 2007-08 DEVENDRA KUMAR VERMA ITO-1 8/187 SUBH VIHAR KASHIPUR KASHIPUR. (PAN ABNPV0394E) (APPELLANT) (RESP ONDENT) APPELLANT BY :S HRI S.K. CHATURVEDI CA RESPONDENT :SM T. PARWINDER KAUR SR. DR O R D E R PER J.SUDHAKAR REDDY ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) II DEHRADUN D ATED 19.11.2012 FOR THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUND S :- 1. THAT THE HONBLE CIT(A) 2 DEHRADUN ERRED IN L AW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN NOT C ONDONING GENUINE AND BONAFIDE DELAY OF 2 YEAR AND 7 MONTHS IN FILING AN APPEAL AGAINST AN IMPUGNED ORDER DATED 26.12.20008 PASSED U/S 143(3)/148 OF INCOME TAX ACT 1961 WITHOUT APPRECIA TING THE VEHEMENT AND DETAILED ARGUMENTS AND PLEADINGS PLACE D ON RECORD. IN VIEW OF THE BONAFIDE HONEST TRUTHFUL BELIEF AN D TRUST ON THE PART OF YOUR APPELLANT ON HIS REPRESENTATIVES WITHOUT AN D INTENTION TO COVER ANY ULTERIOR PURPOSE AND THE CIRCUMSTANCES BE ING BEYOND THE CONTROL OF YOUR APPELLANT WHICH HAS CAUSED THE UNI NTENDED AND INADVERTENT DELAY THE HONBLE CIT(A)-2 DEHRADUN OUGHT TO HAVE CONDONED THE DELAY. THE HONBLE CIT(A)-2 DEHRADUN BE DIRECTED TO CONDONE THE DELAY. 2. AFTER HEARING RIVAL CONTENTIONS WE H OLD AS FOLLOWS :- ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 2 BOTH THE PARTIES AGREED THAT THE ISSUE IN HAND IS N O MORE RES INTEGRA AS UNDER SIMILAR CIRCUMSTANCES THE APPEAL FILED THE EMPLOYEES OF THE BANK WITH A DELAY OF 2 YEAR 7MONTHS WERE CONDONED BY THE ITAT. 3. THE DELHI A BENCH OF THE ITAT IN ITA NO. 363 /D/2013 IN THE CASE OF ANIL KUMAR VERMA VS. ITO ORDER DATED 29.11.2013 CON DONED THE DELAY BY OBSERVING AS FOLLOWS :- 6.2 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH SI DES AND HAVE PERUSED THE RECORD OF THE CASE. 6.3 THE CONDONATION OF DELAY DEPENDS UPON THE SUFF ICIENCY OF REASONS SEEKING CONDONATION. IN THE PRESENT CASE T HE ASSESSEE IN ITS CONDONATION PETITION HAD POINTED OUT THAT IT WAS ON ACCOUNT OF LEGAL ADVICE THAT HE DID NOT PURSUE THE MATTER ANY FURTHER AFTER THE ASSESSMENT ORDER WAS PASSED. SUBSEQUENTLY ON THE BASIS OF LEGAL ADVICE THE ASSESSEE FILED A PETITIO N U/S 154. AGAIN HE GOT A LEGAL ADVICE THAT THE APPEAL IS TO BE PREF ERRED AND THEREFORE HE FILED THE APPEAL. 7. IN OUR OPINION THE ASSESSEE CANNOT BE TREATED AS A LITIGANT WHO WAS NOT INTERESTED IN PURSUING THE LEGAL REMEDY AGAINST THE ASSESSMENT ORDER. IT WAS ONLY ON ACCOUNT OF WRONG L EGAL ADVICE THAT THE ASSESSEE DID NOT PURSUE THE APPEAL. FILING OF PETITION U/S 154 AND THEREAFTER APPEAL BEFORE LD. CIT(A) CLEARLY VINDICATES THE ASSESSEES CLAIM THAT HE WAS ACTING ON LEGAL ADVICE . THE ASSESSEE WAS A BANK EMPLOYEE AND NOT A LEGAL EXPERT TO KNOW THE NICETIES OF HIS LEGAL RIGHTS. THE HONBLE SUPRE ME COURT IN THE CASE OF MST. KATTIJI & OTHRS. (SUPRA) HAS HELD AS U NDER :- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT 196 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUST ICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INST ITUTION OF COURTS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT IMPL Y A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONA L COMMON SENSE AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS INCLUDING THE STATE AS A LITIGANT ARE ACCORDED THE SAME TREATMENT ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 3 AND THE LAW IS ADMINISTERED IN AN EVENHANDED MANNER . THERE IS NO WARRANT FOR ACCORDING A STEP MOTHERLY TREATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERAT IONS ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 7.1 IN OUR OPINION THIS DECISION IS SQUARELY APP LICABLE IN THE PRESENT SET OF FACTS AND THE DELAY IN FILING THE AP PEAL BEFORE LD. CIT(A) SHOULD HAVE BEEN CONDONED. 8. LD. DR HAS RELIED ON VARIOUS DECISIONS WHICH A RE DISCUSSED HEREUNDER : MADHU DADHA VS. ASSTT. CIT CHENNAI. IN THIS CASE T HERE WAS A DELAY OF 558 DAYS IN FILING THE APPEAL. TRIBU NAL REJECTED THE APPEAL HOLDING THAT ASSESSEE WAS NOT G IVEN SUFFICIENT REASONS FOR DELAY. IN PARA 8 & 9 THE HON BLE MADRAS HIGH COURT HAS OBSERVED AS UNDER :- 8. FROM A READING OF THE ABOVE IT IS CLEAR THAT THE APPELLANT HAS NOT EXPLAINED THE CAUSE OF DELAY IN F ILING THE APPEAL ESPECIALLY WHEN AUTHORIZED REPRESENTATIVE V IZ. REPRESENTATIVE WHO WAS GIVEN CHARGE TO FILE THE APP EAL HAD DIED EXACTLY ONE YEAR AFTER THE LAST DATE OF FI LING OF THE APPEAL. WHEN THAT BE SO IT IS PERTINENT TO POINT O UT THAT ACTUALLY THE FILING OF THE APPEAL WAS NOT DONE AND EVEN AFTER THE DEATH OF ASHOK KUMBAT THE ASSESSEE HAD T AKEN MORE THAN SIX MONTHS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAD NEITHER GIVEN ANY PARTICULAR OR DETAIL S IN THE AFFIDAVIT AS ON WHICH DATE THE PAPERS WERE HANDED O VER TO THE COUNSEL FOR PREPARING THE APPEAL AND ON WHAT OC CASION THE ASSESSEE ENQUIRED ABOUT THE PROGRESS IN PREPARI NG THE APPEAL AND FILING THE SAME. THUS UNDER SUCH CIRCUMSTANCES THE HONBLE HIGH CO URT HELD THAT THERE WAS NO SUFFICIENT REASON OR CAUSE TO INT ERFERE WITH THE ORDER OF THE TRIBUNAL. THIS DECISION IS NOT AT ALL APPLICABLE IN THE PRESENT SET OFF FACTS. SHREE BALAJI WOOLLEN MILLS VS. ASSTT. CIT. IN THIS CASE THERE WAS A DELAY OF 902 DAYS. 2. THESE APPEALS EARLIER DISPOSED OF VIDE ORDER D ATED 2.6.2011 WERE RECALLED VIDE ORDER DATED 28.9.2012 IN MA NOS. 273 & 274/D/2011. THE QUANTUM APPEAL FILED BY THE ASSESSE E IN ITA NO. 1238/D/2011 IS DELAYED BY 902 DAYS. THOUGH THE ASSESSEE MENTIONED IN GROUND NO. 3 IN THE APPEAL THAT THERE WAS REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL NO T EVEN A ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 4 WHISPER HAS BEEN MADE IN THE DOCUMENTS ANNEXED WITH THE APPEAL AS TO WHAT WAS THE REASONABLE CAUSE NOR ANY APPLICATION FOR CONDONATION OF DELAY OF 902 DAYS IN FILING THE APPEAL HAS BEEN SUBMITTED EVER SINCE APPEAL WAS FILED ON 10.3.2011. NONE APPEARED BEFORE US ON BEHALF OF THE ASSESSEE EVEN W HEN DATE OF HEARING WAS SPECIFICALLY INFORMED TO THE LD. AR ON BEHALF OF THE ASSESSEE WHEN HE APPEARED ON 22.11.2012. A IS EVIDE NT FROM THE AFORESAID FACTS QUANTUM APPEAL FILED BY THE ASSESS EE WHEN HE APPEARED ON 22.11.2012. AS IS EVIDENT FROM THE AFOR ESAID FACTS QUANTUM APPEAL FILED BY THE ASSESSEE IS DELAYED BY 902 DAYS WHILE NO REQUEST HAS BEEN MADE BY THE ASSESSEE FOR CONDONATION OF DELAY IN FILING THE APPEAL. IN THESE CIRCUMSTANC ES THERE BEING NO SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL THE APPEAL CANNOT BE ADMITTED. REGARDING SUFFICIENT CAUSE I N THE CASE OF GOPAL FILMS VS. CIT (1999) 237 ITR 655 / 105 TAXMAN 364 (KAR.) IT WAS HELD BY THE HONBLE COURT THAT WHENEVER A PARTY WANTS DELAY TO BE CONDONED HE SHOULD SHOW SUFFICIENT CAUSE. IF NO CAUSE IS SHOWN AT ALL THE ONLY CONCLUSION THAT CAN BE REACHED IS THA T THE DELAY CANNOT BE CONDONED PARTICULARLY WHEN LACK OF BONA FIDES IS EVIDENT. SINCE ASSESSEE DID NOT GIVE ANY REASONABLE CAUSE NO R ANY APPLICATION FOR CONDONATION OF DELAY THEREFORE TR IBUNAL DID NOT CONDONE THE DELAY. THIS DECISION IS ALSO NOT APPLIC ABLE TO THE FACTS OF THE CASE IN-AS-MUCH AS ASSESSEE ITSELF HAD TAKEN A GROUND BEFORE LD. CIT(A) FOR CONDONATION OF DELAY A ND HAD FILED THE PETITION FOR CONDONATION OF DELAY AGRICULTURAL MARKET COMMITTEE VS. ADIT (EXEMPTIONS- 1) HYDERABAD. IN THIS CASE THERE WAS A DELAY OF 1500 D AYS IN FILING APPEALS. THE TRIBUNAL WHILE REFUSING TO COND ONE THE DELAY INTER-ALIA OBSERVED AS UNDER :- THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE ASSESSEES CASE IS HARD AND CALLS FOR SYMPATHY OR M ERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DI LIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVER. THE SU FFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PR OVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE SUPREME COU RT IN THE CASE OF RAMLAL VS. REWA COALFIELDS LTD. AIR 196 2 SC 361 HAS HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE B EEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN THE ME ANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE NOR INACTION OR WANT OF BONAFIDES CAN BE IMPUTED TO THE ASSESSEE A ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 5 LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MA DE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JU STICE MUST COME WITH CLEAN HANDS. IN THE PRESENT CASE THE REASONS ADVANCED BY THE ASSESSEE DO NOT SHOW ANY G OOD AND SUFFICIENT REASON TO CONDONE THE DELAYS. THE DE LAYS ARE NOT PROPERLY EXPLAINED BY THE ASSESSEE. THERE I S NO REASON FOR CONDONING SUCH DELAYS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION. THE DELAY IS NOTHING BUT NEGLI GENCE AND INACTION OF THE ASSESSEEE WHICH COULD HAVE BEEN VERY WELL AVOIDED BY THE EXERCISE OF DUE CARE AND ATTENT ION. THERE EXISTS NO SUFFICIENT OR GOOD REASON FOR CONDO NING INORDINATE DELAYS OF MORE THAN 1500 DAYS FOR THE YE ARS UNDER CONSIDERATION (PARA 6). THIS DECISION ALSO IS OF NO ASSISTANCE TO REVENUE B ECAUSE HERE ALSO THE ASSESSEE WAS FOUND TO BE NEGLIGENT AND FAI LED TO PROVE THAT HE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGEN CE WHATSOEVER. IN THE PRESENT CASE HOWEVER AS NOTED EARLIER ASSESSEE HAD POINTED OUT THAT ON ACCOUNT OF WRONG L EGAL ADVICE IT DID NOT FILE APPEAL BEFORE LD. CIT(A). THE ASSES SEES ACTION OF FILING 154 PETITIONS BEFORE AO INDICATES ASSESSEES PLEA THAT HE WAS NOT NEGLIGENT. 9. IN VIEW OF ABOVE DISCUSSION WE CONDONE THE DE LAY IN FILING THE APPEAL BEFORE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR DECIDING THE APPEAL DENOVO ON MERITS. 4. SIMILAR VIEW HAS BEEN TAKEN BY THE G BENCH OF T HE ITA NO. 364/DEL/2013 ORDER DATED 19.12.2013. CONSISTENT WIT H THE VIEW TAKEN THEREIN WE CONDONE THE DELAY IN FILING THE FIRST AP PEAL BEFORE THE LD. CIT(A). 5. NORMALLY IN SUCH CASES THE APPEAL IS RESTORED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. BUT AS THE ISSUE AS TO WHETHER THE ASESSEE IS ENTITLED FOR EXEMPTION U/S 10(10C) IS NO MORE RES INTEGRA IN VIEW OF NUMBER OF DECISIONS ON THE MATTER WE FEEL IT WOULD BE AN EM PTY FORMALITY TO SET ASIDE THE MATTER. THUS WE DISPOSE OFF THE CASE ON MERITS. 6. HONBLE CALCUTTA HIGH COURT IN THE CASE O F SAIL DSP VR EMPLOYEES ASSOCIATION 1998 V. UNION OF INDIA HELD THAT THE MA XIMUM EXEMPTION UNDER ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 6 SECTION 10(10C) OF RS. 5 LAKHS IS ALLOWABLE AS ALL THE CONDITIONS OF SECTION 10(10C) READ WITH RULE 2BA ARE FULFILLED. IF THE SU M IS RECEIVED IN EXCESS OF RS. 5 LAKHS THE SAME WAS HELD ELIGIBLE FOR RELIEF UNDER SECTION 89 (1) OF THE ACT IN VIEW OF THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. G.V. VENUGOPAL. THE SUMS IN QUESTION ARE CLEAR LY THE PART OF SALARY IN THE FORM OF PROFITS IN LIEU OF SALARY AS DEFINED IN SECTION 17(3) OF THE ACT. THESE ARE AMOUNT OF COMPENSATION RECEIVED BY THE E MPLOYEE FROM THE EMPLOYER IN CONNECTIONS WITH THE TERMS OF EMPLOYMEN T AND THEREFORE THE ASSESEES IN QUESTION ARE CLEARLY ENTITLED FOR RELIE F UNDER SECTION 89(1) IN ACCORDANCE WITH LAW IN RESPECT OF THE PAYMENTS THAT ARE INCLUDED IN THE TOTAL INCOME. THIS VIEW HAS BEEN EXPRESSED IN THE D ECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. VENUGOPAL 2 73 ITR 307 (MAD) AND THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN CIT V. P. SURENDRA PRABHU 279 ITR 402 (KARN) CIT VS. NAGESH DEVIDAS K ULKARNI (2007) 291 ITR 407 (BOM) AND OTHERS. 7. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THIS APPEAL OF THE ASSESSEE. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER 2014. SD/- SD/- (GEORGE GEORGE K) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 19 TH NOVEMBER 2014 *VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ITA 614/DEL/2013 AY 2007-08 SHRI DEVENDRA KUMAR VERMA VS. ITO 7 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DEPUTY REGISTRAR