The ITO, Ward-2 (1) (2), RAJKOT-GUJARAT V. Shri Bhavesh Harkishandas Kamdar, RAJKOT-GUJARAT

ITA 130/RJT/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0889 (ITAT-RAJKOT)
• Duration Of Justice: 5 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Rajkot
• Next Hearing Date: 02-07-2024
• Assessment Year: 2004-2005
• Appeal Filed On: 02-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Condonation of delay; Set aside
• Section: 2; 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No.130/RJT/2019 (Assessment Year: 2004-05) (Hybrid Hearing) The ITO, Ward-2(1)(2), Rajkot Vs. Shri Bhavesh Harikishandas Kamdar, Vansiro House, 30, Karan Para, Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AJLPK7197C (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरतीकȧओरसे/Assessee by : Shri Mehul Ranpura, AR राजèवकȧओरसे/Revenue by : Shri K.L. Solanki, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 03/07/2024 घोषणाकȧतारȣख/Date of Pronouncement : 19/07/2024 आदेश/ORDER PER DINESH MOHAN SINHA, JM: Captioned appeal filed by the Revenue, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-III, Ahmedabad, (in short ‘the Ld. CIT(A)’), dated 03.08.2010 under section 143(3) r.w.s. 147 & 154 of the Income Tax Act, 1961 (in short, ‘the Act’). 2. The Grounds of appeal raised by the Revenue are as follows:- “1. The Ld. CIT(A)-III, Rajkot has erred in law and on facts in holding that the interest income in NRE account amounting to Rs. I.T.A No. 130/Rjt/2019 Shri Bhavesh Harkishandas Kamdar 2 1,15,00,238/- and the interest income of FCNR deposit amounting to Rs. 37,53,124/- was exempt u/s. 10(15)(iv)(fa). 2. The Ld. CIT(A)-III, Rajkot has erred in law and on facts in holding that the interest income in NRE account amounting to Rs. 1,15,00,238/- and the interest income of FCNR deposit amounting to Rs. 37,53,124/- was exempt u/s. 10(4)(ii). 3. The Ld. CIT(A)-III, Rajkot has erred in law and on facts in holding that the assessee was "person resident outside India" within the meaning of clause (q) of section 2 of Foreign Exchange Regulation Act. 4. On the facts of the case, the Ld. CIT (A) ought to have upheld the order of the A.O. 5. It is therefore, prayed that the order of the CIT (A) may kindly be set aside and that of the A.O. be restored back to the above extent.” 3. At the outset of hearing, it is noted that the appeal is barred by limitation for 3119 days. The assessee filed condonation of delay application on 31-05-2019 which is reproduced below:- “To Hon'ble Members Income Tax Appellate Tribunal Rakot Bench, Rajkot Respected Sirs, Sub Prayer for Condonation of delay in filing of appeal against the Appellate order dated 03/08/2010 Α.Υ. 2004-2005 in the case of Shri Bhavesh H. Kamdar, Rajkot PAN: AJLPK7197C-reg Kindly refer to the above subject 2 In this connection it is stated that the above named assessee is assessed to tax by this office. The case of the assessee was re opened by issuing notice u/x. 148 on 26/02/2009. The assessment u/s. 143(3) r.w.s. 147 was finalized on 13/12/2009 making disallowance of Rs. 25,23,34,945/- on account of interest income on accounts claimed as NRE accounts and FCNR bank interest. Subsequently order u/s 154 was passed on 30/12/2009 reducing the income of Rs. 1,52,53,362/, I.T.A No. 130/Rjt/2019 Shri Bhavesh Harkishandas Kamdar 3 sustaining the disallowance of NRE Bank interest of Rs. 1,15,00,238/- and FCNR Bank interest of Rs. 37,53,124/- aggregating to Rs. 152,53,362/ 3. Being aggrieved the assessee had filed an appeal before the CIT(A). The CIT(A) vide order dated 03/08/2010 allowed the appeal of the assessee. The order of CIT(A) was received in the office of the CIT-2, Rajkot on 16/09/2010 and the CIT-2, Rajkot had directed and issued memorandum to the then ITO, Ward 2(2), Rajkot for filing appeal before your honor on 29/10/2010, Inadvertently and through oversight the appeal was not filed before your honor within stipulated time Le. before 13/11/2010. Thus the delay in filing of appeal was present. Now the Pr.CIT-2, Rajkot vide letter dated 24/05/2019 directed undersigned to file the appeal before your honour. Therefore, the appeal is being filed after due date due to the reasons stated above and unintentional lapse on the part of the appellant. 4. In view of the above, the appellant humbly prays before your honour that the delay in filing above appeal may kindly be condoned and may please be admitted and decided on merits by exercising of your powers vide provisions of section 249(3) of the Income-tax Act, 1961. Thanking you, Sd/- Yours faithfully, (KG Kachhadiya) Income tax Officer, Ward 2(1)(2) Rajkot” 4. During the course of hearing, the ld. D.R. has filed the report obtained from ITO on14-04-2023 and report obtained from JCIT dated 05-07-2023. These reports were submitted to the registrar of Tribunal on 18 th April, 2024 which reads as under:- "Inadvertently and through oversight the appeal was not filed before your honour within stipulated time i.e. before 13.11.2010." “On verification of the case records, it is seen vide prayer/letter No. ITO/Wd.2(1)(2)/Rjt./ITAT/appeal/BHK/2019-20 Dtd 31.05.2019 for condonation of delay in filing of appeal before Hon. ITAT against the appellate order No. CIT(A)-III/0195/09- 10 dtd. 03.08.2010, it is prayed that "Inadvertently and through oversight the appeal was not filed before your honour within stipulated time i.e. before 13.11.2010." I.T.A No. 130/Rjt/2019 Shri Bhavesh Harkishandas Kamdar 4 “3. ......that the appeal remained to be filed through oversight far as the appeals for AYs 2003-04 and 2005-06 are concerned the AO has reported that the additions/disallowances for AY 2003-04 and 2005-06 have been deleted by the CIT(A). Further the Hon'ble ITAT had also dismissed the Department's appeal. The appeal before the Hon'ble Gujarat High Court in Tax Appeal Ne 200 & 201 of 2019 was dismissed by the Hon'ble Gujarat High Court vide its order dated 09.09.2019 in view of low tax effect. 4. The AO has finally reported that no SLP was filed for both the AYs as intimated vide PCIT- 3. Rajkot letter No. Pr. CIT.R-3/HQ/Jud./No- SLP/BHK/2019-20/1435 dated 06.11.2019. The above facts may kindly be noted. The appeal before the Hon’ble ITAT for the current AY i.e. 2004-05 was filed on 03.06 2019 which may kindly be noted.” 5. On perusal of the application for condonation of delay is not stating any specific reasons for not filing of an appeal within limitation. The application only talks about that due to oversight the appeal could not be filed. No details has been submitted. It was further observed that Form 36 is not properly filled. In column No. 3 the date of order against that order of the CIT(A) is to be filled. However, the contents of ITO order and service of the ITO order were filled. No affidavit has been filed in support of the condonation of delay application. On the other hand, Ld. A.R. strongly opposed the application for condonation of delay which is nine years old as stated by JCIT. 6. We have heard both the parties and perused the materials on record. We noted that the condonation of delay application is vague. No evidence is brought on record about the reasons for delay. The ld. D.R. could not establish a substantial cause for condonation of delay from filing the appeal in time. We consider that there is no force in the application for condonation of delay in I.T.A No. 130/Rjt/2019 Shri Bhavesh Harkishandas Kamdar 5 time before the Tribunal. Hence, the application for condonation of delay is dismissed. Accordingly, the appeal of the assessee is also dismissed. 7. In the result, the appeal of the revenue is dismissed. Order pronounced in the open court on 19-07-2024 Sd/- Sd/- (A. L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot Dated: 19/07/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Rajkot 6. Guard file. By order/आदेश से, Assistant Registrar ITAT, Rajkot