Income Tax Appellate Tribunal - Jodhpur
Hissaria Bros. vs Ito on 19 March, 2004
Equivalent citations: [2005]1SOT185(JODH)
ORDER
Maratha, J.M. This appeal has been filed by the assessee and pertains to assessment year 1991-92.
2. The brief facts of the case are that the assessment order in this case was passed on 7-1-1992, which was served on 7-2-1992 and the assessee filed appeal against the said assessment order on 22-2-1992 before the CIT (A)-II, Jodhpur who has passed the impugned order on 1-1-1996. The relevant facts which we could cull out from the available records are that the assessee was waiting for the date of hearing before the CIT (A). The appeal was filed at Jaipur and thereafter there was a change of jurisdiction and the place of hearing. In the meantime, the assessee came to know that the appeal papers did not reach the office of the CIT (A) and some confusion created. The assessee chose to file duplicate appeal on 23-5-1994 and also filed an application for the condonation of delay as a precautionary measure that in case the assessee was unable to prove that it had filed the appeal in time as such the delay can be condoned in that eventuality. This is also a fact that the UPC receipt showing despatch of the appeal papers on 22-2-1992 along with abstract of entry in the counsel's dispatch register and the affidavit of the counsel Sh. S.K. Goyal affirming such filing of the appeal papers were also furnished before the CIT (A) who has also discussed the same in his order. The CIT (A) treated the duplicate appeal beyond limitation and dismissed the same and sustained the additions made by the assessing officer. It is also a fact that the CIT (A) did not decide the issues on merit.
3. We would also not like to touch the merits of the case because this Tribunal being the final fact finding body, is handicapped in coming to the ascertainment of final and full facts, unless the matter is churned before the CIT (A).
4. Now the only issue that remains before us is whether the appeal filed by the assessee before the CIT (A) was well in time and in any case the condonation should have been granted in the given facts and circumstances or not.
5. We have considered the rival submissions made by the representatives of both the parties and perused the records. To our utter surprise, the CIT (A) while using the words 'duplicate appeal' everywhere in his order has given a finding in the end of the impugned order that he considers this appeal as the original one. He has dismissed the appeal on the ground that there were no court fee stamps on the appeal memo also and it was not filed within time and he did not also condone the delay. But we are in agreement with the arguments of the learned aurthorised representative. Shri Suresh Ojha that when the assessee had filed a UPC receipt issued by the post office, which is corroborated with the fact that the appeal, was filed by the counsel on 22-2-1992 before the CIT (A), Jaipur, the affidavit of the counsel and the register entry of the counsel, all go to prove that the assessee had filed the appeal before the CIT (A), Jaipur, in time. But the finding of the CIT (A) that the appeal should have been filed either in person or it should have sent the appeal papers through registered AD well in advance, so as to ensure that the appeal papers reach the concerned office before due date, is not a judicious approach because when the CIT (A) accepts that the assessee sent the appeal papers through the UPC and in one breast he accepts this fact but ignores this on the ground that the assessee should have been more vigilant and taken certain other secure measures, is not a reasonable approach. A prudent man should take the things in its natural way and when once it is a fact that the assessee did send papers on 22-2-1992, which fact is also corroborated by some other evidence on record and coupled with the fact that the jurisdiction of the case was shifted to another place and in the melee some confusion created, the finding of the CIT (A) in this regard is not sustainable. When the CIT (A) is accepting everywhere in his order that the appeal is duplicate, this simple fact goes to inference to any man of ordinary prudence that the assessee had filed the original appeal. Again the CIT (A) has given a finding with regard to the condonation of delay for furnishing the duplicate appeal papers but has not given any reasoning for arriving at the conclusion which he has arrived.
6. We are of the considered opinion that the assessee had filed the appeal on 22-2-1992 by UPC and sent the papers to CIT (A), Jaipur, which is well within time. After accepting this plea of the assessee-appellant, we restore the matter to the file of the CIT (A) for deciding the issues on merits.
7. Before parting, we may mention that although the assessee-appellant has taken the grounds regarding merits of the case but these cannot be disposed of because these do not arise out of the appellate order as of now.
8. In the result, the appeal of the assessee is allowed for statistics.