MARIE J. DSOUZA, MUMBAI v. ITO 26(1)-2, MUMBAI

ITA 1942/MUM/2009 | 2004-2005
Pronouncement Date: 22-02-2010 | Result: Allowed

Appeal Details

RSA Number 194219914 RSA 2009
Assessee PAN ABVPD4734A
Bench Mumbai
Appeal Number ITA 1942/MUM/2009
Duration Of Justice 10 month(s) 23 day(s)
Appellant MARIE J. DSOUZA, MUMBAI
Respondent ITO 26(1)-2, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 22-02-2010
Assessment Year 2004-2005
Appeal Filed On 30-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B: MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SHRI R.S. PADVEKAR(JM) ITA NO. 1942/MUM/2009 (ASSTT. YEAR : 2004-05) MRS. MARIE J. DSOUZA APPELLANT 5 ROSITA CHS LTD. 6 BSD HILL ROAOD OFF VARODA ROAD BANDRA (W) MUMBAI 400 050 PAN : ABVPD4734A V/S. I.T.O 26(1)-2 MUMBAI RESPONDENT INCOME TAX OFFICE CHARNI ROAD MUMBAI APPELLANT BY : SHRI M. SUBRAMANIAN RESPONDENT BY : S/SHRI S.S. RA NA/ SATISHCHANDRA (DR) : O R D E R : PER R. S. PADVEKAR J.M THIS APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLEN GING THE IMPUGNED ORDER OF THE LD CIT(A) MUMBAI DT. 12/01/2009 FOR THE A.Y. 2004-05. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING TWO GROUND S : GROUND NO. 1: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXVII MUMBAI HAS ERRED IN NOT ADMITTING THE APPEAL FILED LATE BY AROUND 26 0 DAYS STATING THAT THE APPELLANT HAS NOT GIVEN SATISFACTORY EXPLANATION. THE APPELLANT SUBMITS THAT THE DETAILED EXPLANATIONS WERE GIVEN AND DECIDED CASE S OF I.T.A.T. CONDONING THE DELAY IN FILING THE APPEAL ALSO SUBMITTED WHICH HA S NOT BEEN CONSIDERED BY THE LEARNED C.I.T.(A)- XXVII MUMBAI. THE APPELLANT PR AYS THAT THE DELAY IN FILING THE APPEAL MAY PLEASE BE CONDONED AND THE APPEAL AD MITTED FOR DISPOSAL. ITA NO.1942/MUM/2009 2 GROUND NO. 2: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE RELIEF UNDER SEC. 10(10C) AND U/S. 89(1) OF TH E I.T. ACT MAY KINDLY BE ALLOWED. THE APPELLANT PRAYS THAT THE RELIEF CLAIM ED MAY PLEASE GRANTED AND THE ASSESSING OFFICER MAY PLEASE BE DIRECTED TO GRANT T HE REFUND ACCORDINGLY. 3. THE FIRST ISSUE IS IN RESPECT OF DISMISSING THE APPEAL BY THE LD CIT(A) ON THE REASON OF 260 DAYS DELAY FOR FILING THE APPEAL BEFORE HIM. THE ASSESSEE IS AN EX-EMPLOYEE OF RBI WHO OPTED FOR OPTIONAL EARLY RETIREMENT SCHEME 2003 (IN SHORT OERS 2003). THE ASSESSEE FILED THE RET URN OF INCOME AND CLAIMED EXEMPTION U/S. 10(10C) OF THE ACT AS WELL AS BENEFI T OF THE RELIEF U/S. 89(1) IN RESPECT OF THE BALANCE AMOUNT. THE A.O. DENIED THE EXEMPTION OF RS. 5 00 000/- TO THE ASSESSEE U/S. 10(10C) OF THE ACT AS WELL AS ALSO THE RELIEF U/S. 89(1). THE ASSESSEE CHALLENGED THE ASSESSMENT ORDE R BEFORE THE LD CIT(A). IN FILING THE APPEAL BEFORE THE LD CIT(A) THERE WAS A DELAY OF 280 DAYS. THE LD CIT(A) SOUGHT THE EXPLANATION OF THE ASSESSEE AND CAME TO THE CONCLUSION THAT THERE WAS NO REASONABLE CAUSE WHICH PREVENTED THE A SSESSEE FROM FILING THE APPEAL. HE THEREFORE DISMISSED THE APPEAL BY DE NYING TO CONDONE THE DELAY. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES. THE LD. A.R. REITERA TED THE SUBMISSION MADE BEFORE THE LD CIT(A) COPY OF WHICH IS FILED AT PA GE NO. 19 OF THE COMPILATION. IT APPEARS THAT THE ASSESSEE FILED THE ORIGINAL RET URN OF INCOME IN WHICH THE EXEMPTION U/S. 10(10C) WAS CLAIMED TO THE EXTENT OF RS. 5 00 000/- AND IN RESPECT OF THE BALANCE AMOUNT RECEIVED FROM THE RBI UNDER THE OERS 2003 RELIEF U/S. 89(1) WAS ALSO CLAIMED. THERE WAS NO C OMMUNICATION FROM THE A.O. IN RESPECT OF THE RETURN/REVISED RETURN FILED BY TH E ASSESSEE. SUBSEQUENTLY THE A.O INITIATED THE PROCEEDINGS U/S. 147 AND COMPLETE D THE ASSESSMENT DENYING THE EXEMPTION CLAIMED BY THE ASSESSEE U/S. 10(10C) AS WELL AS RELIEF U/S. 89(1). IT IS STATED BY THE ASSESSEE THAT THE ASSESSMENT OR DER WHICH IS THE SUBJECT MATTER OF THE APPEAL WAS RECEIVED ON 11.12.2006 AND SHE FILED THE APPEAL ON 20.11.2007 AND HENCE THERE WAS A DELAY OF 280 DAYS IN FILING THE APPEAL BEFORE ITA NO.1942/MUM/2009 3 THE LD CIT(A). IT IS FURTHER STATED THAT SHE IS A CANCER PATIENT AND SHE WAS NOT DESIRING TO CONTEST THIS ISSUE. WHEN SHE CAME ACRO SS THE DECISION OF THE ITAT MUMBAI IN THE CASES OF HER COLLEAGUES HENCE SHE IM MEDIATELY FILED THE APPEAL BEFORE THE LD CIT(A). THE LD D.R. VEHEMENTLY OPPOS ED FOR CONDONING THE DELAY. 5. AFTER GIVING OUR ANXIOUS CONSIDERATIONS TO THE R EASONS ADVANCED BY THE ASSESSEE WE ARE OF THE OPINION THAT THERE WAS REAS ONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN THE THIRTY DAYS FROM THE DATE OF RECEIPT OF ASSESSMENT ORDER BEFORE THE LD CIT(A). WE THEREFORE USING OUR POW ER CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE LD CIT(A). 6. THE LD COUNSEL SUBMITTED THAT THE ASSESSEE IS A SALARIED EMPLOYEE AND NOW THIS ISSUE IS COVERED ON MERIT IN FAVOUR OF THE ASSESSEE BY DIFFERENT DECISIONS OF THE HONBLE TRIBUNAL AS WELL AS THE D ECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S. K OODATHIL KALLYATHAN AMBUJAKSHAN 309 ITR 113 (BOM). THE LD D.R. FAIRLY CONCEDED THAT ON MERIT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY T HE DECISION CITED BY THE LD COUNSEL AT BAR. 7. THE ASSESSEES CASE IS SQUARELY COVERED BY THE D ECISION OF THE HONBLE JURISDICTIONAL HIGH COURT CITED (SUPRA). WE THERE FORE RESPECTFULLY FOLLOWING THE SAID DECISION DIRECT THE A.O TO ALLOW THE EXEMPTION OF RS. 5 00 000/- TO THE ASSESSEE U/S. 10(10C) OF THE ACT AND IN RESPECT OF BALANCE AMOUNT ALSO ALLOW THE RELIEF U/S. 89 (1). ACCORDINGLY GROUND NO. 2 IS ALLOWED. 8. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND DAY OF FEBRUARY 2010. SD/- SD/- (R.S. SYAL) (R.S.PADVEKAR) ACCOUNTANT MEMBER JUDICI AL MEMBER MUMBAI ON THIS 22ND DAY OF FEBRUARY 2010. ITA NO.1942/MUM/2009 4 :US COPY TO: 1. APPELLANT 2. RESPONDENT 3.THE CIT (A)- XXVII MUMBAI 4.THE CIT- CITY - 26 MUMBAI 5.THE DR B BENCH MUMBAI BY ORDER TRUE COPY ASSTT..REGISTRAR ITAT MUMBAI. ITA NO.1942/MUM/2009 5 US DATE INITIALS 1. DRAFT DICTATED ON 16/2/10 -------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHOR 17/2/10---- ------ -------- SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----