DINESHKUMAR DARSHAN YADAV, MUMBAI V. ITO WD 4(1), THANE

ITA 2063/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8132 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: TANMAY LD
• Keywords: Unexplained expenditure
• Section: 143(3); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 2062/MUM/2017 ASSESSMENT YEAR: 2009-10 ITA NO. 2063/MUM/2017 ASSESSMENT YEAR: 2009-10 S HRI DINESHKUMAR DARSHAN YADAV B-401, NEW GARDEN VIEW, TULUNJ ROAD, NILASOPARA (E), THANE- 401203. PAN:ABHPY5190M VS. I.T.O., WARD 4(1), THANE (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI TANMAY, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HEARING : 1 8 .07.2019 DATE OF PRON OUNCEMENT : 1 8 - 07 - 2019 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE TWO SEPARATE ORDERS PASSED BY LD CIT(A) AND BOTH RELATE TO THE A SSESSMENT YEAR 2009-10. THE APPEAL NUMBERED AS ITA NO.2063/MBY/2017 IS DIRE CTED AGAINST THE ORDER PASSED BY LD CIT(A)-II, THANE AGAINST THE ASS ESSMENT ORDER PASSED U/S 143(3) OF THE ACT. THE OTHER APPEAL NUMBERED A S ITA NO.2062/MBY/2017 IS DIRECTED AGAINST THE ORDER PASS ED BY LD CIT(A)-3, THANE AGAINST THE ASSESSMENT ORDER PASSED U/S 144 R .W.S. 263 OF THE ACT. 2. BOTH THE APPEALS ARE BARRED BY LIMITATION BY 1 591 DAYS AND 404 DAYS RESPECTIVELY. THE ASSESSEE HAS MOVED PETITIONS REQ UESTING THE BENCH TO [2] ITA NO.2062/MUM/2017 ITA NO.2063/MUM/2017 SHRI DINESHKUMAR DARSHAN YADAV CONDONE THE DELAY. BEFORE EXAMINING THE PETITIONS, IT IS NECESSARY TO DWELL UPON THE FACTS RELATING TO THESE APPEALS. THE ORIG INAL ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 26.12.2011 BY THE AO, W HEREIN HE MADE ADDITION OF RS.10.90 LAKHS RELATING TO BANK DEPOSIT S AND RS.4.50 LAKHS U/S 68 OF THE ACT. THE ASSESSEE CHALLENGED THE ASSESSM ENT ORDER BY FILING APPEAL BEFORE LD CIT(A), WHO DISMISSED THE APPEAL, VIDE HI S ORDER DATED 14.09.2012. 3. THE LD ADMINISTRATIVE COMMISSIONER, HOWEVER, IN ITIATED REVISION PROCEEDINGS U/S 263 OF THE ACT ON 23-03-2014, SINCE THE AO DID NOT EXAMINE THE ISSUE OF INVESTMENTS MADE BY THE ASSESS EE IN A HOUSE PROPERTY. PURSUANT TO THE REVISION ORDER, THE AO COMPLETED TH E ASSESSMENT TO THE BEST OF HIS JUDGEMENT U/S 144 R.W.S 263 OF THE ACT, WHER EIN HE MADE THREE TYPES ADDITIONS, VIZ., ADDITION RELATING TO INVESTMENT IN HOUSE PROPERTY (RS.16.66 LAKHS), UNEXPLAINED EXPENDITURE (RS.13.20 LAKHS) AN D UNEXPLAINED PAYMENT (RS.25,000/-). THE ASSESSEE CHALLENGED THIS ASSESS MENT ORDER BY FILING APPEAL BEFORE LD CIT(A). HOWEVER, THE ASSESSEE WIT HDREW THE APPEAL ON 15.12.2015 BY STATING THAT THE APPEAL HAS BEEN ERRO NEOUSLY FILED BEFORE HIM INSTEAD OF FILING APPEAL BEFORE ITAT. ACCORDINGLY, THE LD CIT(A) DISMISSED THE APPEAL. 4. SUBSEQUENTLY, THE ASSESSEE FILED APPEALS BELATE DLY BEFORE ITAT CHALLENGING BOTH THE ORDERS PASSED BY LD CIT(A), RE FERRED SUPRA. 5. IT IS STATED THAT THE ASSESSEE WAS FULLY DEPEN DENT UPON HIS TAX CONSULTANT AND HAS ACTED AS PER HIS ADVICE. SINCE THE ASSESSMENT ORDER WAS RE-OPENED U/S 263 OF THE ACT, THE TAX CONSULTANT HA S ADVISED ASSESSEE NOT TO FILE APPEAL AGAINST THE ORDER PASSED BY LD CIT(A) R ELATING TO ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. THOUGH THE ASS ESSEE PREFERRED APPEAL [3] ITA NO.2062/MUM/2017 ITA NO.2063/MUM/2017 SHRI DINESHKUMAR DARSHAN YADAV BEFORE LD CIT(A) AGAINST THE ASSESSMENT ORDER PASSE D U/S 143(3) R.W.S 263 OF THE ACT, YET THE ASSESSEE WITHDREW THE APPEAL ON THE ADVICE OF TAX CONSULTANT WITH THE SUBMISSION THAT THE APPEAL IS R EQUIRED TO BE FILED BEFORE ITAT. WHEN THE ASSESSEE APPROACHED NEW CONSULTANT, WHEN HE GOT DEMAND NOTICES, THE NEW TAX CONSULTANT HAS ADVISED HIM TO PREFER APPEALS AGAINST BOTH THE ORDERS PASSED BY LD CIT(A). ACCORDINGLY T HESE TWO APPEALS CAME TO BE FILED BELATEDLY BEFORE ITAT. ACCORDINGLY IT WAS PRAYED THAT THE DELAY MAY BE CONDONED. 6. I SHALL FIRST TAKE UP THE APPEAL NUMBERED AS I TA NO.2062/MBY/2017 RELATING TO ASSESSMENT ORDER PASSED U/S 144 R.W.S. 263 OF THE ACT. I NOTICE THAT THE ADVICE GIVEN BY THE EARLIER TAX CONSULTANT TO WITHDRAW APPEAL FILED BEFORE LD CIT(A) AGAINST THE ASSESSMENT ORDER PASSE D U/S 143(3) R.W.S. 263 OF THE ACT IS NOT IN ACCORDANCE WITH THE LAW. SINC E THE ASSESSEE SHOULD NOT SUFFER AGAINST WRONG ADVICE OF THE TAX CONSULTANT, I AM OF THE VIEW THAT THE DELAY OF 404 DAYS SHOULD BE CONDONED. ACCORDINGLY I CONDONE THE DELAY OF 404 DAYS IN FILING THIS APPEAL. SINCE THE ASSESSEE HAS WITHDRAWN THE APPEAL FILED BEFORE LD CIT(A) ON THE WRONG ADVICE OF THE T AX CONSULTANT, NO FAULT CAN BE FOUND WITH THE ORDER OF LD CIT(A) IN ALLOWING TH E ASSESSEE TO WITHDRAW THE APPEAL. HENCE I AM OF THE VIEW THAT THE TRIBUNAL C ANNOT DO ANYTHING IN THIS MATTER. THE ASSESSEE, IF SO ADVISED, MAY PREFER FR ESH APPEAL BEFORE LD CIT(A). ACCORDINGLY THIS APPEAL OF THE ASSESSEE IS DISMISSED. 7. I SHALL NOW TAKE UP THE APPEAL NUMBERED AS I TA NO.2063/MBY/2017 RELATING TO ASSESSMENT ORDER PASSED U/S 143(3) OF T HE ACT. I NOTICE THAT THE ORDER PASSED BY LD CIT(A) IS DATED 14.09.2012. THE REVISION ORDER U/S 263 OF THE ACT WAS PASSED BY LD ADMINISTRATIVE COMMISSI ONER ON 23.03.2014, I.E., AFTER ABOUT EIGHTEEN MONTHS. AS PER THE LAW, THE ASSESSEE IS REQUIRED TO FILE APPEAL BEFORE ITAT WITHIN 60 DAYS FROM THE DAT E OF RECEIPT OF ORDER [4] ITA NO.2062/MUM/2017 ITA NO.2063/MUM/2017 SHRI DINESHKUMAR DARSHAN YADAV PASSED BY LD CIT(A). HENCE THE WRONG ADVICE GIVEN BY THE EARLIER TAX CONSULTANT IS ONLY PARTIALLY CORRECT IN THIS MATTER . HOWEVER, CONSIDERING THE FACT THAT THE EARLIER TAX CONSULTANT CHOSE TO WITHD RAW THE APPEAL BEFORE LD CIT(A) AGAINST THE ASSESSMENT ORDER PASSED U/S 1439 3) R.W.S. 263 OF THE ACT, I AM OF THE VIEW THAT THE ASSESSEE MIGHT NOT H AVE BEEN PROPERLY ADVISED BY HIM. HOWEVER, CONSIDERING THE TIME GAP BETWEEN THE APPELLATE ORDER AND REVISION ORDER, I AM OF THE VIEW THAT THE DELAY MAY BE CONDONED ON CERTAIN TERMS. I ALSO NOTICE THAT THE ASSESSEE HAS FURNISH ED EXPLANATIONS AGAINST THE ADDITION OF RS.10.90 LAKHS AND RS.4.50 LAKHS FO R THE FIRST TIME BEFORE LD CIT(A) AND THE FIRST APPELLATE AUTHORITY HAS REJECT ED THEM WITHOUT CONFRONTING THE SAME BEFORE THE AO. ACCORDINGLY, I AM OF THE VIEW THAT THESE TWO ISSUES REQUIRE FRESH ADJUDICATION. ACCORDINGLY I DIRECT THE ASSESSEE TO PAY A COST RS.5,000/- (RUPEES FIVE THOUSAND) TO THE CREDIT OF INCOME TAX DEPARTMENT AS OTHER FEES WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. SUBJECT TO THE ABOVE SAID PAYMENT, THE DELA Y IN FILING APPEAL IS CONDONED AND BOTH THE MATTERS ARE RESTORED TO THE F ILE OF LD CIT(A) WITH THE DIRECTION TO EXAMINE BOTH THE ISSUES AFRESH AFTER O BTAINING REMAND REPORT FROM THE AO. 8. IN THE RESULT, THE APPEAL NUMBERED AS ITA NO. 2062/MBY/2017 IS DISMISSED AND THE OTHER APPEAL (ITA NO. 2063/MBY/20 17 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 18 TH JULY,2019 [5] ITA NO.2062/MUM/2017 ITA NO.2063/MUM/2017 SHRI DINESHKUMAR DARSHAN YADAV *PP/SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER (ASSISTANTREGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI DATE INITIAL WHETHER DICTATION PAD ENCLOSED WITH THE FILE : NO 1. DRAFT DICTATED ON 19.07.2019 YES SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19/7 MATTER TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 19.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19/07 PP SR.PS 6. DATE OF PRONOUNCEMENT 18/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 19/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER