Shri Shambhu Dayal Sharma, Delhi V. ITO, New Delhi

ITA 211/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3711 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 3
• Next Hearing Date: 30-08-2016
• Assessment Year: 1998-1999
• Appeal Filed On: 12-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: PARUL AGGARWAL
• Keywords: Period of limitation; Condonation of delay
• Section: 142(1); 147; 131

Judgement Text

1 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NOS.211, 212 213/DEL./2015 ASSESSMENT YEARS 1998-99, 1999-2000 & 2000-2001 SHRI SHAMBHU DAYAL SHARMA, 500, SAINIK VIHAR, PITAMPURA, DELHI-110034 PAN AATPS5269C VS. THE INCOME TAX OFFICER WARD - 25(1) NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : MS. PARUL AGGARWAL, C.A. FOR REVENUE : SHRI KAUSHLENDRA TIWARI, SR. D.R. DATE OF HEARING : 25.01.2018 DATE OF PRONOUNCEMENT : 0 2 .02.2018 ORDER ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CIT(A)-XXIV, NEW DELHI, DATED 29 TH DECEMBER, 2010, FOR THE A.Y. 1998-1999, 1999-2000 AND 2000-2001. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN PURS UANCE OF ITATS ORDER DATED 11 TH SEPTEMBER, 2008, A NOTICE UNDER SECTION 142(1) WAS ISSUED TO ASSESSEE REQUIRING THE ASSESSEE TO FILE DETAILS IN RESPECT O F UNEXPLAINED DEPOSIT IN HIS BANK ACCOUNTS. THE A.O. NOTED THE HISTORY OF THE ASSESSE E THAT EARLIER ASSESSMENT WAS COMPLETED UNDER SECTION 147 OF THE I.T. ACT, BY MAK ING ADDITION ON ACCOUNT OF UNEXPLAINED BANK DEPOSITS. THE APPEAL OF ASSESSEE W ERE DISMISSED BY THE LD. 2 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. CIT(A) VIDE ORDER DATED 06 TH DECEMBER, 2016. THE ASSESSEE THEN PREFERRED AN APPEAL BEFORE ITAT AND THE TRIBUNAL HAS SET ASIDE T HE ASSESSMENT ORDER AND DIRECTED THE REVENUE TO DECIDE THE ISSUE AFRESH, AF TER ALLOWING REASONABLE OPPORTUNITY TO ASSESSEE BY IMPOSING COST OF RS.5000 ON THE ASSESSEE FOR NOT FURNISHING NECESSARY EVIDENCE AT THE TIME OF ASSESS MENT. THE ASSESSEE WAS DIRECTED TO COOPERATE WITH THE A.O. AND NOT TO SEEK ADJOURNMENTS. THE MATTER WAS TAKEN-UP FOR HEARING AND INSTEAD OF COOPERATING WITH THE A.O. THE ASSESSEE SOUGHT ADJOURNMENTS. ULTIMATELY, BREAK-UP OF THE DE POSITS IN BANK ACCOUNT WAS GIVEN TO THE DEPARTMENT WHICH IS IN THE NATURE OF B ANK INTEREST, SALE OF AGRICULTURAL PRODUCE AND ADVANCE RECEIVED FROM VARIOUS PARTIES A ND TRANSFER OF AMOUNTS FROM FAMILY MEMBERS. THE ASSESSEE DID NOT PRODUCE THE DE TAILS OF CROPS CULTIVATED. NO EVIDENCE WAS FILED FOR EARNING AGRICULTURAL INCOME. THE ASSESSEE EXPLAINED THAT AGRICULTURAL PRODUCE WAS SOLD TO CERTAIN PARTIES WH O WERE SUMMONED UNDER SECTION 131 OF THE ACT, BUT NONE RESPONDED. THE A.O . THEREFORE, REJECTED THE THEORY OF EARNING OF AGRICULTURAL INCOME. AS REGARD S AMOUNTS RECEIVED FROM VARIOUS PARTIES AND FAMILY MEMBERS, THE ASSESSEE DI D NOT FILE COMPLETE DETAILS AND EVEN ADDRESSES WERE INCOMPLETE. SUMMONS WERE IS SUED TO THEM BUT THE SAME WERE RETURNED UNSERVED WITH THE REMARKS INCOMPLETE ADDRESS. NONE OF THEM RESPONDED TO THE SUMMONS. THE DETAILS OF MONEY SO R ECEIVED FROM FAMILY MEMBERS COULD NOT BE VERIFIED. THE A.O. IN THE ABSE NCE OF ANY DETAILS AND 3 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. MATERIAL ON RECORD, REJECTED THE EXPLANATION OF ASS ESSEE AND NOTED THAT ASSESSEE FILED INCOMPLETE, INCORRECT AND MISLEADING DETAILS, THEREFORE, ASSESSEE FAILED TO EXPLAIN THE UNEXPLAINED BANK DEPOSITS INCLUDING THE INTEREST AND MADE THE ADDITION IN THE ORDER PASSED UNDER SECTION 147/143( 3)/254 OF THE I.T. ACT, 1961. 3. THE LD. CIT(A) NOTED THAT DESPITE TAKING 14 ADJ OURNMENTS, ASSESSEE DID NOT PRODUCE ANY MATERIAL EVIDENCE IN S UPPORT OF HIS CONTENTION. THEREFORE, ASSESSEE DID NOT COMPLY WITH THE DIRECTI ONS OF THE TRIBUNAL TO EXPLAIN THE BANK DEPOSITS. THEREFORE, APPEALS OF THE ASSESS EE WERE DISMISSED. 4. THE OFFICE OF THE TRIBUNAL POINTED OUT THAT ALL THE APPEALS OF THE ASSESSEE ARE TIME BARRED BY 1403 DAYS. THE ASSESSEE IN COLUMN NO.9 MENTIONED 11.01.2011 AS DATE OF COMMUNICATION OF THE IMPUGNED ORDER. HOWEVER, THE APPEALS ARE FILED IN O/O. TRIBUNAL ON 10.01.2015. T HE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY IN WHICH IT IS CONFIRMED T HAT THE IMPUGNED ORDER HAVE BEEN RECEIVED ON 10.01.2011 AND THERE IS DELAY OF 1 403 DAYS IN NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITATION. IT IS EXPL AINED IN THE APPLICATION THAT APPEALS COULD NOT BE FILED DUE TO LACK OF PROPER TI MELY ADVISE BY THE EARLIER TWO COUNSELS. IT IS STATED THAT SHRI SUSHIL PRUTHI, C.A . WHO APPEARED BEFORE LD. CIT(A), HAS NOT ADVISED THE ASSESSEE TO FILE APPEAL BEFORE THE TRIBUNAL. THEREAFTER, NEW COUNSEL C.A. SANTOSH GARG WAS APPOI NTED WHO HAS ALSO DID NOT ADVISE THE ASSESSEE TO FILE APPEAL BEFORE THE TRIBU NAL IN QUANTUM PROCEEDINGS. 4 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. SHRI SANTOSH GARG EXPIRED ON 12 TH MARCH, 2013. THEREAFTER, ON RECEIPT OF PENALTY ORDER OF THE LD. CIT(A) DISMISSING THE APPEALS OF T HE ASSESSEE VIDE ORDER DATED 13 TH OCTOBER, 2014, THE PRESENT COUNSEL HAS ADVISED TO FILE APPEAL IN QUANTUM APPEALS ALSO. LEARNED COUNSEL FOR THE ASSESSEE, THE REFORE, SUBMITTED THAT DUE TO ADVISE HAS NOT BEEN GIVEN BY BOTH THE C.AS EARLIER, THE APPEALS COULD NOT BE FILED ON TIME. LEARNED COUNSEL FOR THE ASSESSEE ARGUED TH AT LEGAL ADVISE TENDERED BY THE PROFESSIONAL AND LITIGANT ACTING UPON, WOULD BE SUFFICIENT CAUSE TO SEEK CONDONATION OF DELAY AND RELIED UPON THE DECISION O F THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. DCIT INCOME TAX APPEAL NOS.493 & 508 OF 2015 AND ORDER OF ITAT, DELHI BENCH IN THE CASE OF ACIT VS. VIREET INVESTMENT (P) LTD., 165 ITD 27 (SB). 5. THE LD. D.R. ON THE OTHER HAND OPPOSED FOR THE CONDONATION OF DELAY ON THE GROUND THAT SINCE THE ASSESSEE DID NOT COMPLY WITH THE ORDER OF THE ITAT AND NO EVIDENCE WAS FURNISHED BEFORE THE AUTHO RITIES BELOW ON QUANTUM ADDITION, THEREFORE, CORRECT ADVISE WAS GIVEN BY EA RLIER COUNSELS NOT TO FILE APPEAL BEFORE THE TRIBUNAL. THEREFORE, DELAY CANNOT BE CON DONED. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT EARLIER THE A.O. CONSIDERED THE ISSUE OF UNEXPLAINED BANK DEPOSITS AND MADE THE ADDITION BEC AUSE OF SUFFICIENT EVIDENCE WAS NOT FURNISHED BEFORE HIM. THE LD. CIT(A) DISMIS SED THE APPEAL OF ASSESSEE. 5 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. THE TRIBUNAL HOWEVER, RESTORED THE MATTER TO THE FI LE OF A.O. SUBJECT TO COST AND ASSESSEE WAS DIRECTED TO COOPERATE WITH THE A.O. TH E ASSESSEE EXPLAINED BEFORE A.O. THAT BANK DEPOSITS ARE MADE, OUT OF THE SALE O F AGRICULTURAL PRODUCE AND FUNDS RECEIVED FROM VARIOUS PARTIES AND FAMILY MEMB ERS BUT THE EXPLANATION OF ASSESSEE WAS NOT SUPPORTED BY ANY RELEVANT AND COGE NT DOCUMENTS OR MATERIAL ON RECORD. THE A.O. ISSUED SUMMONS AGAINST ALL THE PAR TIES WHICH WERE REFERRED TO BY THE ASSESSEE BUT NONE APPEARED AND RESPONDED TO THE SUMMONS. THUS, THE ASSESSEE FAILED TO COMPLY WITH THE DIRECTIONS OF TH E TRIBUNAL TO ADDUCE SUFFICIENT EVIDENCE BEFORE A.O. IN SUPPORT OF THE UNEXPLAINED BANK DEPOSITS. THE LD. CIT(A), SIMILARLY NOTED THAT ASSESSEE HAS TAKEN 14 ADJOURNMENTS BEFORE HIM AND ULTIMATELY, DID NOT PRODUCE ANY MATERIAL EVIDENCE B EFORE HIM TO EXPLAIN THE BANK DEPOSITS. THE LD. CIT(A), THEREFORE, DISMISSED THE APPEAL OF ASSESSEE. THESE FACTS CLEARLY SHOW THAT ASSESSEE DID NOT HAVE ANY E VIDENCE IN SUPPORT OF ANY OF THE GROUNDS OF APPEAL EVEN IN THE SET ASIDE PROCEED INGS. THEREFORE, THE EARLIER COUNSELS OF ASSESSEE HAVE RIGHTLY NOT ADVISED THE A SSESSEE TO FILE APPEALS BEFORE THE ITAT BECAUSE THE APPEALS OF THE ASSESSEE WOULD BE WITHOUT MERITS. IT IS, THEREFORE, NOT A CASE OF IMPROPER LEGAL ADVISE TEND ERED BY THE PROFESSIONALS. THE ASSESSEE WAS AWARE OF THE FACT THAT HE HAS NO MATER IAL EVIDENCE WITH HIM TO EXPLAIN THE UNEXPLAINED BANK DEPOSITS. THEREFORE, A SSESSEE RIGHTLY DID NOT CHOOSE TO FILE APPEALS BEFORE THE TRIBUNAL WITHIN THE PERI OD OF LIMITATION. THE APPLICATION 6 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. FOR CONDONATION OF DELAY MAKES IT CLEAR THAT LATER ON WHEN PENALTY APPEALS WERE DISMISSED BY THE LD. CIT(A), ASSESSEE THOUGHT THAT WHEN NO APPEALS HAVE BEEN FILED ON QUANTUM WHICH WERE RIGHTLY NOT FILED, ASSE SSEE WOULD NOT GET ANY RELIEF IN PENALTY MATTER, THEN THE ASSESSEE FILED THESE AP PEALS BEFORE THE TRIBUNAL WITHOUT ANY SUFFICIENT CAUSE. HOWEVER, SUCH REASON IS IMPROPER AND COULD NOT BE ACCEPTED. BOTH THE JUDGMENTS RELIED UPON BY THE ASS ESSEE ARE NOT APPLICABLE TO THE CASE OF THE ASSESSEE. IT IS WELL SETTLED LAW TH AT TRIBUNAL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR DELAY IN SUBMISSI ON OF APPEALS. THE WORD SUFFICIENT CAUSE WOULD MEAN A CAUSE WHICH IS BEYOND THE CONTROL OF THE ASSESSEE . SUFFICIENT CAUSE MEANS WHICH PREVENTS A REASONABLE MAN OF ORDINARY PRUDENCE ACTING UNDER NORMAL CIRCUMSTANCES WITHOUT NEGLIGENCE OR INACTION OR WANT OF BONAFIDES. IN THE PRESENT CASE, ASSESSEE WAS AWARE OF THE FAC T THAT HE HAS NO MATERIAL EVIDENCE WITH HIM TO EXPLAI N THE UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT, DESPITE THE MATTER IS RESTORED BY THE TRIBUNAL TO THE FILE OF A.O. SUBJECT TO COST. THEREFORE, ASSESSEE NEVER WANTED T O FILE ANY APPEALS IN THE MATTER. THE ASSESSEE WAS RIGHTLY NOT ADVISED TO FILE APPEAL S BEFORE TRIBUNAL. THE ASSESSEE DID NOT ACT TO FILE APPEALS WITHIN TIME BECAUSE ALL APPEALS OF ASSESSEE WOULD BE WITHOUT MERITS. THEREFORE, THE STORY NOW SET-UP BY THE ASSESSEE WOULD NOT DISCLOSE ANY SUFFICIENT CAUSE FOR DELAY IN SUBMISSI ON OF THE APPEAL. 7 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. 7. IT WOULD BE APPROPRIATE TO REFER TO SOME OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE OF DELAY IN FILING THE APPEALS. IN THE CASE OF HIND DEVELOPMENT CORPN. V. ITO [1979 ] 118 ITR 873, THE CALCUTTA HIGH COURT HELD THAT A TRIBUN AL CAN CONDONE THE DELAY IF THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN THE SUBMISSION OF THE APPEAL. IN THE CASE OF VED ABAI ALIAS VIJAYANATABAI BABURAO PATIL V. SHANTARAM BABURAO PA TIL [2002] 253 ITR 798 (SC), WHERE IT WAS HELD THAT WHI LE EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITA TION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT FILING THE APPEAL WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETW EEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. THE COURT OBSERVED THAT WHEREAS I N THE FORMER CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPRO ACH. IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUC H A CASE DESERVES A LIBERAL APPROACH. NOW IN THE PRESENT CAS ES DELAY 8 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. IS NOT OF A FEW DAYS BUT OF 1403 DAYS. BESIDES, THERE IS ABSOLUTELY NO VALID EXPLANATION/REASON FOR THE DELA Y. IN THE CASE OF CIT V. RAM MOHAN KABRA [2002] 257 ITR 773, THE HON'BLE PUNJAB & HARYANA HIGH COURT HAS OBSERVED TH AT WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITA TION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, SU CH DELAY CAN ONLY BE CONDONED ONLY FOR SUFFICIENT AND GOOD R EASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SE TTLED PRINCIPLE OF LAW THAT PROVISIONS RELATING TO THE SP ECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIG OR AND EFFECTIVE CONSEQUENCES. IN THIS CASE, DELAY FOR FIL ING THE APPEAL LATE FOR ONLY A FEW DAYS WAS NOT CONDONED. I N THE CASE OF ASSTT.CIT V. TAGGAS INDUSTRIES DEVELOPMENT LTD. [2002] 80 ITD 21(CAL.), TRIBUNAL, CALCUTTA BENCH, CALCUTTA , DID NOT CONDONE THE DELAY FOR FILING THE APPEAL LATE BY 13 DAYS BECAUSE THE DELAY WAS NOT DUE TO SUFFICIENT CAUSE. THUS, RELYING ON THE ABOVE JUDGMENTS, I HOLD THAT ASSESSE E FAILED TO EXPLAIN THAT DELAY IN FILING THE APPEALS WAS DUE TO SUFFICIENT CAUSE. 9 ITA.NOS.211, 212 & 213/DEL./2015 SHRI SHAMBHU DAYAL SHARMA, DELHI. 8. CONSIDERING THE ABOVE DISCUSSION, THE APPLICATI ON FOR CONDONATION OF DELAY IS REJECTED. I HOLD ALL THE AP PEALS OF THE ASSESSEE ARE TIME BARRED AND ARE ACCORDINGLY, DISMISSED IN LIMINE. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 02 ND FEBRUARY, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. //BY ORDER// ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.