BHARAT R. RUIA ( HUF), MUMBAI V. ASST CIT CIR 16(2), MUMBAI

ITA 1075/MUM/2014

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4285 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 17-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD

Judgement Text

ITA NO.1075/MUM/2014 BHARAT R. RUIA (HUF) ASSESSMENT YEAR-2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.1075/MUM/2014 ( / ASSESSMENT YEAR: 2004-05) BHARAT R. RUIA (HUF) PROP. B.R. INTERNATIONAL PHOENIX MILLS PREMISES 462, SENAPATI BAPAT MARG LOWER PAREL, MUMBAI-400 013 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-16(2) AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 ! ./ ./PAN/GIR NO. AACHB-3596-E ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : CHAUDHARY ARUN KUMAR SINGH, LD. DR / DATE OF HEARING : 01/10/2018 / DATE OF PRONOUNCEMENT : 10/10/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2004-05 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-16, MUMBAI, [CIT(A)], APPEAL NO.CIT(A)XVI/ACIT16(2)/156/06-07 DATED 28/08/2008 QUA CONFIRMATION OF ACTION OF LD. AO IN TREATING INTRA-DAY ITA NO.1075/MUM/2014 BHARAT R. RUIA (HUF) ASSESSMENT YEAR-2004-05 2 TRADING FROM SHARES AS SPECULATIVE TRADING INSTEAD OF BUSINESS LOSS AS CLAIMED BY THE ASSESSEE. 2. NONE HAS APPEARED FOR ASSESSEE AND NO VALID ADJO URNMENT APPLICATION IS ON RECORD. THE PERUSAL OF ORDER SHEE T ENTRIES REVEALS THAT THE ASSESSEE HAS REMAINED NEGLIGENT IN ATTENDING TH E HEARING EVEN DURING THE LAST OCCASION. LEFT WITH NO OPTION, WE P ROCEED TO DISPOSE-OFF THE SAME IN TERMS OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AF TER HEARING LD. DEPARTMENTAL REPRESENTATIVE, SHRI ARUN KUMAR SINGH CHAUDHARY WHO RAISED A PRELIMINARY ISSUE BY POINTING OUT THAT THE APPEAL DESERVES TO BE DISMISSED SINCE THE SAME IS TIME BAR RED BY AS MANY AS 1939 DAYS WITHOUT THERE BEING ANY SUFFICIENT CAUSE. 3. UPON PERUSAL OF RECORD, WE FIND THAT THE REGISTR Y HAS NOTED A DELAY OF 1939 DAYS IN FILING OF INSTANT APPEAL BEFORE THE TRIBUNAL. THE DATE OF COMMUNICATION OF THE ORDER IN FORM NO. 36 HAS BEEN MENTIONED AS 28/08/2008 WHEREAS THE APPEAL HAS BEEN FILED ON 17/ 02/2014, WHICH PRIMA FACIE REVEALS THAT THERE IS A HUGE DELAY OF MORE THAN 5 Y EARS. 4. THE ASSESSEE HAS FILED A CONDONATION PETITION PR IMARILY ON THE STRENGTH THAT THE DEALING CHARTERED ACCOUNTANT WAS BUSY WITH THE SEARCH MATTER OF THE ASSESSEE AND OVER LOOKED TO FILE THE APPEAL BEFORE THE TRIBUNAL AND THEREFORE THE DELAY HAS OCCURRED DUE T O MISTAKE OF THE DEALING CHARTERED ACCOUNTANT OF THE ASSESSEE AND THE SAME WAS A BONA FIDE MISTAKE. 5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE CONDONATION PETITION AND SUPPORTING DOCUMENTS AS FILED IN SUPPO RT OF THE SAME. UPON PERUSAL OF FACTUAL MATRIX, WE FIND IT DIFFICULT TO ACQUIESCE TO THE PLEAS ITA NO.1075/MUM/2014 BHARAT R. RUIA (HUF) ASSESSMENT YEAR-2004-05 3 RAISED BY THE ASSESSEE IN SUPPORT OF CONDONATION OF AN INORDINATE DELAY OF MORE THAN FIVE YEARS. AS PER ASSESSEES VERSION, THE ASSESSEE WAS SUBJECTED TO SEARCH PROCEEDINGS DURING 2008 AND WAS REQUIRED TO FILE THE RETURNS FOR VARIOUS ASSESSMENT YEARS. IN SUCH A SCE NARIO, IT IS DIFFICULT TO ACCEPT THE FACT THAT THE DEALING CHARTERED ACCOUNTANT , DUE TO AN INADVERTENT ERROR, FAILED TO AGITATE THE SAME BEFOR E THE TRIBUNAL PARTICULARLY IN THE LIGHT OF THE FACT THAT THE DEPA RTMENTAL APPEAL FOR THE IMPUGNED AY WAS FILED BEFORE THE TRIBUNAL DURING NO VEMBER, 2008 AND THE SAME WAS DISPOSED-OFF DURING MARCH, 2010. FURTH ER, SIMILAR ISSUE AROSE IN ASSESSEES OWN CASE FOR IMMEDIATELY PRECED ING AY 2003-04 AND THE ASSESSEES APPEAL WAS DISPOSED-OFF BY THE T RIBUNAL DURING APRIL, 2009. IN THESE CIRCUMSTANCES, IT IS DIFFICULT TO AC CEPT THE FACT THAT THE APPEAL COULD NOT BE FILED DUE TO OVERSIGHT OR DUE T O AN INADVERTENT ERROR OF THE DEALING CHARTERED ACCOUNTANT . AS PER LAWS OF LIMITATION, THE ASSESSEE IS EXPECTED TO EXPLAIN EACH DAY OF DELAY A ND AS PER SETTLED LEGAL PROPOSITION, THE EXPLANATION SHOULD ESTABLISH THE BONA FIDE OF THE ASSESSEE BEFORE SEEKING CONDONATION OF DELAY. THE S URROUNDING CIRCUMSTANCES AND THE CONDUCT OF THE ASSESSEE DO NO T CONVINCE US TO CONDONE THE INORDINATE DELAY IN TERMS OF SECTION 25 3(5) AND THEREFORE, WE DISMISS THE APPEAL ON PRELIMINARY ISSUE OF CONDO NATION OF DELAY. 6. SINCE THE APPEAL HAS BEEN DISMISSED ON THE GROUN D OF LIMITATION, DELVING INTO THE SAME ON MERITS BECOME MERELY ACADE MIC IN NATURE AND THEREFORE, NOT DEALT WITH. 7. THE APPEAL STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2018. ITA NO.1075/MUM/2014 BHARAT R. RUIA (HUF) ASSESSMENT YEAR-2004-05 4 SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :10.10.2018 SR.PS:-THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - , - , / DR, ITAT, MUMBAI 6. , ./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI