9911796707
TMI Blog2012 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... r's appeal against the order of the Commissioner of Income Tax (Appeals), essentially on the ground that there was a delay of forty five days in filing the same. Moreover, the Tribunal did not permit the petitioner's advocate to appear on that day on that ground that he did not have a power of attorney. This was despite the fact that on the same day, three other appeals for other assessment years in which the advocate had a power of attorney were adjourned to the next date to enable the advocate to set right certain technical defects. The petitioner succeeded in these three appeals before the Tribunal and also before this Court. The petitioner's fourth appeal, which is the subject matter of this writ petition however, has not been heard on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribution towards transfer fees. It was contended that the same having been received by the society from the incoming members was taxable in the hands of the petitioner. It was further contended that the petitioner had collected non-occupancy charges in excess of 10% and was therefore, taxable. The amounts shown by the petitioner as income from house property, was treated as income from other sources. Accordingly, proceedings under section 147 were initiated. 4(A). The assessment was completed under section 143(3) on 31.10.2006 determining the total income of Rs.42,38,329/- by making additions on the above basis. (B). On 26.12.2006, the petitioner filed an appeal before the Commissioner of Income Tax (Appeals), who by an order dated 12.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of defending its case on merits. It is not as if there was no explanation for this delay. As we noted earlier, the petitioner's Manager had resigned on 14.1.2008. Indeed by that date, there was a delay of about nine days. We however, cannot rule out the possibility of the same having occurred on account of the impending resignation. The delay is not of such a nature as to invite such drastic consequences upon an assessee. There is nothing unusual or unreasonable about the petitioner's members and its office bearers having relied upon its staff, especially its Manager in taking all steps necessary for filing the appeal. It must be remembered that the order of the CITA (A) was received by the petitioner from its Chartered Accountant on 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal therefore, rejected an application to have the matter adjourned even by a day and therefore, detagged this appeal from the other three appeals, did not permit the advocate to appear and dismissed the same for default. The order records that no explanation was tendered by the assessee. The fact however, is that the advocate was not permitted to appear on the ground that he did not have an authority in respect of this one out of four appeals. We are clearly of the view that the Tribunal ought to have, in these circumstances, permitted the advocate time to obtain a power of attorney. This was a mere formality. He had already been issued a power of attorney in respect of the appeals for the other three assessment years. We see no j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise entitled to on account of the alleged delay and negligence. The same result ought to follow in respect of the assessment year 2004-2005 if the issues indeed are the same. In the facts and circumstances of this case, there is no warrant for denying the petitioner such relief due to the alleged negligence. 13. On 24.3.2010, the petitioner filed a Miscellaneous Application before the Tribunal for setting aside the order dated 23.7.2009 and for restoration of the appeal. The same was dismissed by an order of the Tribunal dated 14.5.2010 for default. The petitioner remained unrepresented. The order however, was passed on merits. The Tribunal recorded that it had perused the record. 14. For the reasons already stated, we are unable to agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice of motion for condonation of delay. It was contended that in view thereof, this writ petition is not maintainable. We do not agree. This writ petition is comprehensive and challenges all the impugned orders. It is doubtful whether the appeal is maintainable against the orders in the Miscellaneous Applications. In order to obtain complete relief the petitioner cannot be faulted for having filed this writ petition. The petitioner has been put to considerable expenses and effort merely to obtain a hearing on merits. The petitioner can, by no stretch of imagination be said to have waived its rights. This is clear from the fact that the petitioner has duly and diligently prosecuted the appeals in respect of the three other assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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