SMT. VISHALAKSHI DEVI,BENGALURU vs. INCOME TAX OFFICER, WARD-6(4), BENGALURU

The grounds raised by the assessee for Assessment Year 2001-02 in ITA No. 2795/Bang/2017 are as under. “1. The order of the learned Commissioner of Income-tax (Appeals) in so far as it is against the appellant is opposed to law, facts, equity and circumstances of the case. 2. The learned Commissioner of Income-tax (Appeals) was not justified in law in passing the order without giving sufficient opportunity to the appellant and in violation of the principles of natural justice and consequently the order is liable to be set aside on the facts and circumstances of the case.

The grounds raised by the assessee for Assessment Year 2003-04 in ITA No. 2796/Bang/2017 are as under. “1. The order of the learned Commissioner of Income-tax (Appeals) in so far as it is against the appellant is opposed to law, facts, equity and circumstances of the case. 2. The learned Commissioner of Income-tax (Appeals) was not justified in law in passing the order without giving sufficient opportunity to the appellant and in violation of the principles of natural justice and consequently the order is liable to be set aside on the facts and circumstances of the case. 3. The learned Commissioner of Income-tax (Appeals) was not justified in law in dismissing the appeal filed by the appellant on the facts and circumstances of the case. 4. The learned Commissioner of Income-tax (Appeals) was not justified in law in not adjudicating the grounds of appeal filed by the appellant on the facts and circumstances of the case. 5. The order of reassessment is bad in law and void-ab-initio for want of requisite jurisdiction, especially the mandatory conditions to assume jurisdiction under section 148 of the Act did not exist and have not been complied with and consequently the reassessment requires to be cancelled on the facts and circumstances of the case. 6. The learned Assessing Officer was not justified in law in completing the assessment ex-parte under section 144 r.w.s 147 of the Act on the facts and circumstances of the case. 7. The learned Assessing Officer was erred in making an addition of Rs. 28,290/- as additional income on the facts and circumstances of the case. 8. The learned Assessing Officer was not justified in law in making an addition of Rs.1,88,000/- as interest income on the facts and circumstances of the case. 9. The learned Assessing Officer was not justified in law in making an addition of Rs. 27,42,000/- as income from other sources on the facts and circumstances of the case. 10. Without prejudice to the right to seek waiver with the learned CCIT/DG, the appellant denies herself liable to be charged to interest under section 234A, 234B and 234C of the Act which under the facts and circumstances of the appellant's case and the levy deserves to be cancelled.

The grounds raised by the assessee for Assessment Year 2004-05 in ITA No. 2797/Bang/2017 are as under. “1. The order of the learned Commissioner of Income-tax (Appeals) in so far as it is against the appellant is opposed to law, facts, equity and circumstances of the case. 2. The learned Commissioner of Income-tax (Appeals) was not justified in law in passing the order without giving sufficient opportunity to the appellant and in violation of the principles of natural justice and consequently the order is liable to be set aside on the facts and circumstances of the case. 3. The learned Commissioner of Income-tax (Appeals) was not justified in law in dismissing the appeal filed by the appellant on the facts and circumstances of the case. 4. The learned Commissioner of Income-tax (Appeals) was not justified in law in not adjudicating the grounds of appeal filed by the appellant on the facts and circumstances of the case. 5. The learned Assessing Officer was not justified in law in completing the assessment ex-parte under section 144 of the Act on the facts and circumstances of the case. 6. The learned Assessing Officer was not justified in law in making an addition of Rs. 1,80,000/- as rental income on the facts and circumstances of the case. 7. The learned Assessing Officer was not justified in law in making an addition of Rs.1,88,000/- as interest income on the facts and circumstances of the case. 8. The learned Assessing Officer was not justified in law in making an addition of Rs.20,50,000/- as income from other sources on the facts and circumstances of the case. 9. Without prejudice to the right to seek waiver with the learned CCIT/DG, the appellant denies herself liable to be charged to interest under section 234A, 234B and 234C of the Act which under the facts

At the very outset, it was submitted by ld. AR of assessee that these appeals are filed after a delay of 226 days and the assessee has submitted an application for condonation of delay along with an affidavit. Regarding reasons for delay in filing the appeals before the Tribunal, he explained that the assessee changed the auditor and approached the new auditor for further proceedings against the order of the ld. CIT (A) but did not get proper advice regarding filing further appeal before the Tribunal. Then the assessee approached the present counsel along with the new auditor and then only, the assessee got proper advice from the present counsel regarding filing of appeal before the Tribunal and immediately after that, the appeals were filed before the Tribunal. He submitted that in view of the judgment of Hon’ble Apex Court rendered in the case of Collector, Land Acquisition Vs. Mst. Katiji& Others as reported in 167 ITR 471, the delay in filing the appeal should be condoned. He also submitted that there was one more reason which contributed in belated filing of appeal and this was this that as per the order received from the CIT(A), which is enclosed with the appeal memo, the appeal nos. given are ITA Nos. 20,24,25,23,22,21/ITO,W-6(4)/CIT(A)-14/2014-15 but earlier, in the notice issued by CIT(A)-14 (copy of notice dated 16.05.2016 submitted), the appeal nos. given were ITA No. 44,46&47/ITO W 6(4)/CIT(A)-14/2006-07 and because of this fact that in the notice, the appeal nos. given were different and the appeal nos. in the order were different, the assessee was confused and for this reason also, the filing of appeal before the Tribunal was delayed. As against this, the ld. DR of revenue strongly opposed the condonation of delay. She placed reliance on Tribunal order of Bangalore bench rendered in the case of J.N. Chandrashekar Vs. ITO as reported in 160 ITD 653 and also placed

I have considered the rival submissions and the judgments cited by both sides in respect of condonation of delay. I find that the Tribunal order rendered in the case of J.N. Chandrashekar Vs. ITO (supra) on which reliance has been placed by the DR of the revenue is not helping the revenue in the present case because in that case, the reasons given by the assessee for condonation of delay was this that the assessee was engaged in agricultural activities and because his child was studying and there was delay of 338 days in filing of appeal but the Tribunal has noted in that case that the assessee had already claimed his main and dominant activity as business of commission agent of coffee which was proved from deposits in bank and assessee did not explain when board exam of his child took place during the delay in filing the appeal about one year. Hence it is seen that in that case, vague reasons were given by assessee in respect of the delay of about one year being 338 days and for this reason, the request for condonation of delay was rejected by Tribunal. In the present case, this is not the case of the revenue that the reasons given are vague and therefore, in my considered opinion, this Tribunal order does not help the revenue in the present case.

In the second Tribunal order on which reliance has been placed by ld. DR of revenue i.e. Prashant Projects Limited Vs. DCIT (supra), the delay was in filing the appeal before the ld. CIT(A) and regarding the reasons for delay, it was explained that by mistake the appeal was filed before the AO and when this mistake was noticed, the AO was requested to transfer the appeal to the first appellate authority. It was explained in that case that the delay in filing appeal was because of bona fide belief that appeal has been filed before the right forum and therefore, the first appellate authority should have condoned the

Now I examine the applicability of various judgments cited by ld. counsel of the assessee. In the case of Concord of India Insurance Co. Ltd. vs. Smt. Nirmala Devi &Ors. (supra), it was held that delay in filing of appeal due to mistake of counsel is reasonable cause and under these facts, the delay should be condoned if it is found that the mistake was bonafide. In the present case, this is the explanation of the assessee that the assessee approached the present auditor of the assessee but he did not advice properly during the relevant time and later on, he took the assessee to the present counsel who adviced that appeal has to be filed before the Tribunal and therefore, in my considered opinion, this judgment of Hon’ble Apex Court is helping the case of the assessee in the present case. Moreover the judgment of Hon’ble Apex Court rendered in the case of Collector, Land Acquisition vs. Mst. Katiji & Others (supra) also supports the case of the assessee. In this case, it was held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay. Hence, only thing to be seen is this that whether the delay is deliberate and if the delay is not deliberate delay, it should be condoned. In the facts of the present case, in my considered opinion, the delay in filing of appeal is not shown by the revenue as a deliberate delay and hence, by respectfully following this judgment of Hon’ble Apex Court, I condone the delay and the appeals are admitted.

Regarding the merit of these appeals, it was submitted by ld. counsel of the assessee that the appeals were filed before CIT(A) on 31.01.2007 and as per page no. 1 of the order of CIT(A), the date of hearing is noted as 10.11.2008 but the impugned order of CIT(A) is dated 22.02.2017 i.e. after more than 8 years from the date of hearing noted by CIT(A). He also submitted that on page no. 3 of his order, the CIT(A) has noted 5 dates on which he issued notices to assessee for hearing during 31.07.2015 to 23.12.2016 but these notices were not served on the assessee and therefore, no compliance has been made by the assessee. He also submitted that before the AO also, no compliance could be made by the assessee due to some unavoidable reasons and the order was passed by the AO u/s. 144 r.w.s. 147 of the IT Act, 1961.He submitted that in the interest of justice, the matter should be restored back to the file of AO. He submitted that if this is done, the assessee will make proper compliance. The ld. DR of revenue had no serious objection against restoring the matter back to the file of AO.

Therefore, I set aside the order of CIT (A) and restore the matter back to the file of AO for fresh decision in all the three years after providing adequate opportunity of being heard to assessee. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage. Hence I do not make any comment on the merit of the case.

In the result, all the three appeals filed by the assessee are allowed for statistical purposes.