Income Tax Appellate Tribunal - Pune
Jai Gurudev Developers,, Pune vs Income-Tax Officer, Ward - 11(4),, Pune on 14 September, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE - VIRTUAL COURT
BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (K/Z)
AND
SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER
ITA Nos.1628 to 1631/PUN/2017
निर्धारण वषा / Assessment Years : 2006-07 & 2007-08
Jai Gurudev Developers Vs. ITO, Ward-11(4), Pune
C/o Rajendra Ramdas Kanchar
(Pande)
Balaji Housing Society, S.No.75,
Bldg No.B/14, Baner Gaon,
Pune - 411045
PAN: AAFFJ4157Q
Appellant Respondent
Assessee by Shri Sharad Shah
Revenue by Shri S.P. Walimbe
Date of hearing 10-09-2020
Date of pronouncement 14-09-2020
आदे श / ORDER
PER BENCH :
Out of the captioned appeals, ITA Nos.1628 & 1629/PUN/2017 pertains to assessment year 2006-07 and ITA Nos.1630 & 1631/PUN/2017 pertains to assessment year 2007-08.
2. In all these appeals filed by the assessee before us arises from the respective orders of CIT(A) as on record confirming the orders passed by Assessing Officer for both the assessment years u/s 144 r.w.s. 147 of the Income-tax Act, 1961 (hereinafter referred to as „the Act‟) and also confirming the order of penalty u/s 271(1)(c) of the Act imposed by the Assessing Officer as per orders dated 26.09.2014 & 28.08.2013. That at the very outset, the Ld. AR for the assessee submitted that in all these cases, the Ld. CIT(A) has not decided the issues on merits and have dismissed the appeals of assessee on the ground 2 ITA Nos.1628 to 1631/PUN/2017 Jai Gurudev Developers of non condonation of delay in filing the appeals. In this regard, the Ld. AR for the assessee before us has prayed for condonation of delay and filed separate grounds on which the delay may be condoned. The contents of the said prayer and affidavit filed by the Ld. AR for the assessee are reproduced hereunder:
"With respect to rejection of Condonation of delay by CIT(A) we submit as under and pray that the delay be condoned & matter be remitted back to the file of CIT(A) for adjudicating the issue on merit.
i) The assessee's firm name is M/s Jai Gurudev Developers having 2 partners namely - i) Late Mr. Sunil D Kasture & ii) Rajendra Kachar
ii) One of the partner Late Mr. Sunil Kasture was looking after the accounts & income tax matters of Firm.
iii) However, Late Mr. Sunil Kasture was not keeping a good health since many days.
He died on 28-07-2012.
iv) Therefore, the affairs of the firm were not getting attended & got disturbed.
v) Our only surviving partner Mr. Rajendra Kachar was not fully aware about the income tax proceedings & also the fact that any order was passed in the name of firm.
vi) This fact is also visible from the fact that the no notice has ever got delivered to any person & it is merely by way of pasting on the office.
vii) Thereafter, we made an application before AO for providing copies of the order.
In response thereof we received various orders on 15-04-2015 The details were of have been given in the table hereunder & we have also given the details of technical delay upon receiving the copies of said orders. Particular Date of the order Appeal delay by days Assessment order for AY 06-07 Dt.18-03-2014 392 Penalty order for AY 06-07 Dt. 26-09-2014 202 Assessment order for AY 07-08 Dt. 26-02-2013 777 Penalty order for AY 06-07 Dt. 28-08-2013 594
viii) We had Bonafide reason for delay in filing the appeals, namely non receipt / non information of passing of such orders.
ix) We are attaching an affidavit in this regard. - Annexure 1 We further pray your Honor to consider the below while adjudicating the issue of condoning the delay
i) We had no malafide intentions to file the appeal belatedly. Rather in one year (AY 06-07) the agreement relied upon the Ld. AO for making addition does not belong to us & we are just power of attorney holders for the said agreement. In the assessment order for AY 06-07, at page 2, in the table, the Ld. AO himself mentioned about the same.
ii) The notices were not received by the firm rather even the assessment orders were also affixed at our address. The fact is mentioned in the assessment order. 3
ITA Nos.1628 to 1631/PUN/2017 Jai Gurudev Developers Considering all the above, we pray your Honor to condone the delay in filing the appeal.
For Jai Gurudev Developers Sd/-
Partner"
Encl: A.A. Affidavit I, Mr. Rajendra Kachar, residing at Balaji Housing Society, S. no 75, Bldg B/14, Baner Gaoji, Pune, 411 045, solemnly declare on oath the following -
i) I am only surviving partner in the firm M/s Jai Gurudev Developers having PAN
- AAFFJ4157Q. Another partner in the firm was Late Mr. Sunil Kasture.
ii) Late Mr. Sunil Kasture was looking after the accounts & income tax matters of Firm.
iii) However, Late Mr. Sunil Kasture was not keeping a good health since many days. He died on 28-07-2012.
iv) Therefore, the affairs of the firm were not getting attended & got disturbed.
v) I am the only surviving partner of the firm & was not fully aware about the income tax proceedings & also the fact that any order was passed in the name of firm.
vi) This fact is also visible from the fact that the no notice has ever got delivered to any person & it is merely by way of pasting on the office address.
vii) Thereafter, I made an application before AO for providing copies of the order. In response thereof I received various orders on 15-04-2015. The details were of have been given in the table hereunder & I have also given the details of technical delay upon receiving the copies of said orders.
Particular Date of the order Appeal delay by days Assessment order for AY 06-07 Dt.18-03-2014 392 Penalty order for AY 06-07 Dt. 26-09-2014 202 Assessment order for AY 07-08 Dt. 26-02-2013 777 Penalty order for AY 06-07 Dt. 28-08-2013 594
viii) The firm has Bonafide reason for delay in filing the appeals, namely non receipt/non information of passing of such orders. Whatever stated above is true to the best of my knowledge and belief. This affidavit is made on this 9th day of September 2020 at Pune.
Sd/-
Mr. Rajendra Kachar (Affiant)"
4
ITA Nos.1628 to 1631/PUN/2017 Jai Gurudev Developers
3. Before us, the Ld. AR for the assessee prayed that one last opportunity may be provided to the assessee and principally agreed that there was negligence on the part of the assessee but claimed bonafideness and submitted that if a last opportunity is provided and the matter is restored back to the file of Ld. CIT(A) for both the assessment years in respect of all the appeals, then the assessee would without fail appear before the Ld. CIT(A) with relevant details, evidences as called for by the First Appellate Authority and will represent the case on merits.
4. Per contra, the Ld. DR vehemently opposed the prayer of assessee relying on the observations of Ld. CIT(A) that the assessee is in constant habit of evading the process of law enforced by the Department and inspite of several opportunities given to the assessee by the Assessing Officer, the assessment could only be completed u/s 144 r.w.s. 147/148 of the Act. However, the Ld. DR submitted that with the undertaking of the Ld. AR that he will attend diligently for the hearing before the Ld. CIT(A) and submit details, evidences as called for, therefore, the matter may be restored to the file of Ld. CIT(A) for re-adjudication on merits.
5. On hearing the parties herein, we are of the considered opinion that the rights and liabilities of the parties are yet to be decided on merits by the First Appellate Authority. Even going by the Appeal Memo in the grounds of appeal filed by the assessee, it is stated that the Ld. CIT(A) should have adjudicated the issues on merits. Therefore, taking the facts and circumstances in totality and in the interest of justice, for as a matter of fact that the Income Tax Act is welfare legislation, we are of the view that one final opportunity should be given to the assessee and therefore, we set aside the respective orders of Ld. CIT(A) with a direction to condone the delay in filing the appeals before him and restore the matter back to his file for re-adjudication on merits complying with 5 ITA Nos.1628 to 1631/PUN/2017 Jai Gurudev Developers the principles of natural justice and also we direct the assessee to immediately appear before the Ld. CIT(A) on receipt of this order and cooperate with the proceedings of law with filing details, relevant documents, evidences as and when called for by the Ld. CIT(A), so that the cases can be decided on merits. Thus, all the appeals of assessee are allowed for statistical purposes. Any service of notice is dispensed with.
6. In the result, all the appeals of assessee in ITA Nos.1628/PUN/2017 to 1631/PUN/2017 are allowed for statistical purposes.
Order pronounced in the open Court on 14th September, 2020 Sd/- Sd/-
(P.M. JAGTAP) PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER
पुणे Pune; ददिधांक Dated : 14th September, 2020 GCVSR आदे श की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to:
1. अपीऱधर्थी / The Appellant;
2. प्रत्यर्थी / The Respondent;
3. The CIT(A), Pune-5, Pune
4. The Pr. CIT, Pune-4, Pune
5. DR „A‟ Bench, ITAT, Pune
6. गार्ड फाईल / Guard file आदे शानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune