Shri Ramesh L. Shah, Ahmedabad V. The DY.CIT., Circle-9, Ahmedabad

ITA 2146/AHD/2004

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0268 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-09-2009
• Assessment Year: 1997-1998
• Appeal Filed On: 28-06-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MATHIVANAN
• Keywords: Reasonable cause
• Section: 143(3); 14A; 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI R.V.EASWAR, VICE-PRESIDENT AND D.C. AGRAWAL, ACCOUNTANT MEMBER) ITA NO.2146 AND 2147/AHD/2004 [ASSTT.YEAR : 1997-1998 AND 1998-1999] SHRI RAMESH L. SHAH 2, KRISHNA APARTMENT AMBAWADI, AHMEDABAD. VS. DCIT, CIR.9 AHMEDABAD. ASSESSEE BY : SHRI ASEEM THAKKAR REVENUE BY : SHRI M.MATHIVANAN O R D E R PER R.V.EASWAR, VICE-PRESIDENT : THESE TWO APPEALS FILED BY THE ASSESSEE PERTAIN TO THE ASSESSMENT YEARS 1997-98 AN D 1998-99. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE FINANCE BUSINESS. 2. BOTH THE APPEALS ARISE OUT OF ASSESSMENTS MADE U NDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT AND THE ASSESSMENT ORDERS HAVE BEEN PASSED ON THE SAME DAY VIZ. 28-3-2002. THE OR DERS OF THE CIT(A) HAVE ALSO BEEN PASSED ON THE SAME DAY VIZ. 17-11-2003. THE APPEALS BEFORE THE TRIBUNAL OUGHT TO HAVE BEEN FILED ON BEFORE 15-2-20 04, BUT THEY WERE FILED ON 28-6-2004, THUS ENTAILING A DELAY OF 134 DAYS. IN T HE APPLICATION FOR CONDONATION OF THE DELAY ACCOMPANIED BY AN AFFIDAVI T IT HAS BEEN STATED THAT THE APPELLANT WAS TAKEN INTO JUDICIAL CUSTODY ON 9-10-2 002 AND WAS RELEASED ON BAIL ON 14-4-2004 AFTER NEARLY SIXTEEN MONTHS AND A S SOON AS IT WAS POSSIBLE TO DO SO, AFTER RELEASE ON BAIL, THE APPELLANT HAS FIL ED THE APPEALS. IT IS THEREFORE PLEADED THAT THERE IS SUFFICIENT CAUSE FOR THE DELA Y. OUR ATTENTION WAS DRAWN TO THE ORDER DATED 28-8-2009 PASSED BY THE TRIBUNAL IN ITA NOS.3134 TO 3136/AHD/2004 IN THE CASE OF HEMENDRA L. SHAH, THE ASSESSEES BROTHER, IN WHOSE CASE ALSO THERE WAS A DELAY WHICH WAS CONDONE D BY THE TRIBUNAL. A COPY OF THE ORDER HAS BEEN FILED BEFORE US FROM WHI CH WE FIND THAT THE ASSESSEES BROTHER HAD ALSO BEEN TAKEN INTO CUSTODY AND RELEASED ON BAIL ON 14- PAGE - 2 ITA NO.2146 AND 2147/AHD/2004 -2- 4-2004. THE TRIBUNAL HAS OBSERVED THAT THE ASSESSE E HAD TO ARRANGE FOR FUNDS TO PAY THE APPEAL FEE AFTER HE WAS RELEASED ON BAIL AND ULTIMATELY THE TRIBUNAL HAS HELD THAT THERE WAS REASONABLE CAUSE FOR THE DE LAY IN FILING THE APPEAL. SINCE THE FACTS OF THE ASSESSEES CASE ARE IDENTICA L WITH THOSE OF HIS BROTHERS CASE, RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE CONDONE THE DELAY AND ADMIT THE APPEALS. 3. SO FAR AS THE MERITS ARE CONCERNED, IN THE ASSES SMENT YEAR 1997-98 THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT AND HAS ALSO DISPUTED THE ADDITION OF RS.11 LAKHS FOR C ASH CREDITS UNDER SECTION 68 OF THE ACT. THE DISALLOWANCE OF THE INTEREST ON THE CASH CREDIT HAS ALSO BEEN CHALLENGED. 4. IN THE ASSESSMENT YEAR 1998-99, BESIDES CHALLENG ING THE REASSESSMENT UNDER SECTION 147, THE ASSESSEE HAS ALSO DISPUTED T HE DISALLOWANCE OF THE EXPENSES OF RS.28,61,177/- BY INVOKING SECTION 14A AND THE DISALLOWANCE OF THE INTEREST ON THE CASH CREDITS, THE CLAIM UNDER S ECTION 80L AND SECTION 88 OF THE ACT ETC. A PERUSAL OF THE APPELLATE ORDERS P ASSED ON 17-11-2003 SHOWS THAT THE ASSESSEE WAS UNABLE TO ADDUCE ANY EVIDENCE IN SUPPORT OF HIS GROUNDS PRESUMABLY BECAUSE OF THE FACT THAT HE WAS BY THEN IN JUDICIAL CUSTODY. THE ASSESSMENT ORDERS ALSO SHOW THAT THE ASSESSEE WAS U NABLE TO FURNISH EVIDENCE IN SUPPORT OF THE CASH CREDITS IN VIEW OF THE CURFEW A ND DISTURBANCES IN THE CITY AT THE RELEVANT TIME. TAKING NOTE OF THE IDENTICAL CI RCUMSTANCES, THE TRIBUNAL HAS IN THE CASE OF THE ASSESSEES BROTHER (CITED SUPRA) , HELD THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF THE CIT(A) WITH THE DIRECTI ONS TO HIM TO ADMIT THE EVIDENCE FILED BY THE ASSESSEE AND TO DECIDE THE IS SUE AFTER PROPER VERIFICATION AS PER LAW AND AFTER ALLOWING REASONABLE OPPORTUNIT Y OF HEARING TO BOTH THE PARTIES. THE FACTS AND CIRCUMSTANCES BEING SIMILA R IN THE ASSESSEES CASE, WE ARE IN RESPECTFUL AGREEMENT WITH THE ORDER PASSED B Y THE TRIBUNAL IN THE CASE OF THE ASSESSEES BROTHER. ACCORDINGLY, WE RESTORE TH E APPEALS TO THE FILE OF THE PAGE - 3 ITA NO.2146 AND 2147/AHD/2004 -3- CIT(A) WITH THE SAME DIRECTIONS AND ALLOW THE APPEA LS OF THE ASSESSEE FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 16 TH OCTOBER, 2009. SD/- SD/- (D.C. AGRAWAL) ACCOUNTANT MEMBER (R.V.EASWAR) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 16-10-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD