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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA & SHRI LALIET KUMAR
Shri W.S. Basheer, Prop: Wawanna Hardware, The Income Tax Officer, 279, 27th Cross, 3rd Block, vs. Ward 7 (2) (4), Jayanagar, Bangalore. Bangalore – 560 011. PAN: AAGPW9544B APPELLANT RESPONDENT Appellant by : Shri S. Ramasubramanian, CA Respondent by : Shri R.N. Siddappaji, Addl. CIT (DR) Date of hearing : 20.11.2018 Date of Pronouncement : 29.11.2018 O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee and the same is directed against the order of ld. CIT (A)-7, Bangalore dated 01.11.2017 for Assessment Year 2012-13.
2. The grounds raised
by the assessee are as under. “1. That the order of the learned Commissioner of Income Tax (Appeals), in so far it is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in not condoning the delay for filing the appeal even though there is a sufficient and reasonable cause for such delay.
3. That the learned Commissioner of Income Tax (Appeals) ought to have condone the delay keeping in the mind that the delay has not occurred due to the mistake of Appellant.
4. That the learned Commissioner of Income Tax (Appeals) ought to have held that levying penalty u/s. 271(1)(c) of the Act is bad in law since there is neither concealment of income nor furnishing inaccurate particulars at the time of assessment.
5. That the notice issued u/s. 274 r.w.s 271(1)(c) of the Act does not clearly indicate whether it is a case of concealment of income or furnishing of inaccurate particulars of income
6. That the notice u/s. 274 of the Act does not satisfy the requirements of Sec. 274 as no details regarding concealment of income or furnishing of inaccurate particulars of income were furnished in the notice.
Page 2 of 6 7. That the Assessment Order does not record any satisfaction that the appellant has concealed income or furnished inaccurate particulars thereof and therefore, levy of penalty u/s. 271(1)(c) is bad in law.
That the learned lower authorities erred in law and on facts in confirming the penalty on the addition of 25% of sundry creditors made on ad-hoc basis.
That the learned lower authorities erred in law and on facts in confirming the penalty on the disallowance of 25% of total expenditure debited to Profit and loss account on ad-hoc basis.
That the learned lower authorities erred in law and on facts in confirming the penalty on the addition of unsecured loans on the ground that PAN is not mentioned in the confirmation letters. Each of the above grounds is without prejudice to one another and the appellant craves leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or otherwise modify one or more of the above grounds either before or at the time of hearing of this appeal.”
3. At the very outset, it was submitted by ld. AR of assessee that this appeal is in course of penalty proceedings initiated by the AO u/s. 271(1)(c) of IT Act and as per the impugned order of CIT(A), he has dismissed the appeal of the assessee on this basis that there is delay in filing of appeal before CIT(A) and the assessee has failed to give sufficient reason for delay in filing of the appeal and hence, the delay cannot be condoned. He further submitted that the delay in filing of this appeal before ld. CIT(A) was of 94 days and this was the explanation of the assessee before the CIT(A) that the delay in filing the appeal is due to the mistake of the Chartered Accountant who was handling the matter and affidavit of the said Chartered Accountant was also filed before CIT(A). Thereafter, he submitted that in quantum appeal also, for the same assessee and for the same year, there was delay in filing of appeal before CIT(A) of 229 days and the quantum appeal of the assessee was also dismissed by the CIT(A) in limine without condoning the delay of 229 days in filing the appeal before CIT(A). He submitted that against this order of CIT(A) in quantum proceedings also, the assessee filed an appeal before Tribunal and he filed the copy of Tribunal order rendered in assessee’s own case in dated 06.12.2017 and pointed out that as per para 4.3.3 of this Tribunal order, the Tribunal has condoned the delay of 229 days in filing the appeal before CIT(A) by following the judgement of Hon’ble Apex Court rendered in the case of Collector, Land Acquisition Vs. Mst. Katiji& Others as reported in Page 3 of 6 (1987) 167 ITR 471(SC). He also submitted that the explanation of the assessee about reasons for delay in filing the appeal before CIT (A) in quantum and penalty proceedings are same and therefore, in was his submission that the delay in filing of appeal in penalty proceedings should also be condoned and the matter should be restored back to the file of CIT(A) for decision on merit. The ld. DR of revenue supported the order of CIT(A).
We have considered the rival submissions. First of all, we reproduce paras 4 and 5 from the impugned order of CIT(A) because in these two paras, the delay in filing of appeal and the assessee’s explanation in this regard etc. are noted. These paras are as under. “4. In this case order dated 30.09.2015, U/s 271(1)(c) of Income Tax Act, 1961, passed by Income tax Officer, Ward-7(2)(4), Bangalore and the demand notice were received by the appellant 01.10.2015. Hence, the appeal which has been instituted on 02.02.2016 is found to be delayed by 94 days. The appellant has filed an application along with form 35 requesting for condonation of this delay. It has been submitted as under:
1. 1. The learned Income-tax officer, Ward -7(2)(4), Bangalore passed Order dated 30.09.2015 u/s 271(1)(c) of the Income tax Act, 1961(Act) 2. The said Order was received by the appellant on 01.10.2015.
3. The delay in filing the appeal is due to the mistake of my Chartered Accountant and an affidavit containing full facts is enclosed to this application.
4. The appeal had to be filed by 30.10.2015.
5. The appeal is being filed on 01.02.2016.
6. There is a delay of 94 days in filing the appeal. It is prayed that the learned Commissioner of Income tax (Appeals), Banglore be pleased to condone the delay of 94 days in filing the appeal and admit the appeal on merits in interest of equity, justice and good conscience. An affidavit dated 27-01-2016 by the CA of the appellant Shri TP Shivaprasad has also been filed that mentions the following: I, TalurPompathyShivaprasad aged about 44 years. s/o. T.Pompapathy presently residing at T-7, 3rd floor, Lakshmi Complex, No.40, KR Road, Banglore-560002 do hereby solemnly affirm to the following: 1. I am a chartered Account and representing Sri. W.S. Basheer, No564, 10th cross, KR Road, 3rd block Jayanagar, Bangalore- 560011 before Income Tax Authorities.
I appeared as Authorized Representing before the learned assessing officer in respect of Income tax proceedings for AY 2012-13.
I received the order u/s. 271(1)(c) of the Act dated 30.09.2015 for the above assessment year on 05.10.2015. 4. Due to my preoccupation with other work, the fact that the appeal has to be filed within 30days from the receipt form the order u/s. 271(1)(C) of the Act completely escaped my attention. During December, 2015 when I was reviewing various files, I found that the appeal has not been filed before CIT(A) against the assessment order for AY 2012-13 passed in the case of Sri W.S. Basheer. Immediately I entrusted the work of filling of the appeal to M/s. MSSV & Co. Chartered Accountants, Bangalore. The appeal for the AY 2012-13 is filed belatedly in case of Sri. W.S.Basheer. It is prayed that the delay in filing the appeal may kindly be condoned as mistake is not due to Mr. WS. Basheer. The delay has occurred unintentionally in our office due to number of files handled by us. It is also prayed that the delay to be condoned because the client should not suffer from unintentional omission on part of his Authorised Representative. omission on part of his Authorised Representative. 1 hereby confirm that what is stated above is true to the best of my knowledge and information. 5. The submissions of the appellant and facts of the case have been considered. I have carefully considered the Affidavit filed by Shri TP Shivaprasad, CA. The Appellant has pleaded that the delay was due to the mistake on the part of the CA. In the affidavit filed, the CA Shri TP Shivaprasad has submitted that the mistake is unintentional and due to large number of cases handled by him.” 7. Now we reproduce Para no. 4.3.3 from the Tribunal order in assessee’s own case for same year in quantum proceedings. The same is as under. “4.3.3 As mentioned and discussed at para 4.3.2 (Supra), the Hon'ble Apex Court in the case of MST. Katiji& Others (Supra), has explained and laid down the principles to be kept in mind while considering an application for condonation of delay. The Hon'ble Apex Court has emphasized that substantial justice should prevail over technical considerations. The Hon'ble Court explained that every days delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational, common sense and pragmatic matter. Keeping in mind the aforesaid principles laid down by the Hon'ble Apex Court; the fact that a litigant does not stand to benefit by lodging the appeal late and also the fact that the condonation of the delay and directing that the appeal be adjudicated on merits would cause no loss to Revenue as legitimate taxes payable in accordance with law alone will be collected, we find that this is a fit case for condonation of delay of 229 days in filing the appeal before
Page 5 of 6 the ld CIT(A) and do so. We accordingly set aside the impugned order of the ld CIT(A) and restore the matter to the file of the ld CIT(A) for consideration and adjudication on merits of the grounds raised by the assessee. Needless to add, the ld CIT(A) will afford the assessee and the AO adequate opportunity of being heard on all issues raised by the assessee in the appeal before him before adjudicating thereon in accordance with law. We hold and direct accordingly. Consequently, ground No.2 of assessee's appeal is allowed.”
8. From the above Para reproduced form the Tribunal order, it is seen that in that case, there was delay of 229 days in filing of appeal before CIT(A) and the same was condoned by the Tribunal by following the judgement of Hon’ble Apex Court rendered in the case of Collector, Land Acquisition vs. Mst. Katiji& Others (supra). The reasons for delay in filing of appeal before CIT(A) in quantum proceedings as well as penalty proceedings are stated to be same i.e. the mistake of the Chartered Accountant of the assessee. No difference in facts could be pointed out by ld. DR of revenue and hence, by respectfully following the earlier Tribunal order in assessee’s own case in quantum proceedings for the same year, we condone the delay in the penalty proceedings also and therefore, we set aside the order of CIT(A) and restore the matter back to his file for consideration and adjudication on merit of the grounds raised by the assessee after providing adequate opportunity of being heard to both sides. In view of this decision, no adjudication at present is called for on merit.
9. In the result, the appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.