DILIP JAYANTILAL SHAH,MUMBAI V. DCIT, CENTRAL CIRCLE-4(3), MUMBAI

ITA 6131/MUM/2024

AI Insights

The case involves an appeal by Dilip Jayantilal Shah against the order of the Commissioner of Income-tax (Appeals), Mumbai, for the assessment year 2012-13. The primary contention was the non-condonation of delay in the payment of Rs. 5,000 fees, which led to the continuation of an addition of Rs. 13,18,730 to the income under sections 143(3) read with section 254 of the Income Tax Act, 1961. The ITAT had previously set aside the order passed by CIT(A) and restored all issues to the file of the Assessing Officer, contingent upon the payment of the said fees by 30.11.2017. The assessee, however, made the payment on 16.05.2018, leading to the dismissal of his appeal by CIT(A) for non-compliance with the ITAT's directions. The ITAT, in this order, decided to condone the delay in payment and directed CIT(A) to decide the appeal on its merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 471348 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Other Referred Cases: Union of India and Others vs Kamlakshi Finance Corporation
• Laws Referred To: Income Tax Act' 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAVIN SALUKHE
• Keywords: Set aside; Opportunity of being heard
• Section: 143(3)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H (SMC)” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) ITA No. 6131/MUM/2024 Assessment Year: 2012-13 Dilip Jayantilal Shah, A/302 White Arch, Mathuradas Road, Kandivali (West), Mumbai-400067. Vs. Dy. CIT, Central Circle-4(3), Kautilya Bhavan, BKC, Mumbai-400051. PAN NO. ASIPS 1677 F Appellant Respondent Assessee by : None Revenue by : Mr. Pravin Salukhe, Sr. DR Date of Hearing : 14/01/2025 Date of pronouncement : 21/01/2025 ORDER PER OM PRAKASH KANT, AM This appeal has been preferred by the assessee against order dated 26.03.2024 passed by the Ld. Commissioner of Income-tax (Appeals), Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following grounds: 1. On the facts and circumstances of the case and in law on the subject the Learned assessing officer erred in not condoning the delay in payment of Rs. 5,000/ fees and continuing addition of Rs. 13,18,730/ income u/s 143(3) r.w.s. 254 of the Income Tax Act' 1961. On the facts and circumstances of the case and in law on the subject the Learned CIT(A order of Assessing Officer. 2. On the facts and circumstances of the case the delay being beyond the control of the assessee. The delay in payment be condoned and the addition be deleted. 2. We have heard rival submissions of the p the relevant materials on record. We find that the Ld. CIT(A) has dismissed the appeal of the assessee 5,000/- which was levied by the Tribunal, without deciding the issue in dispute on merit, “DECISION 6. I have considered the facts of the case. 7. In this case, the Hon'ble ITAT vide I.T.A. No. 5412/Mum/2017 dated 02.11.2017 has held as under: \"5. Having regard to the rival submissions, I am of the view that, in the interest of should be given one more opportunity to present his case properly. At the same time I am of the view that the assessee should bear a cost of Rs. 5000/ failure to appear before the tax authorities. Accordingly, I direct the as 5,000/ \"other fees\" on or before 30.11.2017. Subject to the payment of above said fees, I set aside the order passed by CIT(A) and restore all the issues to the file of the AO with the d after affording adequate opportunity of being heard to the assessee. I also direct the assessee to cooperate with the AO for expeditious disposal of the matter\" ITA No. 6131/MUM/2024 condoning the delay in payment of Rs. 5,000/ fees and continuing addition of Rs. 13,18,730/ income u/s 143(3) r.w.s. 254 of the Income Tax Act' 1961. On the facts and circumstances of the case and in law on the subject the Learned CIT(A) erred in continuing the order of Assessing Officer. On the facts and circumstances of the case the delay being beyond the control of the assessee. The delay in payment be condoned and the addition be deleted. We have heard rival submissions of the parties and perused the relevant materials on record. We find that the Ld. CIT(A) has dismissed the appeal of the assessee for late payment of cost of Rs. which was levied by the Tribunal, without deciding the issue in dispute on merit, observing as under: DECISION : 6. I have considered the facts of the case. 7. In this case, the Hon'ble ITAT vide I.T.A. No. 5412/Mum/2017 dated 02.11.2017 has held as under: \"5. Having regard to the rival submissions, I am of the view that, in the interest of justice, the assessee should be given one more opportunity to present his case properly. At the same time I am of the view that the assessee should bear a cost of Rs. 5000/ failure to appear before the tax authorities. Accordingly, I direct the assessee to pay a sum of Rs. 5,000/- to the credit of Income Tax Department as \"other fees\" on or before 30.11.2017. Subject to the payment of above said fees, I set aside the order passed by CIT(A) and restore all the issues to the file of the AO with the direction to examine them afresh after affording adequate opportunity of being heard to the assessee. I also direct the assessee to cooperate with the AO for expeditious disposal of the matter\" Dilip Jayantilal Shah 2 ITA No. 6131/MUM/2024 condoning the delay in payment of Rs. 5,000/- as other fees and continuing addition of Rs. 13,18,730/- as total income u/s 143(3) r.w.s. 254 of the Income Tax Act' 1961. On the facts and circumstances of the case and in law on ) erred in continuing the On the facts and circumstances of the case the delay being beyond the control of the assessee. The delay in payment be condoned and the addition be deleted. arties and perused the relevant materials on record. We find that the Ld. CIT(A) has for late payment of cost of Rs. which was levied by the Tribunal, without deciding the 7. In this case, the Hon'ble ITAT vide I.T.A. No. 5412/Mum/2017 dated 02.11.2017 has held as under:- \"5. Having regard to the rival submissions, I am of the justice, the assessee should be given one more opportunity to present his case properly. At the same time I am of the view that the assessee should bear a cost of Rs. 5000/- for his failure to appear before the tax authorities. sessee to pay a sum of Rs. to the credit of Income Tax Department as \"other fees\" on or before 30.11.2017. Subject to the payment of above said fees, I set aside the order passed by CIT(A) and restore all the issues to the file irection to examine them afresh after affording adequate opportunity of being heard to the assessee. I also direct the assessee to cooperate with the AO for expeditious disposal of the matter\" 8. Thus, the directions of the Hon'ble ITAT are very clear and specific. The payment of Rs. 5,000/ made before 30.11.2017. The appellant has actually made the payment on 16.05.2018. This office has no option but to abide by the directions of a higher Judicial Forum. If the appellant has any difficu Hon'ble ITAT or needs any relaxation, he should approach the same forum. 9. On the issue of judicial discipline, the Hon'ble Supreme Court in the case of Union of India and Others vs Kamlakshi Finance Corporation AIR 199 1991 ECR 486 SC, has held that utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline so as to give effect to the binding orders of the higher appel authorities. 10. Under these circumstances, I am of the view that the AO was right in stating that 'as the condition put forward by the Hon'ble ITAT has not been adhered to, the total income is taken Rs. 13,18,730 assessed as per original assessment order. Accordingly, the Grounds raised by the appellant stand DISMISSED. 2.1 We find that the Ld. CIT(A) has rejected the appeal of the assessee for the reason that assessee failed to deposit the cost of Rs.5,000/- levied, which was directed to be deposite 30.11.2017, whereas the assessee actually deposited amount of cost on 16.05.2018. We are of the opinion that the assessee has complied with the direction to deposit cost of Rs.5,000/- though with slight delay of approximately six months. the facts and circumstances of the case, we feel it appropriate to condone the delay in deposit has not decided the appeal on merit him with the direction to decide the appeal on me ITA No. 6131/MUM/2024 Thus, the directions of the Hon'ble ITAT are very clear and specific. The payment of Rs. 5,000/- ought to have been made before 30.11.2017. The appellant has actually made the payment on 16.05.2018. This office has no option but to abide by the directions of a higher Judicial Forum. If the appellant has any difficulty in fulfilling directions of the Hon'ble ITAT or needs any relaxation, he should approach the same forum. 9. On the issue of judicial discipline, the Hon'ble Supreme Court in the case of Union of India and Others vs Kamlakshi Finance Corporation AIR 1992 SC 711, 1994 (46) ECC 129, 1991 ECR 486 SC, has held that utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline so as to give effect to the binding orders of the higher appel 10. Under these circumstances, I am of the view that the AO was right in stating that 'as the condition put forward by the Hon'ble ITAT has not been adhered to, the total income is taken Rs. 13,18,730 assessed as per original assessment Accordingly, the Grounds raised by the appellant stand DISMISSED.” We find that the Ld. CIT(A) has rejected the appeal of the assessee for the reason that assessee failed to deposit the cost of levied, which was directed to be deposite whereas the assessee actually deposited on 16.05.2018. We are of the opinion that the complied with the direction to deposit cost of though with slight delay of approximately six months. the facts and circumstances of the case, we feel it appropriate to condone the delay in deposit of the cost levied. Since the Ld. CIT(A has not decided the appeal on merit, we restore the matter back to him with the direction to decide the appeal on merit after providing Dilip Jayantilal Shah 3 ITA No. 6131/MUM/2024 Thus, the directions of the Hon'ble ITAT are very clear and ought to have been made before 30.11.2017. The appellant has actually made the payment on 16.05.2018. This office has no option but to abide by the directions of a higher Judicial Forum. If the lty in fulfilling directions of the Hon'ble ITAT or needs any relaxation, he should approach 9. On the issue of judicial discipline, the Hon'ble Supreme Court in the case of Union of India and Others vs Kamlakshi (46) ECC 129, 1991 ECR 486 SC, has held that utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline so as to give effect to the binding orders of the higher appellate 10. Under these circumstances, I am of the view that the AO was right in stating that 'as the condition put forward by the Hon'ble ITAT has not been adhered to, the total income is taken Rs. 13,18,730 assessed as per original assessment Accordingly, the Grounds raised by the appellant We find that the Ld. CIT(A) has rejected the appeal of the assessee for the reason that assessee failed to deposit the cost of levied, which was directed to be deposited before whereas the assessee actually deposited the said on 16.05.2018. We are of the opinion that the complied with the direction to deposit cost of though with slight delay of approximately six months. In the facts and circumstances of the case, we feel it appropriate to cost levied. Since the Ld. CIT(A) we restore the matter back to rit after providing adequate opportunity of appeal of the assessee are allowed for statistical purposes. 3. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Sd/- (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 21/01/2025 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// ITA No. 6131/MUM/2024 adequate opportunity of being heard to the assessee. The grounds of appeal of the assessee are allowed for statistical purposes. In the result, the appeal of the assessee is allowed for Order pronounced in the open Court on 21/01/2025. - RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Dilip Jayantilal Shah 4 ITA No. 6131/MUM/2024 heard to the assessee. The grounds of appeal of the assessee are allowed for statistical purposes. In the result, the appeal of the assessee is allowed for /01/2025. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai "