M/S Poonam Industries vs Cit on 22 October, 2008

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                          CHANDIGARH.


                                                   ITA No.625 of 2007
                                           Date of decision: 22.10.2008

M/s Poonam Industries


                                                          -----Appellant
                                 Vs.
CIT, Aaykar Bhawan, Jalandhar
                                                        -----Respondent

CORAM:- HON’BLE MR JUSTICE ADARSH KUMAR GOEL
HON’BLE MR JUSTICE L.N.MITTAL

Present: Mr. SK Mukhi, Advocate for the appellant.

Mr. Vivek Sethi, Standing Counsel for the revenue.

Adarsh Kumar Goel, J

1. This appeal has been preferred by the assessee under

section 260A of the Income Tax Act, 1961 (in short, ‘the Act’)

against the order of the Income Tax Appellate Tribunal Amritsar

dated 6.7.2007 in ITA No.273(ASR)/2005, for the assessment

year 2000-01.

2. Substantial question of law proposed in the appeal,

which has been pressed is in para 7 (I), which is as under:-
ITA no.625 of 2007 2

“Whether, on the facts and circumstances of the
case, the ITAT was justified in confirming the
action of CIT(A) in not condoning the delay by
treating the ground of bad health of one of the
partner as reason for delay of 5 months in filing the
appeal as not genuine by completely ignoring the
facts and circumstances, explanations, evidences
filed and on record and also the principles of natural
justice and the case law as relied upon by the
appellant.”

3. Aggrieved by the order of assessment, the assessee had

preferred an appeal before the CIT(A). The same was barred by

five months. The CIT(A) dismissed the same with the following

observations:-

“4.I have considered the matter and perused the
documentary evidence submitted by the appellant in
support of the above assertion. It is seen that most of
it relates to the period beginning the last week of
August 2004 and early part of September 2004
which is more than a year beyond the date on which
the appeal was belatedly filed on 22nd August, 2003.
Earlier to that he had a lipid profile done on
14.3.2003, at Tagore heart Care & Research Centre
Pvt. Limited, Jalandhar, which showed that total
lipid is 718 mg/dl (reference upto 190 mg/dl and
ITA no.625 of 2007 3

S.Triglycerides 108 mg/dl (ref.25-160 mg/dl). As
regards the evidence that relates to bye pass surgery
done at the Escorts Hospital Delhi sometime in
August, September 2004 the same is clearly not
relevant because the appeal had been filed on
22.8.2003. As regards the other documents
submitted the results of the pathological test that
have been reproduced hereinabove clearly show that
there was nothing serious about the health condition
of Shri R.B.K.Choudhary, partner, as is sought to be
projected by the learned counsel inasmuch as every
item of pathological finding is well within the
reference range. In fact, the report is way better than
that of even a common man, who would show some
aberrations if taken to a pathological laboratory
without any complaint.”

4. The said view has been affirmed by the Tribunal.

5. We have heard learned counsel for the parties and

perused the record.

6. Learned counsel for the assessee points out that there

is an error of fact in the observations of the ITAT. The period of

illness was not only August 2004, as assumed in the impugned

order. The period of illness also covered earlier period.
ITA no.625 of 2007 4

7. Learned counsel for the revenue submits that even if

there was illness of one of the partners, the other partner could

have pursued the appeal and the other partner appeared in

another income tax matter which has been noticed in the order of

the Tribunal.

8. We are of the view that though, a party is required to

explain each day’s delay and to show that it was prevented by

sufficient cause in filing the appeal in time, power to condone

delay has to be exercised in a pragmatic manner to advance

substantial justice. The plea of illness is admittedly not fake. Even

if the other partner had appeared in another income tax case, the

same could not be conclusive against genuineness of the reason

given by the assessee. Every partner may not be aware of all the

affairs of the firm. No harm would be done to either party if the

matter is heard on merits.

9. For the above reasons, we decide the question

proposed in favour of the assessee and accordingly, set aside the

impugned order. We remand the matter back to the CIT(Appeals)

for a fresh decision on merits in accordance with law. The

appellant will appear before the CIT(Appeals), Jalandhar for

further proceedings on December 19, 2008.
ITA no.625 of 2007 5

10. The appeal is disposed of.

                                       (Adarsh Kumar Goel)
                                               Judge


October 22, 2008                           (L.N.Mittal)
'gs'                                            Judge