CHHABRIA BANSILAL NEWANDRAM, MUMBAI V. ITO WD 15(2)(4), MUMBAI

ITA 1967/MUM/2009

• Counselvise Citation: 196719914 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 31-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RK GUPTA
• Assessee Lawyers: B V JHAVERI
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SHRI ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NO. 1967/MUM./2009 (ASSESSMENT YEAR : 2002-03 ) DATE OF HEARING: 5.5.2011 MR. CHHABRIA BANSILAL NEWANDRAM C/O M/S. G. DEEPAK & CO., C.AS B/14, SUBHLAXMI, 8 TH ROAD SANTACRUZ (E), MUMBAI 400 055 PAN AACPC8671P .. APPELLANT V/S INCOME TAX OFFICER, WARD-15(2)-4 MATRU MANDIR, GRANT ROAD MUMBAI .... RESPONDENT ASSESSEE BY : MR. B.V. JHAVERI REVENUE BY : MR. R.K. GUPTA O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE ASSESSEE, IS DIRECTED AGAI NST THE IMPUGNED ORDER DATED 24 TH OCTOBER 2005, PASSED BY THE COMMISSIONER (APPEALS) -XV, MUMBAI, FOR ASSESSMENT YEAR 2002-03. 2. THERE IS A DELAY OF 1,162 DAYS IN FILING THIS AP PEAL. THE ASSESSEE EXPLAINS THE DELAY BY SUBMITTING AS FOLLOWS:- 1. I HAD SUBMITTED MY RETURN OF INCOME FOR ASSESSM ENT YEAR UNDER REFERENCE ON 31 ST OCTOBER 2002. THE SAID RETURN OF INCOME WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT OF MY INCOME WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 30 TH MARCH 2005. IN RESPONSE TO THE SAID ASSESSMENT ORDER, I HAD FILED AN APPEAL WITH THE MR. CHHABRIA BANSILAL NEWANDRAM ITA NO.1967/MUM./2009 2 HONBLE COMMISSIONER (APPEALS), XV, MUMBAI. THE HON BLE CIT (APPEALS) PASSED HIS ORDER DATED 20 TH OCTOBER 2005, SERVED ON ME ON 25 TH NOVEMBER 2005, WHERE HE DECIDED 4 (FOUR) GROUNDS O F APPEAL AGAINST ME. 2. AGGRIEVED BY THE SAID APPELLATE ORDER, I HAD DEC IDED TO PREFER SECOND APPEAL WITH THE HONBLE ITAT. I HAVE YET TO FILE THE SECOND APPEAL. 3. I WILL FILE MY APPEAL TODAY (I.E., 31 ST MARCH 2009). THIS WILL MEAN THAT I WILL FILE MY APPEAL DELAYED BY ABOUT 1,198 D AYS. 4. THE MAIN REASON FOR DELAY IN FURNISHING MY APPEA L WITH THE HONBLE TIAT, MUMBAI WAS THAT I LOST MY SON AGED AB OUT 27 YEARS CAUSING ME TO BECOME A DUMB OUT OF SHOCK HIS DEATH, MY WIFE SUFFERING FROM VARIOUS DISEASES INCLUDING PARALYTIC ATTACH, ETC. I HAVE SET OUT THE REASONS IN MORE DETAIL IN THE AFFIDAVIT MADE OF THE EVEN DATE AND ENCLOSED HEREWITH. 5. I HOPE YOUR HONOUR WILL APPRECIATE THAT I AM DEL AYED IN FILING MY APPEAL DUE TO THE REASONS BEYOND MY CONTROL AND THEREFORE CONDONE THE DELAY AND ALLOW ME AN OPPORTUNITY OF BE ING HEARD. I HAVE ALSO TO STATE WITHOUT PREJUDICE TO THE ABOVE AND ON MERITS THAT THE GROUNDS INVOLVING MAJOR AMOUNTS ARE SIMILAR TO THAT OF THE ASSESSMENT YEAR 2001-02, WHICH WERE DECIDED BY THE HONBLE ITA T, B BENCH, MUMBAI. AS SUCH, I SUBMIT RESPECTFULLY THAT ONCE GI VEN AN OPPORTUNITY, I WILL GET FAVOUR IN THE FORM OF GETTING RELIEF AND AS SUCH JUSTICE VERY NECESSARY FOR ME. 3. AN AFFIDAVIT HAS BEEN FILED IN THIS REGARD. THE ASS ESSEE ALSO RELIED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS CONTENTION THAT THE DELAY HAS TO BE CONDONED AS A MATTER OF RIGHT AND O NLY IN EXCEPTIONAL CIRCUMSTANCES, THE CASE CAN BE DISMISSED ON THE GRO UND OF DELAY. N. BALKRISHNAN V/S M. KRISHNAMURTHY, (1987) 7 SCC 123, COLLECTOR, LAND ACQUISITION V/S MST. KATIJI & ORS. (1987) 167 ITR 4 71 (SC), ANGELA J. KAZI V/S ITO, (2006) 10 SOT 139 (MUM.). 4. LEARNED COUNSEL, MR. B.V. JHAVERI, APPEARING ON BEH ALF OF THE ASSESSEE, TOOK THIS BENCH THROUGH THE JUDICIAL PRON OUNCEMENTS AS WELL AS THE EXPLANATIONS GIVEN BY THE ASSESSEE AND SUBMITS THAT THERE IS NO MALAFIDE ATTRIBUTABLE TO THE ASSESSEE FOR THE DELAY AND, IN FACT, THE ISSUES ARE COVERED IN HIS FAVOUR AND THERE IS NO REASON FOR THE ASSESS EE FOR NOT HAVING PROSECUTED THE APPEAL. MR. CHHABRIA BANSILAL NEWANDRAM ITA NO.1967/MUM./2009 3 5. LEARNED DEPARTMENTAL REPRESENTATIVE, MR. R.K. GUPTA , STRONGLY OPPOSED THE CONTENTION. 6. RIVAL CONTENTIONS HEARD. ON CAREFUL CONSIDERATION O F THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON PERUSAL OF THE PAP ERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE LAWS CITE D BEFORE US, WE HOLD AS FOLLOWS:- THE CONDONATION OF DELAY DEPENDS ON THE F ACTS AND CIRCUMSTANCES OF THE CASE. IN THIS CASE, THE MAIN REASON APPEARS TO BE THE SUDDEN DEATH OF A 27 YEARS AGED SON. UNFORTUNATE DEATH TOOK PLACE ON 12 TH NOVEMBER 2000. THE ASSESSMENT ORDER, IN THIS CASE, WAS PASSED ON 3 0 TH MARCH 2005. THE RETURN OF INCOME WAS FILED ON 31 ST OCTOBER 2002. THE COMMISSIONER (APPEALS) PASSED HIS ORDER ON 20 TH OCTOBER 2005. THIS SHOWS THAT THE DEATH OF ASSESSEES SON IN THE YEAR 2000 HAS NOT COME IN THE WAY OF ASSESSEE FILING NOT ONLY THE RETURN OF INCOME BUT ALSO ATTENDING TH E ASSESSMENT PROCEEDINGS AND THEREAFTER FILING THE APPEAL WITH THE COMMISSIO NER (APPEALS). COMING TO THE SECOND REASON, IT SAYS THAT THE ASSESSEE IS A C ARDIAC PATIENT SINCE 2001. THIS REASON IS ALSO PRIOR TO THE ASSESSEES FILING HIS RETURN OF INCOME. THE THIRD REASON IS ILL-HEALTH OF ASSESSEES SON AND HI S WIFE. HERE ALSO, FROM THE DATES GIVEN IN THE AFFIDAVIT, IT CAN BE SEEN THAT H OSPITALIZATION WAS FROM NOVEMBER 2000 TO DECEMBER 2000. THEREAFTER, IN THE YEAR 2001, THE HOSPITALIZATION WAS ONLY FOR FEW DAYS, ONE DAY IN T HE YEAR 2002 AND SEVEN DAYS IN THE YEAR 2004, ETC. THE OTHER REASONS GIVEN IS OF RELATIVES AND ALSO THAT THE CHARTERED ACCOUNTANTS, MR. DEEPAK G. THAKA RAR, WAS OUT OF COUNTRY FOR THE LAST THREE YEARS. IN OUR HUMBLE OPINION, TH ESE ARE NOT SUFFICIENT REASONS TO EXPLAIN THE DELAY AS THE ASSESSEE HAS FI LED HIS RETURN OF INCOME AFTER GETTING THE BOOKS OF ACCOUNT TAXED AUDITED WE LL IN TIME FOR ASSESSMENT YEARS 2003-04. 2004-05 AND 2005-06. WHEN THE ASSESS EE COULD GET HIS ACCOUNTS AUDITED IN TIME AND WHEN THE ASSESSEE COUL D FILE ALL THE RETURN OF INCOME IN TIME I.E., WITHIN THE DUE DATE FOR ALL TH E ASSESSMENT YEARS, IT CANNOT BE UNDERSTOOD AS TO HOW THE REASONS CITED BY THE ASSESSEE CAN BE SAID TO BE SUFFICIENT FOR EXPLAINING HUGE DELAY OF 1,162 DAYS. COMING TO THE JUDICIAL PRONOUNCEMENTS CITED BY THE ASSESSEE, AS A LREADY HELD, THE FACTS AND MR. CHHABRIA BANSILAL NEWANDRAM ITA NO.1967/MUM./2009 4 CIRCUMSTANCES OF EACH CASE HAVE TO BE CONSIDERED IF THE EXPLANATION GIVEN BY THE ASSESSEE IS POSSIBLE AND BONAFIDE EXPLANATION, THE DELAY HAS TO BE CONDONED. AS IN THIS CASE, WE ARE OF THE OPINION TH AT THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT A POSSIBLE AND BONAFIDE EXPL ANATION ON THE FACTS AND CIRCUMSTANCES OF THIS CASE. CONSEQUENTLY, WE REJECT THE PETITION FOR CONDONATION OF DELAY. 7. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.5.2011 SD/- ASHA VIJAYRAGHAVAN JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, C BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI