DILIP JAYANTILAL SHAH,MUMBAI vs. DCIT, CENTRAL CIRCLE-4(3), MUMBAI

We have heard rival submissions of the p We have heard rival submissions of the parties and perused arties and perused the relevant materials on record. We find that the Ld. CIT(A) has the relevant materials on record. We find that the Ld. CIT(A) has the relevant materials on record. We find that the Ld. CIT(A) has dismissed the appeal of the assessee dismissed the appeal of the assessee for late payment of cost of Rs. for late payment of cost of Rs. 5,000/- which was levied by the Tribunal, without deciding the which was levied by the Tribunal, without deciding the which was levied by the Tribunal, without deciding the issue in dispute on merit, issue in dispute on merit, observing as under:

I have considered the facts of the case. 7. 7.

In In In this this this case, case, case, the the the Hon'ble Hon'ble Hon'ble ITAT ITAT ITAT vide vide vide I.T.A. I.T.A. I.T.A. No. No. No. 5412/Mum/2017 dated 02.11.2017 has held as under: 5412/Mum/2017 dated 02.11.2017 has held as under: 5412/Mum/2017 dated 02.11.2017 has held as under:- "5. Having regard to the rival submissions, I am of the "5. Having regard to the rival submissions, I am of the "5. Having regard to the rival submissions, I am of the view that, in the interest of view that, in the interest of justice, the assessee justice, the assessee should be given one more opportunity to present his should be given one more opportunity to present his should be given one more opportunity to present his case properly. At the same time I am of the view that case properly. At the same time I am of the view that case properly. At the same time I am of the view that the assessee should bear a cost of Rs. 5000/- for his the assessee should bear a cost of Rs. 5000/ the assessee should bear a cost of Rs. 5000/ failure failure failure to to to appear appear appear before before before the the the tax tax tax authorities. authorities. authorities. Accordingly, I direct the as Accordingly, I direct the assessee to pay a sum of Rs. sessee to pay a sum of Rs. 5,000/ 5,000/- to the credit of Income Tax Department as to the credit of Income Tax Department as "other fees" on or before 30.11.2017. Subject to the "other fees" on or before 30.11.2017. Subject to the "other fees" on or before 30.11.2017. Subject to the payment of above said fees, I set aside the order payment of above said fees, I set aside the order payment of above said fees, I set aside the order passed by CIT(A) and restore all the issues to the file passed by CIT(A) and restore all the issues to the file passed by CIT(A) and restore all the issues to the file of the AO with the d of the AO with the direction to examine them afresh irection to examine them afresh after affording adequate opportunity of being heard to after affording adequate opportunity of being heard to after affording adequate opportunity of being heard to the assessee. I also direct the assessee to cooperate the assessee. I also direct the assessee to cooperate the assessee. I also direct the assessee to cooperate with the AO for expeditious disposal of the matter" with the AO for expeditious disposal of the matter" with the AO for expeditious disposal of the matter"

Thus, the directions of the Hon'ble ITAT are very clear and Thus, the directions of the Hon'ble ITAT are very clear and Thus, the directions of the Hon'ble ITAT are very clear and specific. The payment of Rs. 5,000/ specific. The payment of Rs. 5,000/- ought to have been ought to have been made before 30.11.2017. The appellant has actually made made before 30.11.2017. The appellant has actually made made before 30.11.2017. The appellant has actually made the payment on 16.05.2018. This office has no option but to the payment on 16.05.2018. This office has no option but to the payment on 16.05.2018. This office has no option but to abide by the directions of a higher Judicial Forum. If the abide by the directions of a higher Judicial Forum. If the abide by the directions of a higher Judicial Forum. If the appellant has any difficu appellant has any difficulty in fulfilling directions of the lty in fulfilling directions of the Hon'ble ITAT or needs any relaxation, he should approach Hon'ble ITAT or needs any relaxation, he should approach Hon'ble ITAT or needs any relaxation, he should approach the same forum. the same forum.

On the issue of judicial discipline, the Hon'ble Supreme 9. On the issue of judicial discipline, the Hon'ble Supreme 9. On the issue of judicial discipline, the Hon'ble Supreme Court in the case of Union of India and Others vs Kamlakshi Court in the case of Union of India and Others vs Kamlakshi Court in the case of Union of India and Others vs Kamlakshi Finance Corporation AIR 199 Finance Corporation AIR 1992 SC 711, 1994 (46) ECC 129, (46) ECC 129, 1991 ECR 486 SC, has held that utmost regard should be 1991 ECR 486 SC, has held that utmost regard should be 1991 ECR 486 SC, has held that utmost regard should be paid by the adjudicating authorities and the appellate paid by the adjudicating authorities and the appellate paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline so as to authorities to the requirements of judicial discipline so as to authorities to the requirements of judicial discipline so as to give effect to the binding orders of the higher appel give effect to the binding orders of the higher appel give effect to the binding orders of the higher appellate authorities.

Under these circumstances, I am of the view that the AO 10. Under these circumstances, I am of the view that the AO 10. Under these circumstances, I am of the view that the AO was right in stating that 'as the condition put forward by the was right in stating that 'as the condition put forward by the was right in stating that 'as the condition put forward by the Hon'ble ITAT has not been adhered to, the total income is Hon'ble ITAT has not been adhered to, the total income is Hon'ble ITAT has not been adhered to, the total income is taken Rs. 13,18,730 assessed as per original assessment taken Rs. 13,18,730 assessed as per original assessment taken Rs. 13,18,730 assessed as per original assessment order. Accordingly, the Grounds raised by the appellant Accordingly, the Grounds raised by the appellant Accordingly, the Grounds raised by the appellant stand DISMISSED. stand DISMISSED.” 2.1 We find that the Ld. CIT(A) has rejected the appeal of the We find that the Ld. CIT(A) has rejected the appeal of the We find that the Ld. CIT(A) has rejected the appeal of the assessee for the reason that assessee failed to deposit the cost of assessee for the reason that assessee failed to deposit the cost of assessee for the reason that assessee failed to deposit the cost of Rs.5,000/- levied, which was directed to be deposite levied, which was directed to be deposite levied, which was directed to be deposited before 30.11.2017, whereas the assessee actually deposited whereas the assessee actually deposited whereas the assessee actually deposited the said amount of cost on 16.05.2018. We are of the opinion that the on 16.05.2018. We are of the opinion that the on 16.05.2018. We are of the opinion that the assessee has complied with the direction to deposit cost of complied with the direction to deposit cost of complied with the direction to deposit cost of Rs.5,000/- though with slight delay of approximately six months. though with slight delay of approximately six months. though with slight delay of approximately six months. In the facts and circumstances of the case, we feel it appropriate to the facts and circumstances of the case, we feel it appropriate to the facts and circumstances of the case, we feel it appropriate to condone the delay in deposit condone the delay in deposit of the cost levied. Since the Ld. CIT(A cost levied. Since the Ld. CIT(A) has not decided the appeal on merit has not decided the appeal on merit, we restore the matter back to we restore the matter back to him with the direction to decide the appeal on me him with the direction to decide the appeal on merit after providing rit after providing adequate opportunity adequate opportunity of being heard to the assessee. The grounds heard to the assessee. The grounds of appeal of the assessee are allowed for statistical purposes. of appeal of the assessee are allowed for statistical purposes. of appeal of the assessee are allowed for statistical purposes.

In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for statistical purposes.