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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JM & SHRI RAMIT KOCHAR, AM
आदेश / O R D E R
PER SHAILENDRA KUMAR YADAV, JM These appeals are filed by the assessee against the respective orders of CIT(A) on quantum as well as penalty.
In ITA 555/Mum/2010 assessee raised the following grounds:
“On the facts & circumstances of the case and in law, the Learned CIT(A) erred in: -
confirming the order dated 14.3.2006 passed by the ITO 8(1)(3) u/s. 144 of I.T. Act, 1961 assessing the income at Rs.88,39,390 as against the returned income of Rs.80,290/- 2. not admitting & appreciating the details filed by the appellant U.R.. 46A of I.T. Rules, 1962. 3. Not remanding the matter to the Income Tax Officer with a direction to examine various details tendered by the appellant after granting one more opportunity to the appellant in the interest of justice.” 3. At the time of hearing it was pointed out that there is a delay of 930 days in filing the appeal. With regard to the delay assessee has filed an affidavit by Shri Ajay P Bali, Director of the company, inter alia, submitting as under: -
“i. Your Applicant is a Company engaged in the business of travel agency & allied services. ii. The return of income for the A. Y. 2003-04 was filed on 28.11.2003 declaring an income of Rs. 80,290. iii. The applicant's case was selected under scrutiny & several notices of hearing were issued by the Respondent from time to time asking for various details. iv. Eventhough the notices received were tendered by the Applicant to its Chartered Accountant Sh. Rakesh Sirsalewala. The Chartered Accountant failed to appear before the assessing officer from time to time & tender the details. v. As a result of the above, the assessing officer was compelled to pass an order dated 14.3.2006 u/s. 144 of I. T, Act, 1961 assessing the income of the applicant at Rs. 88,39,390 as against the returned income of Rs.80,290. vi. Aggrieved by the above order dated 14.3.2006, your applicant filed an appeal with CIT (A) - VIII, Mumbai on 26.4.2006. vii. Eventhough various details were tendered by the applicant before CIT(A) - VIII the same were not admitted by the CIT (A) - VIII.
_ - - viii. The case before the CIT (A) - VIII was fixed up for hearing on many occasions as detailed in his order but the C. A. of your applicant did not attain any of those hearings. ix. As a result of the above, the CIT (A) - VIII was compelled to dismiss the appeal filed by the applicant x. The order was passed by CIT (A) on 19.06.2007 which was received by applicant on 06.07.2007 and thereafter the original copy of order was handed over by applicant to C.A. alongwith an amount of Rs.10,000 being fees for filing appeal with Hon'ble Tribunal. xi. Eventhough the fee for filing appeal with Hon'ble Tribunal was Triabunal was deposited on 30.08.2007, the C.A. did not file the appeal with Hon'ble Tribunal as well as he did not intimate applicant about not filing the appeal. The fact of not filing appeal was hidden from the applicant by the said Chartered Accountant. xii. The Applicant learnt about the non filing of the appeal with Hon'ble Triabunal when it was confronted by the department for the recovery of the demand of Rs. 42,22,411. xiii. The Applicant thereafter approached the Chartered Accountant for an explanation on which the Chartered Accountant tendered his apology as well as his solemn affirmation before the notary that he had not communicated the applicant about non filing of the appeal against the same with the Hon'ble Tribunal. The CA also affirmed that he had misplaced the original order of CIT (A) - VIII as well as the challan for the appeal fees of Rs. 10,000 deposited on 30.08.2007. xiv. And now the Applicant has filed an appeal with this H'ble Tribunal on 22 0 2010 after delay of 930 days. From the above facts & the circumstances, it is clear xv. that the entire mess during assessment proceedings as well as appellate proceedings was caused by the said Chartered Accountant on account of his repeated failures to appear before the authorities & tender the details. This stands confirmed from his affidavit dated 19.01.2010. xvi. Further eventhough the appellate order was passed in June, 2007, your applicant was not made aware about non filing of the appeal with Hon'ble Tribunal by the Chartered Accountant & hence, the delay in filing the present appeal. xvii. The Applicant would humbly like to state that it will be put in a financial problem if the delay is not condoned & the appeal is not heard on merits. The Applicant's financial position is precarious & it is not in a position to pay a huge amount as demanded by the department. xviii. Having regard to the above facts & the circumstances, your applicant would humbly request the H'ble Bench to condone the delay in filing this appeal and admit the appeal for hearing on merits of the case.”
Substance of the condonation petition is that the delay in filing the appeal is attributable to the laps on the part of the concerned Chartered Accountant. It is settled legal position that assessee should not suffer for the lapse on the part of the authorized representative of the assessee but at the same time assessee has not taken due care for handling the matter. So in the interest of justice we condone the delay and restore the matter to Assessing Officer with a direction to decide the same as per facts and law after providing due opportunity to the assessee. This appeal is allowed for statistical purpose subject to payment of cost of `10,000/- to the Legal Aid of Hon'ble Bombay High Court.
Similarly, we find that assessee also filed appeal against the order of penalty under section 271(1)(c) of the Act in on following grounds: -
“1) The Learned Assessing Officer {Assistant Commissioner, Range 8(1), Mumbai} has erred in levying penalty of Rs.32,18,970/- u/s. 271(1)(c) of the Income Tax Act. The Learned Commissioner of Income Tax (Appeals) 16, Mumbai has further erred in partly holding the penalty levied by the Assessing Officer.” 6. Penalty is consequential to the quantum addition. So following the analogy and in the interest of justice we set aside the penalty issue at hand to Assessing Officer with a direction to decide the same as per facts and law after providing due opportunity to the assessee.
This appeal is also allowed for statistical purposes subject to payment of `10,000/- as legal aid of Hon'ble Bombay High Court. Since we restored both these matters on preliminary issue of condonation, we refrain from commenting on the issues on merit.
In the result, appeals filed by the assessee are allowed for statistical purposes. प�रणामतः िनधा�रती क� अपील� आंिशक �वीकृत क� जाती है । Order pronounced in the open court on 30th October, 2015. आदेश क� घोषणा खुले �यायालय म� �दनांकः 30.10.2015 को क� गई । Sd/- Sd/- (RAMIT KOCHAR) (SHAILENDRA KUMAR YADAV) लेखा सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER मुंबई Mumbai, �दनांक Dated 30th October, 2015
आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to :