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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B”: HYDERABAD
Before: SHRI V. DURGA RAO & SHRI D.S. SUNDER SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”: HYDERABAD
BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER
I.T.A. No. 2193/HYD/2017 Block Period: 1997-98 to 2002-03 & 01-04-2002 to 02-07-2002 M/s.J.J.R. Chaitanya, Asst.Commissioner of HYDERABAD Vs Income Tax, [PAN: AEBPJ3081K] Central Circle-5, HYDERABAD (Appellant) (Respondent)
For Assessee : Shri K.Dhananjaya Naidu, AR For Revenue : Shri Y.V.S.T. Sai, CIT-DR Date of Hearing : 16-10-2019 Date of Pronouncement : 23-10-2019
O R D E R PER D.S. SUNDER SINGH, A.M. : This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax(Appeals)-3, Visakhapatnam, dated 25-09-2017.
In this case, the assessment was completed u/s.143(3) r.w.s.158BD, r.w.s.158BC of the Income Tax Act [Act] on 30-12-2004. Against the said order of assessment, the assessee filed an appeal before the CIT(A) on 08-04-2010 with a delay of 1895 days. The Ld.CIT(A) dismissed the appeal of assessee by sustaining the order of AO without condoning the delay.
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2.1. Against the said order of Ld.CIT(A), the assessee is in appeal before the Tribunal.
In this appeal, the assessee has raised as many as 11 Grounds of Appeal. Out of which, Ground Nos.3,4,5 & 6 are related to non-condonation of delay.
During the appeal hearing, Ld.AR submitted that the due date for filing of appeal before the CIT(A) was 30-01-2005, against which the appeal was filed on 08-04-2010 and there was delay of 1895 days. The Ld.AR submitted that the delay in filing the appeal was due to the Chartered Accountant who handled the appeal matters. Ld.AR further submitted that on receipt of the assessment order, assessee handed-over the appeal papers to the Ld.AR, who was supposed to file the appeal before the CIT(A) within the stipulated time. The AR of the assessee misplaced the appeal papers and did not file the appeal. Later the assessee has changed the AR and filed the appeal with the delay. The Ld.AR further submitted that there was no malafide intention and willful default by the assessee, hence, requested to condone the delay.
4.1. Ld.AR further submitted that the AO made the additions of Rs.2,50,000/- for the AY.2003-04 and Rs.62,500/- for the AY.2004-05 for the Block Period from 1999-2000 to 30-06- 2002 relating to the cash receipts as ‘un-disclosed income’. Ld.AR argued that time limit for filing regular returns was not expired by the time search conducted in the case of searched person hence, the said cash receipts cannot be treated as
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‘un-disclosed income. The Ld.AR further submitted that on identical facts, the Hon'ble ITAT, Hyderabad has considered the issue in the case of N.Srinivasa Rao and others in IT(SS)A No.32/Hyd/2006 and others, dt.13-02-2009 and allowed the appeals of the assessees and granted the relief. Therefore, he argued that the assessee is a small assessee and having strong case in his favour. The Ld.AR further submitted that the assessee is having salary income and had filed regular returns of income for the impugned assessment years i.e., AYs.2003- 04 & 2004-05 admitting the cash receipts also from Sri Chaitanya Educational Committee (SCEC) in the relevant assessment years. Having admitted the income in the regular returns for the relevant assessment years and made the addition in the block assessment the same receipt was taxed twice and caused financial injury to the assessee, therefore, requested to condone the delay and allow the appeal of assessee. In this connection, the assessee relied on various decisions for condonation of delay, including the decision of Hon'ble Supreme Court in the following cases:
i. Union of India Vs. Ibrahim Uddin and others in Civil Appeal No.1374 of 2008, dt.17-07-2012, wherein the Hon'ble Supreme Court has given guidelines for condonation of delay. And also in the case of ii. Collector, Land Acquisition Anantnag and others Vs. Katiji and others in Civil Appeal No.460 of 1987.Referring to para 3 of the judgment of the Hon'ble Supreme Court, the assessee argued that there is no malafide intention and genuine reason for filing the appeal belatedly. Therefore,
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argued that as per the guidelines given in the decision of Hon'ble Supreme Court cited supra, requested to take liberal approach and condone the delay.
4.2. In addition to the above, the AR of the assessee also relied on the following case law:
a. Jayvantsinh N Vaghela Vs. Income Tax Officer – Tax Appeal No.853 of 2013 with Tax Appeal No.854 of 2013; b. N.Balakrishnan Vs. Mr.Krishnamurthy – (1998) 7SSC123; c. Tukaram Kana Joshi and Ors. Thr. Power of Attorney Holder Vs. M.I.D.C. and Ors. – (2013) 1SSC353; d. This Honourable order dated 13.02.2009 in IT(SS)A No.32/Hyd/2002;
On the other hand, Ld.DR vehemently opposed for condonation of delay and placed reliance on the decision of Hon'ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others, Civil Appeal Nos.8183-8184 of 2013, dt.13th September, 2013 and argued that right of appeal given to the assessee is a vested right and there is a life span of filing appeal and there must be an end for litigation. If the assessee resorts dilatory tactics, there is no end for litigation, thus, vehemently opposed for condoning the delay. The Ld.DR taken our attention to para 22 of the order of Hon'ble Apex Court and argued that in the instant case, there is no sufficient and reasonable cause for filing the appeal beyond the time limit allowed under the Act. The Ld.DR also relied on the decision of
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the Hon'ble Bombay High Court in the case of Vama Apparels (India) (P.) Ltd., Vs. ACIT, (2019) [102 taxmann.com 398 (Bombay)], wherein the Hon'ble Bombay High Court held that the negligence on the part of the ex-employee is not a reason for condoning of delay. Accordingly argued that there is no case for condoning the delay, hence, he vehemently opposed the condonation of delay.
We have heard both the parties and gone through the material placed on record. In the instant case, the payments were received by the assessee in cash during the FY.2002-03 for an amount of Rs.2,50,000/- and Rs.62,500/- during the FY.2003-04, which was assessed as ‘un-disclosed income’ in the hands of assessee by the AO in block assessment u/s.158BD of the Act. The assessee also admitted the same income in the regular returns filed by the assessee for the AYs.2003-04 and 2004-05. By the time search conducted, the time limit was available to the assessee for filing the return. Therefore, the assessee had filed the regular returns for the AYs.2003-04 and 2004-05, admitting the cash receipts as income in his hands. The Co-ordinate Bench of ITAT in the case of N.Srinivasa Rao and others in IT(SS)A No.32/Hyd/2006 and others, dt.13-02-2009, allowed the appeals of assessees and held that the said income constitutes regular income. Having filed the cash receipt in the regular returns, the addition made by the AO amounts double addition of same income in the block period as well as in the regular returns of income. Therefore, it causes unnecessary hardship and financial injury to the assessee. The assessee is a small
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employee in the educational institution and the problem is more so in the case of small assesses. Hence, technical default in not filing the appeal within the time limit should not be a reason for non-condonation of delay and we are of the considered opinion that in the interest of the justice, the delay required to be condoned. Accordingly, we condone the delay.
6.1. The next issue is with regard to addition of ‘un-disclosed income’, relating to AYs.2003-04 and 2004-05. We have heard both the parties. In the instant case, the assessee has admitted the said income in the regular returns filed for the AYs.2003-04 & 2004-05 and also filed the acknowledgement copy before us during the course of hearing. This fact was not controverted by the Ld.DR. Since the Co-ordinate Bench of this Tribunal in the case of N.Srinivasa Rao and others in IT(SS)A No.32/Hyd/2006 and others, dt.13-02-2009 has decided the issue in favour of assessee, respectfully following the said decision of the Co-ordinate Bench, we set aside the order of Ld.CIT(A) and delete the addition made by the AO.
In the result, the appeal of assessee is allowed.
Order pronounced in the open court on 23rd October, 2019
Sd/- Sd/- (V. DURGA RAO) (D.S. SUNDER SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 23-10-2019 TNMM
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Copy to :
M/s.J.J.R.Chaitanya, H.No.3-4-33/56, Flat No.103, Padma Apartments, Road No.2, Sumitra Nagar, Kukatpally, Hyderabad.
2.The Asst.Commissioner of Income Tax, Central Circle-5, Hyderabad.
CIT(Appeals)-3, Visakhapatnam.
Pr.CIT(Central), Hyderabad.
D.R. ITAT, Hyderabad.
Guard File.