Sh. Ram Kumar Malhotra, New Delhi V. DCIT, New Delhi

ITA 2082/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6750 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 27-12-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 18-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: RAKESH KUMAR GUPTA
• Keywords: Unexplained expenditure; Principle of natural justice; Condonation of delay
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-1 NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2082/DEL/2016 ASSESSMENT YEAR: 2005-06 SH. RAM KUMAR MALHOTRA, VS. INCOME TAX OFFICER, C/O M/S RRA TAXINDIA WARD 40(4), D-28, SOUTH EXTENSION, NEW DELHI PART-I, NEW DELHI 49 (PAN: AEKPM0570K) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. RAKESH KUMAR GUPTA, ADV. REVENUE BY : SH. F.R. MEENA, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDE R DATED 21.5.2014 PASSED BY THE LD. CIT(A)-XXVII, NEW DELHI RELATING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED READ AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT DELETING THE ADDITION OF RS. 3,84,540/- FULLY A S MADE BY AO ON ACCOUNT OF ALLEGED UNEXPLAINED EXPENDITURE AND HAS FURTHER ERRED IN SUSTAINING THE SAME TO THE EXTENT OF RS. 3,58,910/- AND THAT TOO B Y RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 2 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN NOT DELETING THE ADDITION OF RS. 3,84,540/- FULLY AS MADE BY AO ON ACCOUNT OF ALLEG ED UNEXPLAINED EXPENDITURE AND HAS FURTHER ERRED IN SUSTAINING THE SAME TO THE EXTENT OF RS. 3,58,910/ - IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN MAKING DISALLOWANCE OF RS. 48,000/- ON ACCOUNT OF HOUSE HOLD EXPENSES AND ERRED IN OBSERVING THAT ASSESSEE HAS AGREED FOR THI S DISALLOWANCE. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF AO IN CHARGING INTEREST U/S. 234A, 234B AND 234C OF INCOME TAX ACT, 1961. 5. THAT THE APPELLANT CRAVES TO LAVE TO ADD, MODIFY , AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITH OUT PREJUDICE TO EACH OTHER. 3 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I FIND THAT AT THE TIME OF FILING THE APPEAL BEFORE THE TRIBUNA L ON 18.4.2016, THE REGISTRY HAS ISSUED THE DEFECT NOTICE AND RAISED TH E DEFECT VIDE SERIAL NO. 11 STATING THEREIN THAT APPEAL IS PRIMA FACIE TIME BARRED BY 605 DAYS. IN RESPONSE TO ABOVE SAID DEFECT NOTICE, ASSESSEE S AR HAS FILED A LETTER DATED 8.11.2016 REGARDING REMOVAL OF DEFECT ATTACHING THEREWITH A REQUEST FOR CONDONATION OF DELAY OF 605 DAYS WHICH WAS PLACED ON RECORD. FOR THE SAKE OF CLARITY, I AM REP RODUCING THE CONTENTS OF THE APPLICATION FOR CONDONATION OF DELA Y AS UNDER:- SUB: - PRAYER FOR CONDONATION OF DELAY IN FILING O F APPEAL IN THE CASE OF SHE RAM KUMAR MALHOTRA FOR A. Y 2005-06 IN ITA NO. 2082/DEL/2016 U/S 143 (3) OF INCOME TAX ACT, 1961. IT IS MOST RESPECTFULLY SUBMITTED THAT ASSESSEE WHO IS AGED 73 YEARS APPROX. AND A RETIRED GOVERNMENT SERVANT PREFERRED AN APPEAL IN THE AFORESAID CASE O N 18-04-2016 WHICH IS DELAYED BY 605 DAYS, REASON FOR WHICH IS AS UNDER: - 4 THE ASSESSMENT IN THE ABOVE SAID CASE WAS COMPLETED U/S. 143(3) AT AN INCOME OF RS. 5,45,476/ - AGAINST THE DECLARED INCOME OF RS. 1,12,936/- VIDE ORDER DATED 31.12.2007. THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND VIDE ORDER DATED 21.5.2014, L D. CIT(A) GRANTED PART RELIEF TO THE ASSESSEE AND SUSTAINED ADDITION OF RS. 3,58,910-/. LD. AO ON REC EIPT OF THE ORDER OF LD. CIT(A) INITIATED PENALTY PROCEE DINGS AND LEVIED MAXIMUM PENALTY AMOUNTING TO RS. 3,18,141/- VIDE HIS ORDER DATED 29.3.2016. AGGRIEV ED WITH THE SAID ORDER, ASSESSEE IN ORDER TO FILE APPE AL AGAINST THE PENALTY ORDER, APPROACHED DR. RAKESH GUPOTA AND ON BEING ASKED TO GIVE STATUS OF QUANTUM , IT CAME TO NOTICE OF THE ASSESSEE THAT NO APPEAL WA S FILED AGAINST THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY, ON BEING ADVISED, ASSESSEE FILED APPEA L AGAINST ORDER OF LD. CIT(A) BEFORE HONBLE INCOME T AX APPELLATE TRIBUNAL ON 18.4.2016 WHICH RESULTED IN T HE DELAY OF 605 DAYS. APPEAL WAS ALSO FILED AGAINST TH E SAID PENALTY ORDER BEFORE LD. CIT(A) ON 8.4.2016, WHICH IS PENDING FOR DISPOSAL. IT IS SUBMITTED WITH UTMOST RESPECT THAT THE DIFFIC ULTIES AT PERSONAL END AND THE CRITICAL CIRCUMSTANCES FACE D 5 BY THE ASSESSEE AS EXPLAINED BELOW CAUSED THE DELAY IN FILING THE APPEAL. 1) DELAY WAS DUE TO THE HEALTH CONDITION OF THE ASSESSEE'S WIFE SMT. PROMILA MALHOTRA WHO HAS BEEN SUFFERING THROUGH CRITICAL CONDITIONS FOR LAST TWO YEARS AND WAS OFTEN ADMITTED IN HOSPITAL FOR HER TREATMEN T. THE MEDICAL REPORTS AND VARIOUS EXAMINATION REPORTS FOR THE PERIOD STARTING FROM JUNE 2014 TO MARCH 201 6 ARE ATTACHED HEREWITH. (REFER PAGES 1 TO 75) 2) PRIOR TO HIS WIFE'S MEDICAL CONDITION, ASSESSEE HAD BEEN DEALING WITH THE MARITAL CONFLICT OF HIS DAUGH TER MRS. POOJA ANAND WHICH HAS BEEN IN LITIGATION SINCE 2013, THE EVIDENCE OF WHICH IN FORM OF THE APPLICAT ION ULS 12 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENC E ACT 2005 IN THE COURT OF HON'BLE ADDL. CHIEF METROPOLITAN MAGISTRATE, SAKET COURT AND APPLICATIO N FOR MAINTENANCE FILED IN THE COURT OF THE PRINCIPAL JUDGE, SOUTH-DISTRICT, FAMILY COURTS, SAKET, NEW DELHI, WHICH WOULD SHOW THAT THE APPELLANT BEING FATHER WAS INVOLVED IN THE PROCEEDING RELATING TO MARITAL CONFLICT OF HIS DAUGHTER. (REFER PAGES 76 T O 88). 6 IN VIEW OF THE AFORESAID EVIDENCES IT IS SUBMITTED WITH UTMOST RESPECT THAT THE ASSESSEE, WHILE FIGHTING FO R THE RIGHTS OF HIS DAUGHTER FOR LAST THREE YEARS AND THE SURVIVAL OF HIS WIFE, HAS FACED SUCH DIFFICULTIES W HICH CAUSED THE DELAY AND WHICH CONSTITUTE GOOD AND SUFFICIENT REASON FOR THE DELAY. THUS, THERE IS A GOOD AND SUFFICIENT REASON FOR THE DELAY AND THEREFORE, IT IS HUMBLY PRAYED THAT THE D ELAY MAY PLEASE BE CONDONED. RELIANCE IS PLACED ON THE DECISION IN THE CASE OF M/S SHEENA EXPORTS IN ITA 6001/DE1./2013, DATE OF ORDER 15-10-2014. (ITAT, DELHI) (REFER PAGES 89 TO 103). RELIANCE IS FURTHER PLACED ON THE JUDGMENT OF COLLE CTOR, LAND ACQUISITION VS MST. KATIJI & OTHERS 167 ITR 47 1 (SC). 5. AFTER GOING THROUGH THE CONTENTIONS RAISED BY TH E ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY OF 605 DAYS, I AM OF THE CONSIDERED VIEW THAT ASSESSEE HAS NOT GIVEN ANY PLA USIBLE REASONS FOR CONDONING THE HUGE DELAY OF 605 DAYS IN THE SAID A PPLICATION. ASSESSE HAS ALSO NOT FILED ANY EVIDENCE AS PER THE AVERMENT S MADE BY THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELA Y. THEREFORE, KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE AND 7 THE CONTENTION RAISED BY THE ASSESSEE IN THE APPLIC ATION FOR CONDONATION OF DELAY, WHICH IS NOT SUPPORTED BY AN Y EVIDENCE, I AM UNABLE TO CONDONE THE HUGE DELAY OF 605 DAYS IN FIL ING THE PRESENT APPEAL. HENCE, THE APPEAL FILED BY THE ASSESSEE I S DISMISSED BEING TIME BARRED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 02/02/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES