RAHUL NITIN SHAH ALIAS SANGHAVI HUF, MUMBAI V. ACIT CIR 15(3), MUMBAI

ITA 1756/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92853 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 01-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2014
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.1756/M/2014 (AY:2007 - 2008 ) RAHUL NITIN SHAH ALIAS SANGHAVI HUF, B/5, NEELKANTH DHARA, 90 FEET ROAD, GARODIA NAGAR, GHATKOPAR (E), MUMBAI 77. / VS. ACIT, CIRCLE 15(3), MUMBAI. ./ PAN : AAHHR 4439K ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : MS. NEELIMA V. NADKARNI, DR / DATE OF HEARING : 01.07.2015 / DATE OF PRONOUNCEMENT : 01.07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 13.3.2014 IS AGAINST THE ORDER OF THE CIT (A) - 26, MUMBAI DATED 8.2.2013 FOR THE ASSESSMENT YEAR 2007 - 2008. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD AR ERRED ON FACTS AND IN LAW IN TREATING THE INCOME OF SHORT TERM CAPITAL GAIN AS BUSINESS INCOME. 2. THERE IS NO PROVISION IN THE INCOME TAX ACT WHICH EMPOWERS THE LD AO TO TREAT ANY INCOME UNDER DIFFERENT HEAD. 3. THE LD AO HAS FAILED TO APPRECIATE THE FACTS OF THE CASE AND THE ACCEPTED RULES OF THE LINE OF ACTIVITIES CARRIED ON BY THE APPELLANT. 4. THE LD AO HAS FAILED TO APPRECIATE THAT THE INVESTMENT TRANSACTION OF SHARES AND ITS SALE ARE STT PAID TRANSACTIONS U/S 88E OF THE ACT. 5. THE LD AO HAS FAILED TO APPRECIATE THE CIRCULAR NO.4/2007, DATED 15.6.2007 ISSUED BY THE CBDT. 6. THE LD AO HAS FAILED TO APPRECIATE THE CIRCULAR NO.3/2006, DATED 27.2.2006 ISSUED BY THE CBDT. 2. AT THE OUTSET, THERE IS NONE TO REPRESENT ON BEHALF OF THE ASSESSEE DESPITE THE ISSUE OF NOTICE ON 27.5.2015, POSTING THE NEXT DATE OF HEARING TO 9.6.2015, AND ANOTHER NOTICE ON 9 .6.2015 POSTING THE CASE FOR HEARING ON 1.7.2015. CONSIDERING THE CONTINUOUS NON - REPRESENTATION OF THE ASSESSEE, I PROCEED TO ADJUDICATE THE APPEAL ON MERITS WITH THE HELP OF THE LD DR FOR THE REVENUE. 2 3. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, LD DR BROUGHT MY ATTENTION TO THE FACT THAT THE APPEAL WAS FILED BELATEDLY WITH A DELAY OF 319 DAYS. IN THIS REGARD, LD DR SUBMITTED THAT THE ORDER OF THE CIT (A) DATED 8.2.2013 WAS SERVED ON THE ASSESSEE ON 27.2.2013 AND THEREFORE, THE SAME WAS RECEIVED IN TIM E. HOWEVER, THE SAME WAS DID NOT ATTENDED TO BY THE ASSESSEE DUE TO THE TENSIONS APPLIED TO HIS LIFE. IN THIS REGARD, LD DR BROUGHT OUR ATTENTION TO PAGE 44 OF THE PAPER BOOK I.E., AFFIDAVIT OF SHRI SANTOSH D. MORE, WHO IS EMPLOYED WITH THE ASSESSEE, WIT H A REQUEST TO CONDONE THE DELAY. 4. I HAVE HEARD THE LD DR AND PERUSED THE SAID AFFIDAVIT DATED 11 TH MARCH 2014 AND FIND THE CONTENTS OF THE SAID AFFIDAVIT ARE RELEVANT IN THIS REGARD AND THEREFORE, THE SAME ARE EXTRACTED AS FOLLOWS: - 1. THAT I HAVE RECEIVED THE ORDER OF THE CIT APPEAL - 26, MUMBAI AROUND 15.3.2013. 2. THAT I AM UNDER VARIOUS FAMILY TENSION AND IN THIS TENSION, I HAVE MISPLACED THE CIT APPEAL - 26, ORDER DATED 8.2.2013 OF RAHUL N SHAH HUF AND I HAVE ALSO FORGOTTEN TO INFORM MR. RAHUL SHAH (KARTA OF HUF) ABOUT THE RECEIPT OF THE ORDER. 3. THAT NOW ON INQUIRIES MADE BY RAHUL N. SHAH, I RECOLLECT RECEIPT OF THE APPEAL ORDER AND I HAVE SEARCH FOR THE SAME. 4. THAT I HAVE NOW BEEN ABLE TO GET THE COPY OF CIT APPEAL ORDER DATED 8.2. 2013 AND HAND ED OVER TO THE SAME MR. RABUL N SHAH TODAY. 5. FROM THE ABOVE, IT IS CLEAR THAT FAMILY TENSION IS THE CAUSE OF HIS FAILURE TO FILE THE APPEAL IN TIME AND THE SAID REASON APPEARS TO BE VERY GENERAL IN NATURE AND THEREFORE, THE SAME CANNOT BE CONSIDERED AS AN ADEQUATE AND SUFFICIENT REASON GOOD ENOUGH FOR CONDONATION OF SUCH HUGE DELAY OF 319 DAYS. THEREFORE, AFTER HEARING THE LD DR AND AFTER GOING THROUGH THE RELEVANT PAPERS PLACED ON TO THE RECORD, I AM OF THE OPINION THAT THIS IS NOT A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, APPEAL FILED BY THE ASSESSEE WITH A DELAY OF 319 DAYS IS DISMISSED AS NOT ADMITTED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2015. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 1 .7 .2015 . . ./ OKK , SR. PS 3 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI