Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, ‘C’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN & SHRI INTURI RAMA RAO
: Mr.S.Sridhar, Adv. अपीलाथ) क, ओर से/ Appellant by : Mr. R.Clement Ramesh- *+यथ) क, ओर से /Respondent by Kumar, Addl.CIT : 01.08.2019 सुनवाई क, तार�ख/Date of Hearing : 01.08.2019 घोषणा क, तार�ख /Date of Pronouncement आदेश / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER:
This is an appeal filed by the assessee against the Order of the Commissioner of Income Tax (Appeals)-4, Chennai, in 18/AY 2004-05/CIT(A)-4 dated 19.09.2018 for the AY 2004-05.
Shri R.Clement Ramesh Kumar, Addl.CIT, represented on behalf of the Revenue and Shri S.Sridhar, Adv., represented on behalf of the assessee.
It was submitted by the Ld.AR that the Ld.CIT(A) had dismissed the assessee’s appeal without condoning the delay of 11½ years. It was a submission that the issue arose on account of the fact that when the assessee’s appeal for the AY 2005-06 was disposed off by the Tribunal, the Tribunal had given a specific finding that the AO could not have applied the provisions of Sec.94(7)(b) of the Act which was amended w.e.f. 01.04.2005 by the Finance (No.2) Act, 2004 for the AY 2004-05. On account of this finding by the Tribunal in its order in dated 31.05.2017 for the AY 2005-06, the assessee had filed the appeal against the Assessment Order for the AY 2004-05 on 20.09.2017. It was a submission that it was only on account of the findings of the co-ordinate Bench of this Tribunal in the assessee’s own case for the AY 2005-06 that the assessee had been compelled to file the appeal against the Assessment Order for the AY 2004-05. It was a prayer that the Ld.CIT(A) may be directed to dispose off the appeal of the assessee on merits after condoning the delay. It was a submission that when substantial justice is pitted against technicality then technicality must stand down, as has been held by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. Mst.Katiji & Ors., reported in 167 ITR 471 (SC).
In reply, the Ld.DR submitted that there should be finality of the proceedings. The Assessment Order for the AY 2004-05 having reached its finality, it was not open to the assessee to challenge the same, the delay should not be condoned especially in view of the fact that the delay is nearly 11 ½ years.
We have considered the rival submissions.
A perusal of the facts in the present case clearly shows that the assessee’s appeal for the AY 2005-06 has been adjudicated by the Tribunal by an order dated 31.05.2017. In the said order, there is a reference to the AY 2004-05 as also an orbiter finding for the AY 2004-05.
This being so, it cannot be said that the assessee has filed the appeal for the AY 2004-05 as an afterthought. It is admittedly only on account of the said finding that the assessee has filed the appeal as there is no other alternative remedy available to the assessee. This being so, as it is noticed that the delay issue is a technical issue and the delay is not on account of lethargy on the part of the assessee or on account of any malafide reasons. This being so, applying the principles laid down by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. Mst.Katiji & Ors., referred to supra, the delay in filing of the appeal stands condoned. As the Ld.CIT(A) has not adjudicated the issues on merits, the issues in this appeal are restored to the file of the Ld.CIT(A) for adjudication on merits.
In the result, the appeal filed by the assessee is partly allowed for statistical purposes.