Income Tax Appellate Tribunal - Ahmedabad
Rushang Rajnikand Maniar, Ahmedabad vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD BENCH "D" AHMEDABAD
Before Shri Mahavir Singh, Judicial Member, and
Shri D. C. Agrawal, Accountant Member
ITA No.3555/ Ahd/2007
Assessment Year :2002-03
Date of hearing:29.9.10 Drafted:30.9.10
Shri Rushaang V/s. Income Tax Officer,
Rainikant Maniar, W ard-11(2), Narayan
Nanavaty& Associates, Chamber, Ahmedabad
rd
A/18, 3 Floor, Narayan
Chambers,
AshramRoad,
Ahmedabad-380009
PAN No. AEHPM7537H
(Appellant) .. (Respondent)
Appellant b y :- Shri A.P. Nanavaty, AR
Respondent by:- Shri A.K. Tiwari, SR-DR
ORDER
PER Mahavir Singh, Judicial Member:-
This appeal by the assessee is arising out of the order of Commissioner of Income-tax (Appeals)-XVII, Ahmedabad in appeal No.CIT(A)-XVII/Wd.11 (4) /Ahd/88/05-06 dated 11-11-2005. The assessment was framed by ITO, Waqrd-11(2), Ahmedabad u/s.s143(3) of the Income-tax Act, 19612 (hereinafter referred to as 'the Act') vide his order dated 30-03-2005 for assessment year 2002-03.
2. At the outset, it is noticed that this appeal is delayed by 541 days and the assessee has filed affidavit narrating reasonable cause as under:-
" Affidavit I, Rushang R Maniar aged about 31 Years residing at "Prashant" Near Jain Merchant Society, Mahalaxmi Charrasta, Ahmedabad hereby solemnly affirm that I am engaged in real estate development. I had developed severe pain in kidney due to stone since 2005. Said illness of severe pain in kidney is since 1std April, 2005. Said pain is recurrent and relapses frequently causing serious setback in physical activities and attending to routine and normal activities. In view of aforesaid problem I could not remain present on date of hearing i.e. 10/11/2005. During the period of hearing of appeal in ITA No.3555/Ahd/2007 A.Y. 2002-03 Sh. Rushang R Maniar v. ITO Wd-11(2) A'bd Page 2 November,2005; I was advised compete rest and treatment during 05/10/05 till 11/01/06. In view of proprietary nature of work I could not advise my chartered accountant to seek adjournment on date of hearing and office of charted accountant was also closed due to Diwali festival after very busy October for auditing and I.T. return filing period upto end of October, 2006. After resumption of work in office after 15/01/06 I found from papers appellate order of C.I.T. (Appeals).Initially, I could not appreciate implications of appellate order of C.I.T.(Appeals) hence I attended only business matter which were urgent and of priority nature. However demand notice dated 28/02/06 was served in the month of March, 2006 and then only inspector of department conveyed to me about dismissal of my appeal and consequently I realized that entire amount of tax is payable because my appeal before C.I.T.(A) dismissed due to non attendance which cause arose because I have not intimated my Chartered Accountant about date of hearing of appeal before C.I.T.(A).
2) However when it came notice of myself about seriousness of appellate order I was again advised to avoid exertion and driving of vehicle by doctors due to severe pain in Kidney. Even though I sent all papers to my chartered account M/s. Nanavaty & Associates around 20th March, 2006 and requested said chartered Accountant to visit my home due seriousness of appellate order. Chartered Accountant visited my residence and discussed matter with me on 20/03/06 outcome of appeal and inquired about reasons of non communications and non attendance in hearing of appeal. As I instructed Chartered Accountant about reasons of non communications and non a attendance of proceedings of appeal, Chartered accountant requested me to obtain certificate of doctors advising and treating me Doctors furnished certificates on 01/04/06. Thereafter Chartered accountant was busy up to 24/04/06 in auditing various branches of banks and insurance companies which are to be completed by 24/04/06 due to directive of finance ministry.
3) I have received appellate order passed by C.I.T.(Appeals) on 7th April, 2005 and in view of the fact that non attendance before C.I.T(A) is due to chronic disease affecting the kidney and according to Sec.154(1) and (2) of I.T. Act, 1961, Ld. C.I.T.(A) has identical powers as provided in Sec.254(2) of the I.T. Act, 1961 to I.T.A.T therefore I was advised to prefer miscellaneous application before C.I.T.(A) for recalling appellate order. I preferred such miscellaneous application alongwith original medical certificates however Ld. C.I.T.(A) has not agreed to such proposition and Ld. C.I.T.(A) dismissed such miscellaneous application and said order was communicated to me vide letter of C.I.T(A) no. CIT(A)-XVII/Ahd/154/2006-07 dated 26/03/2007 and received by me on 15th April,2007 therefore I remained under bonafide impression that there is no need to prefer an appeal before I.T.A.T. simultaneously alongwith miscellaneous application before C.I.T(A) in view of this I failed to prefer an appeal before C.I.T.(A) upto 15th April, 2007.
4) Thereafter I was having knowledge of preferring an appeal before I.T.A.T. paid appeal fee of Rs.10,000/- on 30th July, 2007 and appeal was also ready on its due date however due to chronic disease of kidney I again could not visit Chartered-Accountant for the purpose of signature and I visited ITA No.3555/Ahd/2007 A.Y. 2002-03 Sh. Rushang R Maniar v. ITO Wd-11(2) A'bd Page 3 Chartered-Accountant for signature on24/08/2007 and my Chartered- Accountant filed appeal papers on 24th August 2007 itself. Thus I due to physical disability arising out of disease of kidney which is of chronic nature has caused delay in filing appeal before I.T.A.T.
5) If the delay in preferring appeal before I.T.A.T is not condoned bonafide issues shall not be adjudicated due to bonafide reasons for delay in preferring appeal before I.T.A.T by me."
3. We find from the arguments of both the sides that there is reasonable cause in filing the appeal by the delay of 541 days as the order of CIT(A) dated 11-11-2005 was received on 31-12-2005 but during that period the assessee was suffering from kidney stone and further in April'06 i.e. on 27-04-2006 the assessee moved a rectification application before the CIT(A) for recalling of ex parte order. The CIT(A) rejected the miscellaneous application vide order dated 26-03-2007 and after that the assessee deposited appeal fee on 30-07-2007 and the appeal was filed on 24- 08-2007. As the assessee was availing alternative remedy and was also suffering from kidney problem, due to that the appeal got delayed. We find the cause as reasonable and accordingly we admit the appeal. It is seen that the order of CIT(A) is an ex parte order hence, the appeal is remitted back to the file of CIT(A) for re- hearing after providing reasonable opportunity of being heard to the assessee.
4. In the result, assessee's appeal is allowed for statistical purposes.
Order pronounced in Open Court on 08 /10/2010
Sd/- Sd/-
(D.C.Agrawal) (Mahavir Singh)
(Accountant Member) (Judicial Member)
Ahmedabad,
Dated : 08/10/2010
*Dkp
Copy of the Order forwarded to:-
1. The Assessee.
2. The Revenue.
3. The CIT(Appeals)-XVII, Ahmedabad
4. The CIT concerns.
5. The DR, ITAT, Ahmedabad
6. Guard File.
BY ORDER,
/True copy/
Deputy/Asstt.Registrar
ITAT, Ahmedabad