HASSAN ALI KHAN, MUMBAI V. DCIT CEN CIR 2, MUMBAI

ITA 1299/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3513 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KADAMBARI DAVE
• Keywords: Wrong claim
• Section: 69

Judgement Text

HASSAN ALI KHAN V.ACIT ITA NO. 1299/MUM/2012 (A.Y. 2008 - 09) 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM ./ I.T.A. NO. 1299 /MUM/ 2012 ( / ASSESSMENT YEAR: 2008 - 09 ) HASSAN ALI KHAN VALENTINE SOCIETY, 1 TULIP, NORTH MAIN ROAD, KOREGAON PARK, PUNE - 411 001 / VS. ASSTT . CIT, CENTRAL CIRCLE - 2, MUMBAI ./ ./ PAN/GIR NO. AOMPK 8155 J ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : NONE /RESPONDENT BY : SHRI GIRISH DAVE & MS. KADAMBARI DAVE / DATE OF HEARING : 1 7 .0 2 .201 6 / DATE OF PRONOUNCEMENT : 2 9 .02.2016 / O R D E R PER SANJAY ARORA, A. M.: VIDE THIS APPEAL THE ASSESSEE AGITATES THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEAL S ) - 36 , MUMBAI (CIT(A) FOR SHORT) DATED 30 . 08 .20 11 , DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 200 8 - 0 9 DATED 1 6 . 12 .20 1 0. HASSAN ALI KHAN V.ACIT ITA NO. 1299/MUM/2012 (A.Y. 2008 - 09) 2 2. NONE APPEARED WHEN THE ASSESSEES APPEAL WAS CALLED OUT FOR HEARING. IT WAS, HOWEVER, OBSERVED BY THE BENCH THAT THE ASSESSEES APPEAL IS DELAYED BY A PERIOD OF 118 DAYS, BEING FILED ON 24. 0 2.2012 , AS AGAINST THE DUE DATE OF 29.10.2011, WHICH FACT STANDS DULY COMMUNICATED TO THE ASSESSEE BY THE REGISTRY OF THE TRIBUNAL, PER A DE FECT MEMO DATED 04/2/ 2013 ON THE RECEIPT OF THE APPEAL. CONDONATION APPLICATION OF EVEN DATE IS ENCLOSED ALONG WITH THE APPEAL. THE SAME STATES THAT THE ASSESSEES COUNSEL, SHRI S.V. SHINDE, CA, WAS S UBJECT TO S EAR CH BY THE ENFORCEMENT DIRECTORATE (ED) ON 23.03.2011. AS A RESU LT, THE ENTIRE DOCUMENTATION PREPARED , INCLUDING THAT MAINTAINED ON THE HARD DISK OF THE C OMPUTER , AS WELL AS HARD COPIES ( OF THE BOOKS OF ACCOUNT/BALANCE - S HEET, ETC.) , PERTAINING TO THE ASSESSEE , WERE SEIZED . THE APPEAL PAPERS, PREPARED THUS WITH MUCH DEL AY, HAD TO BE APPROVED BY THE ASSESSEE, IN JUDICIAL CUSTODY SINCE MARCH 7 , 2011, LE A D ING TO FURTHER DELAY, AND WHICH THUS CAME TO BE FILED IN FEBRUARY , 2012 . THE DELAY IS ACCORDINGLY PRAYED FOR BEING CONDONED , BEING NEITHER INTENTIONAL NOR DELIBERATE . 3. WE SHALL AT FIRST CONSIDER THE ASSESSEES CO NDONATION PETITION . THE SAME IS, FIRSTLY, NOT ACCOMPANIED OR SUPPORTED BY AN A FFIDAVIT BY THE ASSESSEE S COUNSEL, SHRI S.V. SHINDE, CA, SEIZURE OF THE RELEVANT RECORDS FROM W H O S E OFFICE ON SEARCH , AND THE DELAY IN OBTAINING THE SAME , IS THE S TATED PRINCIPAL CAUSE FOR THE DELAY . T HE SAME IS ALSO SANS ANY REFERENCE TO DATES, VIZ. THE DATE ON WHICH THE APPLICATION F OR THE COPY OF THE SEIZED MATERIAL WAS FIL ED, AS WELL AS THE DATE ON WHICH THE SAME STOOD GRANTED AND , ACCORDINGLY , THE COPIES OBTAINED. THERE IS IN FACT NO MATERIAL ACCOMPANYING THE ASSESSEES APPEAL , VIZ. IN THE FORM OF A PAPER - BOOK, ETC . SO MUCH FOR THE RELEVANT MATERIAL, AS WELL AS THE APPROVAL THEREOF BY THE ASSESSEE. IN THIS RE GA RD , WE NOTE THAT TH E ONLY ADDITION IN ASSESSMENT AND, THUS , AG ITA TED IN APPEAL BY THE ASSESSEE, IS FOR RS.10,60,060/ - , MADE UNDER SECTION 69 C OF THE ACT . T HE REVENUE, ESTIMATED THE UNEXPLAINED (AS TO SOURCE) EXPENDITURE ON LIVING EXPENSES , AS FOR THE EARLIER YEARS (AYS. 2001 - 02 TO 2007 - 08) , AT RS.30 LACS, BASED ON THE ASSESSEES STATEMENT UNDER SECTION 132(4) DATED 05.01.2007 , NOTICING HIM TO BE MAINTAIN ING A LAVISH LIFESTYLE , ALLOWING THOUGH CREDIT FOR THE INCOME RETURN ED , HASSAN ALI KHAN V.ACIT ITA NO. 1299/MUM/2012 (A.Y. 2008 - 09) 3 BEING RS.19.40 LACS FOR THE CURRENT YEAR . THE AS SESSEE , WHOSE CASE FOR THE EARLIER YEARS I S NOT SUPPORTED BY ANY MATERIAL, CLAIM ING TO BE MISCONSTRUED IN - AS - MUCH AS HE SPECIFIED THE AMOUNT ONLY IN RELATION TO THE YEAR OF DEPOSITION, I.E., THE PREVIOUS YEAR RELEVANT TO AY 2007 - 08 AND NOT THE EARLIER YEAR S, WOULD NOT BE APPLICABLE IN - AS - MUCH THE YEAR UNDER REFERENCE IS A LATER, FOLLOWING, YEAR. THE ASSESSEES CASE FOR THE CURRENT YEAR , A S BORNE OUT BY THE EXTENSI VE GROUNDS OF APPEAL, IS OF BEING UNABLE TO LEAD A LAVISH (USUAL) L IFESTYLE FOR THE RELEVANT YEAR AS HE WA S UNDER HEAVY LITIGATION IN INDIA. WHAT MATERIAL , WE WONDER, DOES ONE NEED TO ESTABLISH THIS, APART FROM (SAY) FURNISHING COPIES OF THE NOTICES OR SHOW - CAUSES BEING ISSUED TO HIM BY DIFFERENT DEPARTMENTS , MUCH LESS, T HAT PREPARED, AS CLAIMED, ASSIDUOUSLY, BY HIS CA, SH. SHINDE . HOW WOULD THE BOOKS OF ACCOUNT OR BALANCE - SHEET/S, STATED TO BE PAINSTAKINGLY PREPARED BY SH. SHINDE, ALSO ON HIS COMPUTER, SEIZED BY ED, WOULD BE RELEVANT IN THE MATTER? NO DOUBT, WE DO NOT FIN D ANY SUCH MATERIAL BY THE ASSESSEE IN SUBSTANTIA TION OF H IS CASE ON RECORD. SUCH MATERIAL, IF ANY, COULD IN FACT ALSO BE PRODUCED SUBSEQUENT TO THE FILING OF THE APPEAL , EVEN AT THE TIME OF I T S HEARING . AGAIN, IT STANDS TO REASON THAT I F THE ASSESSEE COULD ENGAGE COUNSELS FOR, OR BE OTHERWISE INVOLVED IN, LITIGATION, THIS MATTER COULD ALSO BE ATTENDED TO ? FI NALLY, THE SEARCH BY ED IS ON 23 . 3.2011, WHILE THE IMPUGNED ORDER IS DATED 3 0.0 8 .2011. THE NON - OBTAINING OF THE PAPERS/DOCUMENTAT ION, EVEN AS THE ASSESSEES CASE IS WITHOUT REFERENCE TO ANY SUCH MATERIAL, WOULD THEREFORE BE , IF AT ALL , BEFORE THE FIRST APPELLATE AUTHORITY. WE OBSERVE N O PLEA QUA LACK OF OPPORTUNITY BY HIM BEFORE US. THE PLEA OF NON - A VAILAB ILITY OF THE RELEVANT MATERIALS - WHICH REMAIN UNSPECIFIED, COULD THUS NOT BE VALIDLY TAKEN BEFORE THE TRIBUNAL. IN FACT , AS AFORE - STATED, THE MATERIAL, IF ANY, C OULD BE FURNISHED EVEN SUBS EQUE NT TO FILING THE APPEAL , OR AT THE TIME OF I T S HEARING . A LL THAT THE ASSESSEE IS REQUIRED TO STATE, AT TH E STA GE OF FILING THE APPEAL , IS THE REASON / S THAT INFORM S HIS GRIEVANCE, I.E., THE GROUNDS ON WHICH THE REVENUES ACTION IS ASSAILED BY HIM . 4. WE, THEREFORE, ON ALL FOURS, FIND THE STATE REASON/S FOR THE DELAY AS UN - SUBSTANTIATED ; RATHER , INCORRECT , AND MERELY EXCUSES, S O THAT THE SAME REMAIN S TOTALLY UNEX PLAINED. THE LAW ON CONDONATION, AS EXPLAINED BY THE HONBLE APEX HASSAN ALI KHAN V.ACIT ITA NO. 1299/MUM/2012 (A.Y. 2008 - 09) 4 COURT TIME AND AGAIN, IS OF A LIBERAL APPROACH IN THE MATTER IN - AS - MUCH AS ALL THAT AN APPELLANT GETS , WHEN THE ADMITTED DELAY IS CONDONED , IS A DECISION ON MERITS, SO THAT THE ENDEAVOUR SHOULD BE THAT THE SUBSTANTIAL CAUSE OF JUSTICE PREVAILS. AT THE SAME TIME, IT CANNOT BE THAT THE LAW OF LIMITATION IS DISREGARDED AS OF NO CONSEQUENCE, SO THAT A BR EACH THERE OF IS DISREGARDED EVEN WHERE DELIBERATE, WHICH BECOMES APPARENT FROM THE RECORD IN - AS - MUCH AS THE SEIZURE THE STATED CAUSE, OCCURRED MONTH S PRIOR TO THE DATE OF THE IMPUGNED ORDER, WITH IT (SEIZURE) BEING IN FACT ITSELF OF NO RELEVANCE AS NO AC COUNTS , BALANCE - SHEET, ETC. OR DOCUMENTATION, STATED TO BE PREPARED WITH MUCH TIME AND LABOUR, WERE EITHER REQUIRED F OR THE PURPOSE OF FILING THE APPEAL, OR IN FACT FILED AT ANY STAGE , LEADING US TO STATE OF IT AS BE ING NOT VALID . THE ASSESSEE, WHO IS REPRESENTED BY A SEPARATE COUNSEL I N TAX MATTERS, HAS, WE MAY ADD, N OWHERE SHOWN HIS ENGAGEMENT WITH LITIGATION DURING THE INTERVENING PERIOD , ASCRIBING THE DELAY TO HIS TAX COUNSEL . IT IS ALL THIS THAT LED US TO STATE OF THE STATED REASON FOR THE DELAY AS INCORRECT, AND OF IT BEING , CONSEQUENTLY, DELIBERATE OR , IN ANY CASE, OCCASIONED BY LACHES. A PETITION BASED ON A WRONG CLAIM OR INCORRECT PREMISE CANNOT SURELY BE ACCEPTED. FURTHER, THE ASSESSEE HAD ALREADY FILED APPEALS FOR THE EARLIER YEARS BEFORE TH IS TRIBUNAL, SO THAT IT IS NOT T HE CASE, NOR IS CONTENDED TO BE SO, THAT HE WAS NOT AWARE OF THE PROCEDURE IN ITS RESPECT. WE, ACCORDINGLY, CONSIDER IT TO BE NOT A FIT CASE TO CONDONE THE DELAY. 5 . BEFORE PARTING WITH THIS ORDER, IT MAY BE PERTINENT T O STATE THAT THIS APPEAL, TAGGED ALONG WITH OTHER APPEALS , W A S POSTED FOR 17.2.20 1 6 FOR THE PURPOSE OF SEEKING CLARIFICATIONS. A J UNIOR ADVOCATE, SHRI RAMANATH PRABHU, FOR HSA ADVOCATES, WHO ARE NOT ADVOCATES ON RECORD, APPEARED AND SOUGHT ADJOURNMENT. TH ERE IS ALSO NO VAKALATNAMA IN HIS FAVOUR. THE QUESTION OF ADJOURNMENT UNDER THE CIRCUMSTANCES DOES NOT ARISE. WRITTEN SUBMISSIONS , ALLOWED TO BE FILED FOR THE YEARS (APPEALS) FOR WHICH THEY STAND AUTHORIZED, WERE FILED ON 22.2.2016 , WHICH BEAR REFERENCE TO THIS APPEAL (NUMBER) AS WELL. THE SAME STAND THOUGH PERUSED, TO FIND NO REFERENCE TO THE MATTER/S IN ISSUE. HASSAN ALI KHAN V.ACIT ITA NO. 1299/MUM/2012 (A.Y. 2008 - 09) 5 6. IN THE RESULT, T HE ASSESSEES APPEAL IS DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 2 9 , 2016. S D / - S D / - (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI DATED : 2 9 .02.2016 NEELAM / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI