TMI Blog2020 (4) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... tails and relevant records such as purchase bills, stock registers showing quantitative details, bills and vouchers etc. could not be produced because they were shifted to Mumbai due to closure of office at Bhopal as there being no proper communication from the counsel of the assessee, such records could not be produced. In view of these facts and in the interest of justice, the present matter deserves to be reconsidered at the level of the Ld. CIT(A) who will afford reasonable opportunity of being heard to the assessee and the assessee is also directed to cooperate with the Ld. CIT(A) by filing the relevant evidences and written submissions in support of the claim. Accordingly, we set aside the order of the Ld. CIT(A) and the grounds raised in the assessee s appeal are allowed for statistical purposes only. - ITA No.137/Ind/2019 - - - Dated:- 20-2-2020 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : S/Shri Sumit Nema P.D. Nagar ARs For the Revenue : Shri K.G. Goyal, DR ORDER PER KUL BHARAT, J.M: This appeal by the assessee is directed against order of the CIT(A)-2, Bhopal dated 08.02.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condoned as under the Limitation Act, each day s delay has to be explained. Learned Sr. DR for the assessee also relied on the decision of Hon'ble Supreme Court passed in case of CIT vs. Hapur Pilkhuwa Development Authority (SLP No.26127/2018) on 27.8.2018. 4. We have heard rival submissions and perused material available on record. We find that after receiving the appellate order, the advocate at Bhopal did not take proper care regarding filing of 2nd appeal before the Tribunal and avoided the same by given false assurances regarding filing of writ petition against the appellate order. In support of the same the assessee has also filed affidavit. Therefore, the appeal was submitted late with a separate application for condonation of delay with prayer to admit the appeal by condoning the delay as the advocates did not attend the hearing on any date though the assured from time to time which resulted into the present delay. So far as the judgment of Hon'ble Supreme Court passed in case of CIT vs. Hapur Pilkhuwa Development Authority (SLP No.26127/2018) on 27.8.2018 as relied by the Ld. DR is concerned, the facts are distinguishable because the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication deserves to be allowed. The applicant had engaged a counsel and was, therefore, justified in presuming that counsel would attend to the case. The applicant cannot be made to suffer for the negligence of counsel. We may usefully refer to the following observations of the Supreme Court in Rafiq v. Munshilal, AIR 1981 SC 1400, 1401 : The disturbing feature of the case is that under our present adversary legal system, where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the revenue. We find that in the application seeking condonation of delay, the appellant assessee had clearly stated that the business of the appellant a proprietorship firm was being run in the name and style of a partnership firm viz. M/s. Jetu Seels having two partner Dilip Birani and Anil Birani. The said firm was dissolved w.e.f. 28.11.2008. It has been further stated that the order of CIT(A) was served on the appellant on 22.01.2010. However, the same was misplaced because of voluminous paper work involved pertaining to partnership period owning to dissolution of the firm and it could not be handed over to the counsel for filing the appeal on account of strain of the dissolution of the firm, joint family separation and constant heavy losses. In support of reasons stated in the applications, an affidavit of Dilip Birani, proprietor of appellant firm and affidavit of R.S. Pasari, Manager of the firm were file. The said averments were not controverter by the respondent by filing any counter affidavit. However, the Tribunal vide its order dated 16.12.2011 dismissed the appeal by holding that the appellant had failed to show any reasonable cause for condonation of delay. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate-Collector (L.A.) v. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 sec 106. 9. The meaning to be assigned to the expression sufficient cause occurring in Section 5 of the 1963 Act should be such so as to do substantial justice between the parties. The existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases. 10. The Supreme Court in Oriental Aroma Chemical Industries Ltd. (supra) and R.B. Ramlingam v. R.B. Bhavaneswari, (2009) 2 SCC 689 noticed that the Courts should adopt liberal approach where delay is of short period whereas the proof required should be strict where the delay is inordinate. Further, it was also observed that judgments dealing with the condonation of delay may not lay down any standard or objective test but is purely an individualistic tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions explaining the reasons for fall in gross profit and increase in direct expenses besides increased cost of material which resulted into reduction of gross profit to 33.18%. Just because in A.Y. 2009-10 2010-11, the gross profit was 37.96% and 41.98%, the application of GP rate of 41 % in the year under appeal ignoring the audited accounts along with tax audit report u/s. 44AB of the Act and explanations given was unjustified and Bad in law. 3. That the learned Commissioner of Income tax (A) ought to have considered that relevant records such as purchase bills, stock registers showing quantitative details, bills and vouchers etc. could not be produced because they were shifted to Mumbai due to closure of office at Bhopal. There being no proper communication from the counsel of the appellant, such records could not be produced. In fact because of closure of business, the stock were disposed of by allowing higher discount and commission which resulted in reduction of gross profit rate hence application of GP rate of 41 % and its confirmation by rejecting the book results is unjustified and bad in law. 4. That the learned Commissioner of Income tax (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income tax (Appeals)-II to its Advocate but he did not attend the hearings on any date though assured from time to time. The Commissioner of Income tax (A) dismissed the appeal on all the grounds based on statement of facts narrated in the assessment order. 12. Ld. counsel for the assessee submitted that the learned Commissioner of Income tax(A) erred in not affording reasonable opportunity of being heard while adjudicating the appeal in an ex-parte manner. Ld. CIT(A) did not consider the facts and circumstances of the case viz. closure of Bhopal office and pendency of application for transfer of case records to Mumbai being reasonable and sufficient cause for nonattendance. There was no reason to avoid the hearing when huge demand was created. The appellate order so passed without considering the fact that business was closed due to losses and audited balance sheet and profit loss account were placed on record along with certain details is, unjustified, improper, bad in law and deserves to be quashed. Ld. Commissioner of Income tax (A) did not consider that in written submissions explaining the reasons for fall in gross profit and increase in direct expenses b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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