Smt. Susheelamma, Bangalore v. ACIT, Bangalore

ITA 624/BANG/2011 | 2002-2003
Pronouncement Date: 16-02-2012 | Result: Allowed

Appeal Details

RSA Number 62421114 RSA 2011
Assessee PAN AJNPM3604J
Bench Bangalore
Appeal Number ITA 624/BANG/2011
Duration Of Justice 8 month(s) 19 day(s)
Appellant Smt. Susheelamma, Bangalore
Respondent ACIT, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 16-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 16-02-2012
Assessment Year 2002-2003
Appeal Filed On 27-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K. JUDICIAL MEMBER ITA NO.624 & 625/BANG/2011 ASSESSMENT YEAR : 2002-03 SMT. SUSHEELAMMA W/O. SRI M. GANGI REDDY # 480 10 TH MAIN 22 ND CROSS BANASHANKARI II STAGE BANGALORE. PAN : AJNPM 3604J VS. THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(2) BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI D. DEVARAJ F.C.A. RESPONDENT BY : SHRI SARAVANAN B. JT. CIT(DR) DATE OF HEARING : 16.02.2012 DATE OF PRONOUNCEMENT : 16.02.2012 O R D E R PER N.K. SAINI ACCOUNTANT MEMBER THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE SEPARATE ORDERS EACH DATED 10.02.2011 OF THE CIT(AP PEALS)-II BANGALORE. SINCE THESE APPEALS PERTAINING TO THE SAME ASSESSEE WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.624/BANG/2011 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: ITA NOS.624 & 625/BANG/11 PAGE 2 OF 6 1. THE ORDERS OF THE LAA AND LAO ARE BAD IN LAW . 2. THE LAO ERRED IN NOT APPRECIATING THE FACTS TH AT THE TWO DEPOSITS AGGREGATING TO RS.2 00 400/- AND RS.1 80 8 38/- RELATED TO RENEWAL OF FIXED DEPOSITS . THESE DEPOSITS WER E MADE MUCH EARLIER TO APRIL 1998. FURTHER THE LAO ER RED IN ADDING THE RENEWAL OF FIXED DEPOSIT AS UNEXPLAINED INCOME AMOUNTING TO RS.3 11 304/-. THE LAA ERRED IN NOT ACCEPTING THE REASONS FOR CONDONATION OF DELAY IN FILLING THE APPEAL B Y YOUR APPELLANT AND ERRED IN DISMISSING THE APPEAL. FURTH ER THE LAA ERRED IN RENDERING NATURAL JUSTICE. ON THE ABOVE AND SUCH OTHER GROUNDS AS MA Y BE URGED AT THE TIME OF HEARING Y OUR APPELLANT PRA YS YOUR HONOUR TO CONSIDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND RENDER JU S TICE. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE IS WIFE OF SHRI M. GANGI REDDY WHOSE RESIDENTIAL PREMISES WERE SUBJEC T TO A SEARCH ACTION U/S. 132 OF THE INCOME-TAX ACT 1961 [HEREINAFTER R EFERRED TO AS THE ACT IN SHORT]. DURING THE COURSE OF SEARCH CERTAIN INCRI MINATING DOCUMENTS WERE FOUND AND SEIZED WHICH INCLUDED CERTAIN DOCUMENTS RELATING TO INVESTMENT MADE BY THE ASSESSEE BUT NOT DISCLOSED TO THE DEPA RTMENT. THE AO AFTER RECORDING THE REASONS ISSUED NOTICE U/S. 153C OF TH E ACT TO THE ASSESSEE WHO IN RESPONSE TO THE SAID NOTICE FILED THE RETURN OF INCOME ON 26.03.2008 DECLARING THE SAME INCOME WHICH WAS DECLARED IN THE EARLIER RETURN OF INCOME FILED ON 12.06.2002 VIZ. RS.1 39 892 AND AG RICULTURAL INCOME OF RS.97 000. LATER ON THE ASSESSEE FILED REVISED RE TURN OF INCOME ON 15.12.2008 DECLARING THE SAME INCOME AND CLAIMING D EDUCTION U/S. 80L AT RS.8 159 AS AGAINST RS.9 000 CLAIMED EARLIER. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN CONNECTION WITH THE SOURCES OF FUNDS FOR INVESTMENTS IN IMMOVABLE P ROPERTIES THE ASSESSEE ITA NOS.624 & 625/BANG/11 PAGE 3 OF 6 HAD EXPLAINED SOME SOURCES OF FUNDS AS MATURITY VAL UE OF FDRS CREDITED TO HER SB A/C. 15362 AT BANK OF INDIA JAYANAGAR BRANC H BANGALORE. THE AO ASKED THE ASSESSEE TO FURNISH THE DETAILS OF FDRS I .E. THE DATE OF DEPOSIT AMOUNT INVESTED INTEREST RECEIVED SOURCES OF FUND S FOR INVESTMENT WITH PROOF. IN RESPONSE IT WAS SUBMITTED THAT ONE FD N O.1005 WAS MADE ON 14.8.2001 BY ISSUE OF CHEQUE NO.3735 THIS FD WAS F OR ONE YEAR WHICH MATURED ON 14.8.2002 AND THE SAME WAS RENEWED ON 14 .8.02 THE MATURITY VALUE WAS RS.3 26 324. THE ASSESSEE ALSO FURNISHE D A PHOTOCOPY OF THE LETTER DATED 15.12.08 FROM THE BANK OF INDIA JAYAN AGAR BRANCH BANGALORE. THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF TH E ASSESSEE AND ADDED A SUM OF RS.3 11 304 AS UNEXPLAINED INVESTMENT U/S. 6 9 OF THE ACT BY STATING THAT NO DOCUMENTARY EVIDENCE WAS PRODUCED BY THE AS SESSEE. 5. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A ) WHO POINTED OUT THAT THE APPEAL MEMO IN FORM 35 REVEALED THAT THE A PPEAL BY THE ASSESSEE WAS BELATED BY 705 DAYS. HE ALSO STATED THAT THE AS SESSEE HAD FILED PETITION REGARDING CONDONATION OF DELAY IN FILING O F THE APPEAL. THE ASSESSEE EXPLAINED THE REASON FOR DELAY IN FILING T HE APPEAL BY STATING AS UNDER: THERE IS NO WILFUL OR MALAFIDE INTENT FOR THE DELA Y IN FILING THE APPEAL. THE FACT IS THAT THE UNINTEN T IONAL DELAY IS ON ACCOUNT OF THE GENUINE REASON THAT MY AUTHORISED REPRESENTATIV E FAILED TO STUDY THE ORDER IN DETAIL AND COMMUNICATE TO ME THE MERITS OF THE CASE. THE DELAY IN FILING THE APPEAL BEING ON ACCO UNT OF BONAFIDE REASONS WHICH IS NOT DELIBERATE I REQUEST THE HON'B LE COMMISSIONER TO CONDONE THE DELAY AND ADMIT THE APP EAL PETITION IN THE INTEREST OF EQUITY AND JUSTICE. THE ENDS OF JUSTICE WILL BE MET IF THE . DELAY IS CONDONED APPEAL IS ADMITTED AND DECIDED ON MERITS.' ITA NOS.624 & 625/BANG/11 PAGE 4 OF 6 6. THE LD. CIT(APPEALS) WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE BY OBSERVING THAT ANY VAGUE OR GENERAL STA TEMENT THAT THE DELAY HAS BEEN CAUSED DUE TO ASSESSEES COUNSEL WOULD NOT CONSTITUTE SUFFICIENT CAUSE FOR CONDONING THE DELAY AND HENCE PARTICULARS ABOUT COUNSEL AND OPINION GIVEN BY HIM WAS REQUIRED TO BE FURNISHED. HE FURTHER OBSERVED THAT ASSESSEES COUNSEL MUST HAVE TAKEN INTO THE ME RIT OF THE CASE AND DEEMED IT FIT TO FILE THE APPEAL WITHIN TIME. HE A LSO OBSERVED THAT THE APPEAL HAD BEEN FILED DUE TO LEVY OF PENALTY U/S. 2 71(1)(C) OF THE ACT. THE LD. CIT(A) DID NOT CONDONE THE DELAY IN FILING THE APPEAL AND DISMISSED THE SAME IN LIMINE . NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAD NOT GIVEN PROPER OPPORTUNITY AND HAD NOT CONSIDERED THE EXPLANATION GIVEN BY THE ASSESSEE FOR DELAY IN FILING THE APPEAL BEFO RE HIM. HE ALSO SUBMITTED THAT THE LD. CIT(A) OUGHT TO HAVE CONDONE D THE DELAY AND DECIDED THE APPEAL OF THE ASSESSEE ON MERIT BUT TH AT HAS NOT BEEN DONE. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SU PPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT T HE ASSESSEE HAD NOT EXPLAINED THE REASON FOR FILING THE APPEAL BELATEDL Y AND SINCE THERE WAS INORDINATE DELAY OF 705 DAYS FOR FILING THE APPEAL BEFORE THE LD. CIT(A) THEREFORE HE WAS JUSTIFIED IN DISMISSING THE SAME IN LIMINE BECAUSE THE APPEAL FILED BEYOND ALLOWABLE TIME WAS NOT MAINTAIN ABLE. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE IT IS NOTICED THAT THE LD. CIT(A) AT PAGE NO. 7 OF THE IMPUGNED ORDER CATEGORICALLY STATED THAT PARTICULARS OF COUNSEL AN D OPINION GIVEN BY HIM ITA NOS.624 & 625/BANG/11 PAGE 5 OF 6 WAS REQUIRED TO BE FURNISHED TO EXPLAIN THE DELAY I N FILING THE APPEAL. HOWEVER IT IS NOT CLEAR AS TO WHETHER OPPORTUNITY AND SUFFICIENT TIME WAS ALLOWED TO THE ASSESSEE TO FURNISH THE SAME BECAUSE IN THE IMPUGNED ORDER NOTHING IS MENTIONED ABOUT THE SAME. IT IS W ELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE PRINCIPLES O F NATURAL JUSTICE EMBODIED IN THE MAXIM AUDI ALTERAM PARTEM . WE THEREFORE DEEM IT FIT TO REMAND THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A ) TO BE DEICED AFRESH IN ACCORDANCE WITH THE LAW AFTER PROVIDING DUE AND REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. THE APPEAL IN ITA NO.625/BANG/2011 RELATES TO P ENALTY U/S. 271(1)(C) OF THE ACT. IT IS WELL SETTLED THAT THE OUTCOME OF THE PENALTY DEPENDS UPON THE QUANTUM APPEAL AND SINCE WE HAVE R EMANDED BACK THE CASE TO THE LD. CIT(A) ON QUANTUM THEREFORE THIS ISSUE RELATING TO THE PENALTY U/S. 271(1)(C) IS ALSO RESTORED TO THE LD. CIT(A) TO BE DECIDED ALONG WITH THE APPEAL OF THE ASSESSEE ON QUANTUM. 11. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF FEBRUARY 2012. SD/- SD/- ( GEORGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE DATED THE 16 TH FEBRUARY 2012. DS/- ITA NOS.624 & 625/BANG/11 PAGE 6 OF 6 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE.