JOSEPH PETER GALIAUD, MUMBAI V. ITO WD 17(2) (1), MUMBAI

ITA 1727/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 4032 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 28-09-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAVIN SALUNKHE
• Assessee Lawyers: MOTI B. TOTLANI
• Keywords: Principle of natural justice; Competent authority; Condonation of delay
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “SMC” Bench, Mumbai Shri Shamim Yahya (AM) I.T.A. No. 1727/Mum/2021 (A.Y. 2014-15) Joseph Peter Galiaud Flat No. 1, 3 rd Floor Ashok-B, Next to Strand Cinema, Colaba Mumbai-400 005. PAN : AMUPG5975E Vs. ITO Ward-17(2)(1) Bandra Mumbai-400 051. (Appellant) (Respondent) Assessee by Shri Moti B. Totlani Department by Shri Pravin Salunkhe Date of Hearing 31.03.2022 Date of Pronouncement 22.04.2022 O R D E R Per Shamim Yahya (AM) :- This appeal by the assessee is directed against the order of learned CIT(A) dated 11.12.2017 pertains to A.Y. 2014-15. 2. The grounds of appeal read as under : I) AS REGARDS ADDITION MADE U/S.68 Rs.10,90,357/- i) That the learned CIT(A) erred in confirming the addition of Rs.10,90,357/- u/s.68 of the Act as Income from Other Sources when the provisions of this section are not attracted to the case of this Appellant. ii) That the learned CIT(A) failed to appreciate that the A.O. had himself admitted in his assessment order u/s.143(3) dated 26-12-2016, that the Appellant had Income from Other Sources only i.e. bank interest and tuitions and obviously no books were required to be maintained, accordingly provisions of section 68 do not get attracted. iii) That the learned CIT (A) failed to appreciate that the A.O. had made addition u/s.68 by relying on entries in bank statements, which are not books of accounts, which fact is admitted by the A.O. in the assessment order itself. Joseph Peter Galiaud 2 (WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE) II) AS REGARDS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE i) The learned CIT (A) failed to appreciate that no proper opportunity was granted to the Appellant by the learned A.O. to explain the source of deposits in the bank account. ii) The learned CIT (A) failed to realize that the A.O. passed the assessment order in haste as the assessment was getting barred by limitation on 31.12.2016 (admitted in para 3 of the order) iii) That learned CIT (A) failed to realize that return was filed on 15.03.2016 but show cause notice was issued by A.O. after lapse of 9 months on 16.12.2016 giving the Appellant only 6 (only 4 working days) days to reply. iv) That learned CIT (A) also failed to appreciate the explanation submitted by the Appellant with regard to source of cash deposits from his son's bank account. III) AS REGARDS LACK OF JURISDICTION WITH ITO 17(2) (1) , Mumbai TO PASS AN ORDER U/S.143 (3). That Hon'ble Tribunal is requested and urged to adjudicate that on the facts and circumstances of the case and in law the learned A.O. lacked jurisdiction to assessee the Appellant in as much as:- i) The impugned Assessment Order dated 26-12-2016 passed by the learned A.O. (ITO 17 (2) (1), Mumbai) is bad in law, illegal and without jurisdiction and/or in excess of jurisdiction, on the ground, that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the impugned assessment order and consequently the said assessment order deserves to be quashed. ii) That in the absence of mandatory order from a higher competent authority u/s.127(3) of the Act for transfer of Appellant's case from ITO WARD 17(2) (4), Mumbai (with whom the return was originally filed) to ITO WARD 17 (2) (1) ,Mumbai, the Assessment Order passed by ITO WARD 17(2} (1),Mumbai is bad in law and void ab initio, due to lack of jurisdiction as there is no mention of any order (for transfer of Appellant's case) passed by higher competent authorities in the impugned assessment order. (WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTEBNATE) IV) AS REGABDS FAILURE TO ISSUE NOTICE U/S.143(2) That Hon'ble Tribunal is requested and urged to adjudicate that on .the facts and circumstances of the case and in law that the return was originally filed with 1TO WARD 11 (2} (4) , Mumbai the learned succeeding 1TO WARD 11 Joseph Peter Galiaud 3 (2)(1) , Mumbai ought to have issued notice u/s.143 (2) of the Act before passing the impugned assessment order. (The Appellant places on record that he does not posses the said notice u/s.143(2) dt.03-08-2016 as mentioned in the assessment order. This ground of appeal is taken out of abundant caution.) 3. Brief facts of the case are that addition in this case was done for cash deposit in assessee’ bank account. Assessee’s explanation was that it was a joint account and the money belonged to his son. However the learned CIT(A) confirmed the addition. Therefore assessee has submitted that upon advice of chartered accountant he did not contest the order of learned CIT(A) before the ITAT. That the assessee paid the due taxes. However subsequently he received order levying penalty. Then he considered filing appeal. In these facts assessee seeks condonation of delay of over 1300 days. 4. Upon careful consideration, I do not find any cogency in the reasonable cause attributed. Hence, the delay is not liable to be condoned. Hence, the appeal is dismissed as time barred. 5. In the result appeal of the assessee is dismissed. Order pronounced in the open court on 22.04.2022. Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Mumbai; Dated : 22/04/2022 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai