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16-04-2019, B. Sumathy, Section 271(1)(c), 147, 148, 144, Tribunal Bangalore

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2 months 1 week ago #9167 by amit
Section - 271(1)(c), 147, 148, 144, 54F, 274, 271
Order Date - 16-04-2019
Favouring - Assessee
Court - Tribunal Bangalore
Appellant - B. Sumathy
Respondent - ITO
Justice - N. V. VASUDEVAN VP & JASON P BOAZ AM
Citation - 419Taxpundit202
Appeal No. - ITA No.1777/Bang/2018
Asstt. Year - 2005-06

Order

PER : Jason P Boaz, A.M

This appeal by the assessee is directed against the ex-parte order of CIT(A)-3, Bangalore, dated 01.03.2018 upholding the levy of penalty of Rs.1,75,000/- under section 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) in Assessment Year 2005-06.

ORDER ON PETITION FOR CONDONAITON OF DELAY IN FILING APPEAL BEFORE TRIBUNAL

2. At the outset, the learned AR for the assessee submitted there was a delay of 19 days in filing this appeal before the Tribunal and an Affidavit sworn to by the assessee dated 24.05.2018 has been filed by the assessee along with the appeal. The learned AR prayed that the delay be condoned in keeping with the principles laid down by the Hon’ble Apex Court in MST Katiji and Others (1987) 167 ITR 471 (SC). The reasons for delay in filing this appeal have been explained in the Affidavit at paras 3 to 8 thereof, a e extracted hereunder:-

1. That being aggrieved by the order of penalty u/s 271[1][c] of the Act passed by the learned A.O. for the aforesaid assessment year, I had instituted an appeal before the learned Commissioner of Income-tax [Appeals]- 1 and later file transferred to the learned CIT[A]-3, BENGALURU.

2. That, the learned Commissioner of Income-tax [Appeals] disposed off the appeal instituted by me in ITA No.432]/CIT[A]-3/BNG/2016-17 by his order dated 0 /03/2018, which was received by my authorized representative on 07/03/2018 and the appeal against the said appellate order ought to have been filed before the Hon'ble ITAT on or before 06/05 2018

3. That, the appeal against the said appellate order came to be instituted before the Hon'ble Income-tax Appellate Tribunal, Bangalore Bench, Bangalore belatedly and there is a delay of 19 days in filing the appeal. The reasons for the delay in filing the appeal are explained hereinafter.

4. That, soon after being informed about the receipt of the aforesaid appellate order by my authorized representative, I could not immediately contact him because I was unwell with back pain and advised bed rest by my Doctors.

5. That, after my recovery also, I was not fully fit and attending to all matters since I was still recuperating and therefore, I was able to contact my AR only recently and by then, the due date for filing the appeal had already expired.

6. That, recently, when I contacted my authorized representative, I was advised that I ought to have filed an appeal against the order of the learned CIT[A] and thereafter I approached M/s. S.VENKATESAN & Co., Chartered Accountants, for seeking further advise in the matter and they advised me to file an appeal immediately by seeking condonation of delay and thereafter, immediate steps were taken to file the appeal before the Hon'ble ITAT.

7. That, the delay in filing the appeal was due to reasonable cause and beyond my control and the delay was neither intentional, willful nor deliberate and was occasioned on account of the reasons stated above.

8. That, it is, therefore, prayed that the delay in filing the appeal may kindly be condoned and the appeal may kindly be admitted and disposed off on merits for the advancement of substantial cause of Justice.

2.2 The learned DR for Revenue opposed the assessee’s plan for condonation of delay.

2.3 We have heard and considered the rival contentions and the material on record in respect of the matter of condonation of delay of 19 days in filing this appeal before the Tribunal. Taking into account the principles laid down by the Hon’ble Apex Court in the case of MST Katiji and Others (supra), wherein the Hon’ble Apex Court laid down the principles for dealing with matters relating to condonation of delay, and the reasons of health issues cited by the assessee in the Affidavit (supra), we are of the view that the assessee was prevented by reasonable and sufficient cause from filing the appeal for Assessment Year 2005-06 on time. In this view of the matter and respectfully following the principles laid down by the Hon’ble Apex Court in the case of MST Katiji and Others (supra), we condone the delay of 19 days by the assessee in filing this appeal before the Tribunal and accordingly admit the assessee’s appeal for Assessment Year 2005-06 for consideration and adjudication.

O R D E R

3. Briefly stated the facts relevant for disposal of this appeal are as under:-

3.1 The assessee filed the return for Assessment Year 2005-06 on 31.05.2005 declaring total income of Rs.1,08,250/-. Proceedings under section 147 of the Act were initiated for this Assessment Year and notice under section 148 of the Act was issued to the assessee on 18.08.20106. As there was no response / compliance by the assessee to notices issued under section 143(2) / 142 of the Act, the assessment was concluded ex-parte under section 144 r.w.s 147 of the Act vide order dated 26 03 2007, wherein the assessee’s income was determined at Rs.9,49,677/-; in view of an addition of Rs.8,41,427/- on account of re-computation of capital gains by virtue of denying the assessee’s claim for exemption under section 54F of the Act.

3.2 Penalty proceedings under section 271(1)(c) of the Act was initiated simultaneously vide notice under section 274 r.w.s. 271(1)(c) of the Act of even date viz., 26.03.2007 in respect of the aforesaid addition. After considering the assessee’s replies in the matter, the AO proceeded to levy penalty of Rs.1,75,000/- under section 271(1)(c) of the Act vide order dated 30.03.2012. On appeal, the CIT(A)-3, vide the impugned ex-parte order dated 01.03.2018, upheld the levy of penalty under section 271(1)(c) of the Act by the Assessing Officer (AO).

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