9911796707
TMI Blog1988 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... , he was suffering from certain ailment. He underwent certain tests in March, 1986 at Madras where his father and brother resided. He was admitted at S.R.C. Nature Cure Centre at Madras. He was there for two or three months, but the ailment persisted. He, therefore, remained bed-ridden at his brother's residence at Madras. The assessee has further averred that he was undergoing mental torture during the relevant period. This was because of unhappy married life. There were frequent serious quarrels between him and his wife. Ultimately, after exchange of notices, his wife filed petition for divorce in the city Civil Court, Bombay in Sept., 1986, which was posted for hearing on 30th Sept., 1986. The assessee's wife also took action seeking mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y constitute sufficient cause and whether delay should be condoned. 5. The assessee has filed documentary evidence in support of facts asserted by him. As regards illness and admission in the hospital and investigation regarding illness at Madras, the documents are at pages 4 to 15 of the paper book. They are reports regarding various tests that took place at Madras in March, 1986 and also documents indicating that assessee was admitted at S.R.C. Nature Cure Centre, Madras. Thus, according to these documents, upto May, 1986, the assessee had undergone treatment at Madras. There is no reason to disbelieve this evidence. There is also no reason to disbelieve his assertion in the affidavit that he stayed at his brother's residence at Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Settlement Commission, inasmuch as the petition would not be maintainable unless the appeal was pending. Consequently, when Settlement Commission pointed out his defect, the mistake was realised and steps to file appeal before the Tribunal were taken. The correspondence with Settlement Commission is at pages 16 to 20 of the paper book. 8. Considering all the circumstances, we are convinced that the assessee filed petition before the Settlement Commission on the advice of chartered accountant when assessee was in disturbed state of mind and the chartered accountant committed bona fide mistake in filing the petition before the Settlement Commission without filing appeal before the Tribunal. He failed to realise that petition would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, should be adopted. 10. We may also refer to decision of Bombay High Court in Arun S. Meher vs. M.A. Twigg, CWT (1984) 43 CTR (Bom) 19 : (1985) 153 ITR 131 (Bom). In that case, the assessee, under mistaken legal advice, filed writ petition instead of filing appeal before the Tribunal. While dismissing the With petition, the High Court directed that delay should be condoned by the Tribunal in the interest of justice provided the assessee promptly filed the appeal after dismissal of Writ Petition. In our case also, petition before Settlement Commission had been filed under a mistaken legal advice that it would be maintainable even if no appeal before the Tribunal was filed. Consequently, this is a fit case where delay should be cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuineness of transaction. The assessee was under a mistaken belief that ITO could have summoned any of the creditors if there was any doubt about any items. In fact, it was it duty of assessee to request the duty of assessee to request the ITO to issue summons to secure the presence of the creditor if the assessee was, of his own efforts, unable to secure his presence. The burden is on the assessee and duty of ITO is only to give assistance to assessee to secure presence if assessee made prayer. Considering the circumstances, we are of opinion that this is a fit case where one more opportunity should be granted to assessee to discharge the burden which lay on him. We accordingly restore the matter to the ITO with direction to give reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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