Shri Bhupendrakumar Jivanlal Shah, Kadi V. The Income Tax Officer, Ward-5, Kadi

ITA 1251/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7282 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JPSD
• Assessee Lawyers: M K PATEL A R SHRI MUDIT NAGPA
• Keywords: Principle of natural justice; Validity of assessment; Condonation of delay
• Section: 147; 144

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 1251/AHD/2017 ( ASSESSMENT YEAR : 2011-12) BHUPENDRAKUMAR JIVANLAL SHAH HOLI CHAKLA, KADI - 382715 / VS. THE INCOME-TAX OFFICER MEHSANA WARD-5, KADI ROOM NO. 105 TO 108, 1 ST FLOOR, ISHWAR HERITAGE, OPP. APMC MARKET, NR. TOWN HALL, KADI - 382715 ./ ./ PAN/GIR NO. : BYJPS0253D ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. K. PATEL, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR.D.R. DATE OF HEARING 26/07/2019 !'# / DATE OF PRONOUNCEMENT 29/07/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), GANDHINAGAR (CIT(A) IN SHORT), DATED 10.03.2016 A RISING IN THE ASSESSMENT ORDER DATED 17.09.2014 PASSED BY THE ASS ESSING OFFICER (AO) UNDER S. 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2011-12. ITA NO. 1251/AHD/17 [BHUPENDRAKUMAR J. SHAH VS. ITO] A.Y. 2011-12 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER: 1. THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE GROUND OF APPEAL CHALLENGING THE VALIDITY OF ASSESSMENT ORDER PASSED U/S.144 R.W.S. 147 OF THE ACT BY PASSING AN EX-PARTE ORDER WITHOUT GRANTI NG PROPER AND ADEQUATE OPPORTUNITY OF HEARING CONSIDERING THE FAC T THAT THE APPELLANT IS RESIDING OUTSIDE AHMEDABAD. THAT APART, THE ID. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE APPELLANT WAS AN AGED MAN OF 74 YEARS AND WAS NOT REMAINING IN GOOD HEALTH AND HENCE COULD NO T COMPILE THE DETAILS REQUIRED TO BE FILED IN THE GIVEN TIME EITH ER BEFORE THE AO OR THE CIT(A). THE APPELLANT HUMBLY STATES THAT THE APPEAL BE SET-ASIDE TO THE FILE OF THE ID. CIT(A) FOR DECISION AFRESH IN THE I NTEREST OF NATURAL JUSTICE AND EQUITY. 2. THE APPELLANT STATES THAT IN VIEW OF ABOVE FACT S AS CONVEYED BY THE A.R. TO THE LD. CIT(A) COUPLED WITH THE FACT THAT THE A. R. HIMSELF WAS OUT OF TOWN ON THE LAST GIVEN DATE OF HEARING HE COULD NOT EITHER APPEAR BEFORE THE CIT(A) OR FILE AN ADJOURNMENT APPLICATION, THE LD. CIT(A) OUGHT TO HAVE GRANTED ONE MORE OPPORTUNITY IN THE INTEREST O F JUSTICE AND EQUITY. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE VARIOUS ADDITIONS MADE BY THE AO AGGREGATING TO RS.89,26,73 2/- BEING INCOME FROM LONG TERM CAPITAL GAIN AMOUNTING TO RS.87,83,9 60/- AND INCOME FROM OTHER SOURCES AMOUNTING TO RS. 1,42,772/- WITH OUT GRANTING ADEQUATE OPPORTUNITY OF HEARING TO THE APPELLANT TO DEFEND HIS CASE. THE APPELLANT THUS HUMBLY STATES THAT THE APPEAL BE SET -ASIDE TO THE FILE OF THE LD. CIT(A) FOR DECISION AFRESH IN THE INTEREST OF NATURAL JUSTICE AND EQUITY. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE WAS CONFRONTED WITH THE FACTS THAT THE APP EAL FILED BY THE ASSESSEE IS TIME BARRED BY 373 DAYS. THE EXPLANATION FOR DE LAY WAS SOUGHT FROM THE ASSESSEE IN TERMS OF SECTION 253(5) OF THE ACT. TH E LEARNED AR PLEADED FOR CONDONATION OF DELAY BUT WITHOUT SHOWING ANY JUSTIF IABLE CAUSE WHATSOEVER. 4. THE LEARNED DR, ON THE OTHER HAND, POINTED OUT T HAT APART FROM THE BELATED FILING OF APPEAL, THE ASSESSEE HAS ALSO SHO WN TOTAL NEGLIGENCE AND NON-COOPERATION BEFORE THE AO. ALL THE NOTICE BEFO RE THE AO REMAINED UNATTENDED AND THE ASSESSMENT ORDER WAS PASSED EX PARTE . THE LEARNED DR FURTHER POINTED OUT THAT EVEN BEFORE THE CIT(A), TH E NON-COOPERATION FROM THE REPRESENTATIVE OF THE ASSESSEE CONTINUED. REPE ATED NON-ATTENDANCE IS GLARING FROM THE RECORD. THE LEARNED DR ACCORDINGL Y CONTENDED THAT THE DELAY CANNOT BE CONDONED SIMPLY ON THE GROUNDS OF S YMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTIES SEEKING RELIEF. THE LEARNED DR THUS SUBMITTED THAT NO INTERFERENCE IN THE ORDER OF THE CIT(A) IS CALLED FOR. ITA NO. 1251/AHD/17 [BHUPENDRAKUMAR J. SHAH VS. ITO] A.Y. 2011-12 - 3 - 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO N. WE HAVE ALSO PERUSED THE AFFIDAVIT DATED 19 TH MAY, 2017 PLACED ON RECORD BUT FIND NO SUFFICIENT CAUSE FOR ACCEDING TO THE REQUEST FOR CO NDONATION OF DELAY. NEEDLESS TO SAY, THE LITIGANT ALSO EXPECTED TO PERF ORM HIS DUTY DILIGENTLY AND WITH COMMITMENT. THE CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT. THE BURDEN IS ON THE ASSESSEE TO JUSTIFY SUFFICIENT GROUND FOR CONDONATION OF DELAY. WE HAVE NOT BEEN APPRISED OF EXISTENCE OF ANY VALID GROUND TO ENABLE US TO CONDONE SUCH INORDINATE DELAY. COUPLED WITH THIS, WE NOTE THAT T HE ASSESSEE IS AN HABITUAL DEFAULTER AND HAS NO CARE TO ATTEND TO THE STATUTOR Y PROCEEDINGS EITHER BEFORE THE AO OR BEFORE THE CIT(A) AS CALLED FOR. IN VIEW OF THE ALARMING SHOW OF NEGLIGENCE AT ALL STAGES, WE ARE NOT INCLIN ED TO VIEW THE CASE OF THE ASSESSEE FAVOURABLY. THE APPEAL OF THE ASSESSEE IS THUS DISMISSED AT THRESHOLD OWING TO BAR OF LIMITATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/07/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 29/07/20 19