Sumit A. Basu, Mumbai vs Assessee
- CitationI.T.A. No.6166/Mum/2011
Ratio decidendi
The rule this decision rests on
The Tribunal held that, where a delay in filing an appeal is not attributable to any laches on the part of the appellant, the condonation of delay should ordinarily be decided by reference to the cause of substantial justice rather than technical considerations, and that a party cannot claim a vested right in an injustice arising from a non-deliberate delay. The Tribunal held that a first appellate authority which declines to condone a delay in the absence of laches, where the assessment itself raises substantial questions of justice, fails to exercise its judicial discretion properly, and the matter is therefore liable to be restored to that authority for a decision on the merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ी जो ग दर संह, या यक सद य एवं ी संजय अरोड़ा, लेखा सद य के सम ।
BEFORE SHRI JOGINDER SINGH, JM AND SHRI SANJAY ARORA, AM
आयकर अपील सं./I.T.A. No.6166/Mum/2011 ( नधारण वष / Assessment Year: 2008-09) Sumit A. Basu ITO-25(2)(3), Room No. 205, Dheeraj Enclave, बनाम/ Pratyakshakar Bhavan, W. E. Highways, Borivali, Vs. Bandra Kurla Complex, Bandra (E), Mumbai-400 006 Mumbai-400 051 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AFBPB 9295 C (अपीलाथ /Appellant) : ( यथ / Respondent)
अपीलाथ क ओर से / Appellant by : Shri Sumit Basu
यथ क ओर से/Respondent by : Shri Love Kumar
ु वाई क तार ख / सन : 14.01.2015 Date of Hearing Date of Order : 15.01.2015
आदे श / O R D E R Per Sanjay Arora, A. M.:
This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-35, Mumbai ('CIT(A)' for short) dated 11.07.2011, dismissing the Assessee's appeal contesting its assessment u/s.144 of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2008-09 vide order dated 29.12.2010.
2. We have heard the parties, and perused the material on record. We observe that the assessment in the instant case stands made at an income of Rs.32.79 lacs, as against the returned income of Rs.6.42 lacs. The principal additions are toward contract receipts (Rs.17.65 lacs) and disallowance of purchase/expenses charged to the trading account 2 ITA No. 6166/Mum/2011 (A.Y. 2008-09) Sumit A. Basu vs. ITO
(Rs.5.76 lacs). The contract receipts were added on the basis of the Annual Information Report (AIR); it being not known whether the same stood included by the assessee in his disclosed turnover of Rs.404.53 lacs, i.e., as a clearing and forwarding (C & F) agent, or not. The disallowance of purchase/trading expenses is by disturbing the assessee's gross profit rate of 4.57%, assessing it at 6%. As a reading of the assessment order would show, there is no definite information or material and, thus, basis with the Revenue to show or even indicate that the assessee had not disclosed the turnover finding mention in the AIR. Rather, in-as-much as the tax stands deducted at source thereon, and presumably claimed, the same can only be expected to be accounted for. Again, the question would be, if the gross receipt, or only the gross margin thereon, i.e., assuming it to be undisclosed, is liable to be brought to tax as income. Similarly, there is no reference to the assessee's gross profit rate for the earlier or subsequent years, or any other comparable case, to justify the enhanced rate of 6%.
Again, the addition on account of undisclosed turnover, in-as-much as the entire receipt stands assessed as income, would also positively impact the gross profit ratio. In our view, these facts and circumstances are reasons sufficient and compelling enough for the ld. CIT(A) to have, in the interest of justice, condoned the delay of 40 days in the filing of the appeal by the assessee before him. As explained in Collector, Land Acquisition vs. Mst. Katiji and others [1987] 167 ITR 471 (SC), when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. That is, in the absence of laches, which we do not observe in the instant case, the condonation of delay should almost always be guided or decided on the anvil of the cause of justice, which we observe as impelling in the instant case. The ld. CIT(A), therefore, in the exercise of his judicial discretion ought to have in our view condoned the said delay.
We, accordingly, allowing the assessee's Ground # 3 before us, challenging the same, restore the matter back to the file of the ld. CIT(A) to decide the assessee's appeal on merits, i.e., in accordance with the law and after hearing the parties before him. We decide accordingly.
3 ITA No. 6166/Mum/2011 (A.Y. 2008-09) Sumit A. Basu vs. ITO
3. In the result, the assessee's appeal is allowed on the afore-said terms.
Order pronounced in the open court on January 14, 2015
Sd/- Sd/-
(Joginder Singh) (Sanjay Arora) या यक सद य / Judicial Member लेखा सद य / Accountant Member मुंबई Mumbai; दनांक Dated : 15.01.2015 व. न.स./Roshani, Sr. PS आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent 3. आयकर आयु त(अपील) / The CIT(A) 4. आयकर आयु त / CIT - concerned 5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard File आदे शानस ु ार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai
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