BHARTI S. KHANDHAR, MUMBAI V. ITO 13(3)(3), MUMBAI

ITA 2002/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83496 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 06-08-2014
• Assessment Year: 1994-1995
• Appeal Filed On: 26-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANURAG SRIVASTAVA
• Assessee Lawyers: GANESH MORE ACCOU NTANT
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.2001/MUM/2012 (A.Y. 1993-94) ITA NO.2002/MUM/2012(A.Y.1994-95) BHARATI S. KHANDHAR, 208, PARSHWA CHAMBERS, 19/21, ISSAJI STREET, VADGADI, MUMBAI. PAN: ALUPK 7663G (APPELLANT) VS. THE I.T.O 13(3), AAYKAR BHAVAN, MK ROAD, MUMBAI -20. (RESPONDENT) APPELLANT BY : SHRI GANESH MORE (ACCOU NTANT) RESPONDENT BY : SHRI AN URAG SRIVASTAVA DATE OF HEARING : 06/08/2014 DATE OF PRONOUNCEMENT : 06 /08/2014 ORDER PER I.P.BANSAL, JM: THESE APPEALS ARE FILED BY THE ASSESSEE AND THEY AR E DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A)-24, MUMBAI DA TED 23/1/2012 FOR ASSESSMENT YEARS 1993-94 AND 1994-95. GROUNDS OF APPEAL IN BO TH THE APPEALS ARE IDENTICAL EXCEPT DIFFERENCE IN FIGURES. GROUNDS OF APPEAL FO R ASSESSMENT YEAR 1993-94 READ AS UNDER: 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE QUANTUM ADDITION OF RS.3,89,616/- HAS BEEN DELETED BY THE ASSESSING OFFICER AS PER THE DIRECTION OF HONB LE TRIBUNAL, MUMBAI AND INSTEAD OF DIRECTING THE AO TO DELETE THE PENALTY U/S 271(1)(C ) OF RS.1,74,548/- HE DID NOT EVEN ADMIT THE APPEAL DUE TO DELAY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN HOLDING THAT ONGOING ASSESSMENT PROCEEDINGS I.E. COMPLETION OF S ET ASIDE ORDER FOR THE SAME ASSESSMENT YEAR AS PER THE DIRECTION OF HONBLE TRI BUNAL, IS NOT A VALID GROUND FOR DELAY IN FILING APPEAL. ITA NO.2001/MUM/2012 (A.Y. 1993-94) ITA NO.2002/MUM/2012(A.Y.1994-95) 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE T HEN LEARNED AC ERRED IN LEVYING PENALTY OF RS. 1,74,548/-. SINCE, THE LEARNED CIT(A ) HAS NOT APPRECIATED THE FACTS OF THE CASE THAT THERE IS NO QUANTUM ADDITION HENCE THERE SHOULD NOT BE ANY PENALTY ON IT AND LEARNED AC HAS ALSO NOT CARRIED OUT ANY RECTIFICATI ON EVEN AFTER DELETING THE QUANTUM THE APPELLANT WAS FORCED TO FILE THIS APPEAL WITHOUT PR EJUDICE TO ABOVE GROUNDS THIS GROUND WAS APPEAL SHOULD BE CONSIDERED BY THE HONB LE TRIBUNAL. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE H ONBLE ITAT, MUMBAI WAS PLEASED TO SET ASIDE THE ORDER ON THE QUANTUM ADDITION MADE BY AO ON WHICH THE PENALTY WAS LEVIED EARLIER BY THE THAN AO WRONGLY. AFTER MORE T HAN 1 (ONE & HALF YEAR) AFTER PASSING THE ORDER OF ITAT, MUMBAI, THE AO DELETE TH E QUANTUM ADDITIONS AS PER THE DIRECTION OF HONBLE ITAT, MUMBAI. 2. FOR ASSESSMENT YEAR 1994-95 THE FIGURES MENTIONE D IN GROUND NO.1 & 3 ARE SUBSTITUTED BY THE FIGURE OF RS.7,57,065/- AND RS.3 ,06,830/- RESPECTIVELY. IT MAY ALSO BE MENTIONED HERE THAT THERE IS A MISTAKE IN WRITING THE SERIAL NUMBER OF GROUNDS OF APPEAL IN A.Y 1994-95, AS GROUND NO.3 A ND 4 DESCRIBED IN 1994-95 AS GROUND NO.5 & 6. 3. THE ACCOUNTANT OF THE ASSESSEE HAS APPEARED SEEK ING ADJOURNMENT OF THE PRESENT APPEALS. HOWEVER, IT WAS NOTICED THAT APPE AL HAS BEEN DISMISSED BY LD. CIT(A) ON THE GROUND THAT DELAY OF 724 DAYS IN P RESENTING THE APPEAL COULD NOT BE CONDONED. IT WAS ONE OF THE SUBMISSIONS OF THE ASS ESSEE THAT IN ONE OF THE GROUP CASES NAMELY MR. SURENDRA M. KHANDHAR, THE ITAT VI DE ITS ORDER DATED 25/2/2010 IN ITA NO.2911,2912, 2913 & 3068/MUM/2008 HAS CONDO NED THE DELAY IN FILING OF THE APPEAL BEFORE LD. CIT(A) AFTER QUANTIFYING THE COST PAYABLE BY THE ASSESSEE AT RS.10,000/- PER APPEAL. THEREFORE, IT WAS REQUESTE D BEFORE LD. CIT(A) TO CONDONE THE DELAY SUBJECT TO PAYMENT OF COST. LD. CIT(A) DID N OT ACCEPT SUCH SUBMISSIONS AND HAS DISMISSED THE APPEAL WITH THE FOLLOWING OBSERVA TIONS: 4.1 THE ASSESSEE HAS PLACED RELIANCE ON THE DECISIO N OF HONBLE ITAT E BENCH, MUMBAI IN THE CASE OF MR. SURENDRA M KHANDHAR IN ITA NO.29 11, 2912, 2913 AND 3068/MUM/08 DTD.25/02/2010 IN WHICH, HONBLE TRIBUN AL HAS CONDONED THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE LD.CIT(A) AFTER QUANTIFYING COST PAYABLE BY THE ASSESSEE ATRS.1O,000/- PER APPEAL, TO SUBMIT THAT I N VIEW OF THE SAME, CIT(APPEALS) MAY CONDONE THE DELAY. I DO NOT AGREE WITH THE ASSE SSEE THAT THE DECISION OF THE HONBLE ITAT IS APPLICABLE IN HER CASE. HONBLE ITAT HAS C ONDONED THE DELAY IN FILING APPEAL BEFORE THE CIT(APPEALS) ONLY AFTER QUANTIFYING THE COST OF RS.1O,000/- PER APPEAL TO BE ITA NO.2001/MUM/2012 (A.Y. 1993-94) ITA NO.2002/MUM/2012(A.Y.1994-95) 3 PAID BY THE APPELLANT TO THE RESPONDENT. THIS ONLY SHOWS THAT WITHOUT LEVYING COST, THE HONBLE TRIBUNAL WAS NOT INCLINED TO CONDONE SUCH D ELAY. THE CIT (APPEAL) DOES NOT HAVE THE POWER TO LEVY COST ON THE ASSESSEE. HENCE, THE DECISION OF HONBLE ITAT WOULD NOT BE APPLICABLE TO THE CASE AND FACTS OF THE ASSE SSEE. THE OBSERVATIONS OF LD. CIT(A) IN BOTH THE APPEALS ARE IDENTICAL. 4. COPY OF THE AFOREMENTIONED ORDER OF TRIBUNAL DAT ED 25/02/2010 PLACED ON RECORD. IN THE SAID CASE THE DELAY IN FILING THE APPEAL BEFORE LD. CIT(A) WAS 723 DAYS AS IS EVIDENT FROM PARA-3 OF THE SAID ORDER, WHICH IS REPRODUCED BELOW: 3. THE MAIN GRIEVANCE OF THE ASSESSEE PROJECTED I N ALL THESE APPEAL IS AGAINST THE ORDER OF LEARNED CIT(A) REFUSING TO CONDONE THE DELAY IN FILING THE APPEALS BEFORE HIM AGAINST THE ORDER OF ASSESSING OFFICER PASSED U/S. 144 FOR A.Y 1992-93, 1993-94; 1995-96 AND 1996-97. THE DELAY IN FILING THE APPEALS BEFORE LD . CIT(A) IN ALL THESE YEARS IS A DELAY OF 723 DAYS. FINALLY AFTER CONSIDERING ALL THE FACTS THE TRIBUNA L HAS DIRECTED LD. CIT(A) TO CONDONE THE DELAY WITH THE FOLLOWING OBSERVATIONS. 9. WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD PA Y COSTS FOR LAPSE ON HIS PART. WE QUANTIFY COST PAYABLE BY THE ASSESSEE AT RS.10,000/ - PER APPEAL. COSTS SHALL BE PAID TO THE RESPONDENT IN THESE APPEALS WITHIN THE PERIOD O F 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER BY THE ASSESSEE. WE CONDONE THE DELAY I N FILING THE APPEAL BY THE ASSESSEE BEFORE LEARNED CIT(A). 4. IN THIS VIEW OF THE MATTER AFTER HEARING LD. DR AND THE ACCOUNTANT OF THE ASSESSEE, WE ARE OF THE VIEW THAT SIMILAR DECISION SHOULD BE APPLIED TO THE PRESENT CASE ALSO AND LD. CIT(A) SHOULD BE DIRECTED TO CON DONE THE DELAY SUBJECT TO PAYMENT OF RS.10,000/- AS COST TO THE DEPARTMENT, WHICH ASSESSEE WILL PAY WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. ON MAKING SUCH PAYMENT OF COST LD. CIT(A) IS DIRECTED TO CONDONE THE DELAY AND HEA R THE APPEALS FILED BY THE ASSESSEE ON MERIT. WE DIRECT ACCORDINGLY. THUS, THE APPEAL S FILED BY THE ASSESSEE ARE DISPOSED OF ONLY ON THIS GROUND. WE MAY ALSO ME NTION HERE THAT WE NEED NOT TO GO INTO THE MERITS OF OTHER GROUNDS AS ALL THOSE G ROUNDS WILL BE RE-ADJUDICATED BY LD. ITA NO.2001/MUM/2012 (A.Y. 1993-94) ITA NO.2002/MUM/2012(A.Y.1994-95) 4 CIT(A) AFTER CONDONING THE DELAY SUBJECT TO MAKING AFOREMENTIONED PAYMENT OF COST. WITH THESE OBSERVATIONS WE DISPOSE OF THESE APPEALS . 5. IN THE RESULT, BOTH THE APPEALS ARE CONSIDERED T O BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 06/08/201 4 ! ' #$ % &'( 06/08/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 06/08/2014 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS