Smt. Usha Kshetrapal, Agra V. A.C.I.T.-1(3), Agra

CO 71/AGR/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7082 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 04-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Audit objection; Period of limitation; Question of law; Reasonable cause; Tax effect; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 218/AGRA/2010 ASSTT. YEAR : 2002-03 A.C.I.T. -1, AGRA. VS. SHRI KUNWAR AJIT KHETRAP AL, 22, SURYA NAGAR, AGRA. (PAN : ABRPK 3455B) C.O. NO. 70/AGRA/2010 (IN ITA NO. 218/AGRA/2010) ASSTT. YEAR : 2002-03 SHRI KUNWAR AJIT KHETRAPAL, VS. A.C.I.T. -1, AGRA . 22, SURYA NAGAR, AGRA. ITA NO. 223/AGRA/2010 ASSTT. YEAR : 2002-03 I.T.O., 1 (3), AGRA. VS. SMT. USHA KSHETRAPAL, 22, SURYA NAGAR, AGRA. (PAN : ABXPK 6597 N) C.O. NO. 71/AGRA/2010 (IN ITA NO. 223/AGRA/2010) ASSTT. YEAR : 2002-03 SMT. USHA KSHETRAPAL, VS. I.T.O., 1 (3), AGRA. 22, SURYA NAGAR, AGRA. ITA NO. 227/AGRA/2010 ASSTT. YEAR : 2002-03 I.T.O., 1 (3), AGRA. VS. LATE SMT. VIDHYAWATI KH ETRAPAL, THROUGH L/H KUNWAR AJIT KHETRAPAL 22, SURYA NAGAR, AGRA. (PAN : AJEPJ 4720 G) ITA NO.218, 223 & 227/AGRA/2010 C.O. NO. 70, 71 & 73/AGRA/2010 2 C.O. NO. 73/AGRA/2010 (IN ITA NO. 227/AGRA/2010) ASSTT. YEAR : 2002-03 LATE SMT. VIDHYAWATI KHETRAPAL, VS. I.T.O., 1 (3), AGRA. THROUGH L/H KUNWAR AJIT KHETRAPAL 22, SURYA NAGAR, AGRA. (APPELLANTS) (RESPONDENTS) REVENUE BY : 17.05.2012 ASSESSEE BY : 18.05.2012 DATE OF HEARING : SHRI R.K. JAIN, JR. D.R. DATE OF PRONOUNCEMENT OF ORDER : NONE ORDER PER BENCH: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE DEPARTME NTAL APPEALS AND THE CROSS- OBJECTIONS OF THE ASSESSEE. 2. ITA NO. 218/AGRA/2010 BY THE REVENUE AND C.O. NO . 70/AGRA/2010 BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT( A)-I, AGRA DATED 31.03.2010 FOR THE ASSESSMENT YEAR 2002-03. IN THE DEPARTMENTAL AP PEAL, THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.5,20,628/- PLUS RS.7 ,809/- AND THE ASSESSEE IN THE CROSS OBJECTION CHALLENGED THE REOPENING OF ASSESSM ENT BY EXPARTE ORDER U/S. 147/144 OF THE IT ACT. THE AO MADE ADDITION OF RS.5 ,20,628/- CONSIDERING THE SHARE TRANSACTIONS AS BOGUS LONG-TERM CAPITAL GAINS AND ALSO DISALLOWED COMMISSION OF RS.7809/-. THE LD. CIT(A) DELETED THE ADDITION ON MERITS AND ITA NO.218, 223 & 227/AGRA/2010 C.O. NO. 70, 71 & 73/AGRA/2010 3 DIRECTED THE AO TO TREAT THE SAME AS LONG TERM CAPI TAL GAINS. ADDITION ON ACCOUNT OF COMMISSION WAS ALSO DELETED. HOWEVER, THE LD. CI T(A) DID NOT DECIDE THE ISSUE OF REOPENING OF THE ASSESSMENT IN THE MATTER. THE R EVENUE IS IN APPEAL CHALLENGING THE DELETION OF ADDITION ON MERITS AND THE ASSESSEE FILED CROSS OBJECTION CHALLENGING THE REOPENING OF ASSESSMENT. THE CROSS OBJECTION IS TIME BARRED BY 24 DAYS. IN THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE CROSS OBJECTION IT IS STATED THAT CROSS OBJECTION IS FILED WITH DELAY DUE TO DEATH OF A CLOSE FAMILY RELATIVE AROUND THAT POINT OF TIME. THEREFORE, THE PAPERS COULD NOT BE GIVEN TO THE COUNSEL FOR FILING THE CROSS OBJECTION. 3. ITA NO. 223/AGRA/2010 AND C.O. NO. 71/AGRA/2010 ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, AGRA DATED 26.03.2010 FOR TH E ASSESSMENT YEAR 2002-03. THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.5 ,94,000/- MADE ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAINS. THE AO MADE THE ABOV E ADDITION TREATING UNEXPLAINED RECEIPTS ON ACCOUNT OF SALE OF SHARES. THE ADDITION WAS DELETED BY THE LD. CIT(A) ON MERITS. AO WAS DIRECTED TO TREAT THE SAME AS LONG-TERM CAPITAL GAINS AS PER RETURN. HOWEVER, THE ISSUE OF 147 WAS DECIDE D AGAINST THE ASSESSEE, ON WHICH THE ASSESSEE HAS FILED THE CROSS OBJECTION. C ROSS OBJECTION IS TIME BARRED BY 24 DAYS AND SIMILAR REASON IS GIVEN FOR THE DELAY D UE TO DEATH OF CLOSE FAMILY RELATIVE. ITA NO.218, 223 & 227/AGRA/2010 C.O. NO. 70, 71 & 73/AGRA/2010 4 4. ITA NO. 227/AGRA/2010 DEPTT. APPEAL AND C.O. NO. 73/AGRA/2010 BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT( A) AGRA DATED 23.03.2010 FOR THE ASSESSMENT YEAR 2002-03 CHALLENGING THE DELETION OF ADDITION OF RS.5,94,000/- ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAINS. THE SAID ADDITION WAS DELETED BY THE LD. CIT(A) ON MERITS. THE ISSUE OF RE-ASSESSMENT U/S. 1 47/148 WAS, HOWEVER, DECIDED AGAINST THE ASSESSEE. THE REVENUE AND ASSESSEE ARE IN APPEAL AND CROSS-OBJECTION ABOVE. THE CROSS-OBJECTION IS TIME BARRED BY 24 DAY S AND SIMILAR REASON IS EXPLAINED THAT THE DELAY WAS DUE TO CLOSE FAMILY RE LATIVE AROUND THAT POINT OF TIME ONLY. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L ON RECORD. NO AUTHORIZED REPRESENTATIVE APPEARED AT THE TIME OF H EARING ON BEHALF OF THE ASSESSEE. THE REQUEST FOR ADJOURNMENT WAS MADE BY S HRI MRADUL PATHAK, C.A., HOWEVER, NO POWER OF ATTORNEY IS FILED ON RECORD AN D NO REASONABLE CAUSE IS GIVEN IN THE APPLICATION FOR ADJOURNMENT. THEREFORE, THE REQUEST FOR ADJOURNMENT WAS REJECTED. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATERIAL ON RECORD. THE LD. DR ADMITTED THAT THESE WERE THE ONLY ADDITIONS MADE BY THE AO WHICH HAVE BEEN REFERRED TO IN THE GROUNDS O F APPEAL AND THE SAME ADDITIONS HAVE BEEN DELETED BY THE LD. CIT(A) ON ME RITS AND ON THE SAME GROUNDS OF APPEAL OF THE REVENUE, THE TAX EFFECT IS BELOW R S.2,00,000/-. ACCORDING TO INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008, THE DEP ARTMENTAL APPEAL COULD BE FILED ITA NO.218, 223 & 227/AGRA/2010 C.O. NO. 70, 71 & 73/AGRA/2010 5 BEFORE THE TRIBUNAL WHERE THE TAX EFFECT EXCEEDS MO NETARY LIMIT OF RS.2,00,000/-. ADMITTEDLY, THE TAX EFFECT IN ALL THE DEPARTMENTAL APPEALS IS BELOW RS.2,00,000/-. THEREFORE, THE DEPARTMENTAL APPEALS ARE LIABLE TO B E DISMISSED BEING FILED IN VIOLATION OF CBDT INSTRUCTION. NOTHING IS POINTED O UT DURING THE COURSE OF ARGUMENTS THAT ANY CONSTITUTIONAL VALIDITY OF THE P ROVISION OF THE ACT HAS BEEN CHALLENGED IN THE PRESENT APPEALS AND THERE WAS NO AUDIT OBJECTION RAISED BY THE REVENUE. NO SUBSTANTIAL QUESTION OF LAW ARISE FROM THE GROUNDS OF DEPARTMENTAL APPEALS AND NO CIRCULAR, NOTIFICATION OR INSTRUCTIO N OF THE DEPARTMENT HAVE BEEN HELD TO BE ILLEGAL OR ULTRA VIRES. SINCE THE MONETA RY LIMIT DOES NOT EXCEED RS.2,00,000/- FOR FILING THE DEPARTMENTAL APPEALS, THEREFORE, THE DEPARTMENTAL APPEALS ARE NOT MAINTAINABLE AND ARE DISMISSED. 6. ALL THE CROSS OBJECTIONS ARE TIME BARRED BY 24 D AYS. IT IS STATED THAT THE DELAY WAS DUE TO DEATH OF A CLOSE FAMILY RELATIVE. NO NAM E OF THE RELATIVE HAS BEEN DISCLOSED IN THE APPLICATION OR THE AFFIDAVIT, WHO HAD EXPIRED AND EVEN NO DATE OF DEATH HAS BEEN INTIMATED. NOTHING IS EXPLAINED AS T O HOW THE ASSESSEE WAS EFFECTED BY THE DEATH OF UNKNOWN PERSON. THUS, THE ASSESSEE HAS FAILED TO PROVE IF THERE WAS ANY SUFFICIENT CAUSE FOR DELAY IN FILING THE CROSS OBJECTIONS BEYOND THE PERIOD OF LIMITATION. NO EVIDENCE OR MATERIAL FOR DEATH OF AN Y RELATIVE HAS BEEN PRODUCED ON RECORD. SINCE THERE IS NO VALID EXPLANATION OR REAS ON GIVEN IN THE APPLICATION FOR CONDONATION OF DELAY AND NO EVIDENCE PRODUCED TO SU PPORT THE AVERMENTS MADE IN ITA NO.218, 223 & 227/AGRA/2010 C.O. NO. 70, 71 & 73/AGRA/2010 6 THE APPLICATION OR AFFIDAVIT, THEREFORE, WE HOLD TH AT THE ASSESSEE FAILED TO EXPLAIN THAT THE DELAY IN FILING THE CROSS OBJECTION WAS DU E TO SUFFICIENT CAUSE. MOREOVER, THE ADDITIONS MADE BY THE AO ON MERITS HAVE ALREADY BEEN DELETED BY THE LD. CIT(A) AND THE DEPARTMENTAL APPEALS HAVE BEEN DISMI SSED BEING NOT MAINTAINABLE. THEREFORE, THE ISSUE RAISED IN THE CROSS OBJECTIONS CHALLENGING THE RE-ASSESSMENT PROCEEDINGS HAVE BEEN LEFT ACADEMIC INTEREST ONLY. CONSIDERING THE ABOVE OBSERVATIONS, WE HOLD THAT THE ASSESSEE FAILED TO E XPLAIN SUFFICIENT CAUSE FOR FILING THE CROSS OBJECTIONS BEYOND THE PERIOD OF LIMITATIO N. ALL THE CROSS-OBJECTIONS ARE, ACCORDINGLY, DISMISSED BEING TIME BARRED. 7. IN THE RESULT, THE DEPARTMENTAL APPEALS ARE DISM ISSED AND THE CROSS-OBJECTIONS OF THE ASSESSEE ARE DISMISSED BEING TIME BARRED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY