TEJRAJ D. KOTHARI, MUMBAI V. DCIT 24(2), MUMBAI

ITA 3257/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1098 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Keywords: Period of limitation; Corroborative evidences; Time period of passing order; Condonation of delay
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 3257 / MUM/ 201 4 ( / ASSESSMENT YEAR: 2007 - 08 ) SHRI TEJRAJ D KOTHARI, SHOP NO. 3, SHIV BAUG, DAFTARY ROAD, MALAD EAST, MUMBAI - 400097 VS. THE DCIT 24(2), BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI - 400051 ./ ./ PAN/GIR NO. : AABPK 8519 P ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : NONE /REVENUE BY : MS. ARJU GARO DIA (DR) / DATE OF HEARING : 05/04 /2017 / DATE OF PRONOUNCEMENT : 28 /04 /2017 / O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 26/06/2012 PASSED BY THE LD. CIT (A), 34 , MUMBA I PERTAI NING TO THE ASSESSMENT YEAR 2007 - 08, WHEREBY THE LD . CIT (A) DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3 ) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT) . 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE A TRADER AND RETAILER IN JEWELLERY BUSINESS FILED HIS RETUR N OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARING THE TOTAL INCOME OF RS. 10,20,510/ - . THE RETURN WAS PROCESSED AND IN RESPONSE TO THE NOTICES ISSUED U/S 143(2) AND 142(1) THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND PRESEN TED THE CASE OF THE ASSESSEE. THE 2 ITA NO. 3257/MUM/2014 ASSESSMENT YEAR: 2007 - 08 AO AFTER VERIFICATION OF THE DETAILS FILED BY THE ASSESSEE COMPUTED THE TOTAL INCOME OF THE ASSESSEE AT RS. 14,28,570/ - (ROUNDED OFF). 3. AGGRIEVED BY THE ASSESSMENT ORDER THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) IN FIRST APPEAL. THE LD. CIT(A) AFTER HEARING THE ASSESSEE DISMISSED THE APPEAL AND UPHELD THE FINDINGS OF THE AO. STILL A GGRIEVED , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING THE ADDITION MADE BY THE ASSESSING OFFICER TOWARDS UNPROVED CREDITORS RS. 1,61,654/ - . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TOWARDS 50% OF COST OF CONSTRUCTION OF THE HOUSE PROPERTY ON ACCOUNT OF LACK OF EVIDENCE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TOWARDS CHAPTER VI - A DEDUCTION OF RS. 81,967/ - ON ACCOUNT OF ABSENCE OF SUPPORTING EVIDENCE. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND. 4. THIS APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME ON 2.7.2015 , HOWE VER, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE SAID DATE . SINCE THEN THE ASSESSEE HAS SOUGHT ADJOURNMENTS FOR MORE THAN FIVE TIMES. ON THE LAST DATE OF HEARING, I.E., ON 23. 0 2.17 THE CASE WAS AGAIN ADJOURNED AT THE WRITTEN REQUEST OF THE ASSESSEE AND POSTED THE CASE FOR HEARING FOR 05.04.17. ON 05.04.17, AGAIN AN APPLICATION FOR ADJOURNMENT WAS RECEIVED THROUGH SOME PERSON WHO WAS EVEN NOT AUTHORIZED BY THE ASSESSEE TO APPEAR BEFORE THE TRIBUNAL , STATING THEREIN THAT THE AUTHORIZED REPRESENTATIVE IS OU T OF STATION . IN VIEW OF THE CONDUCT OF THE ASSESSEE, WE REJECTED THE APPLICATION FOR FURTHER ADJOURNMENT 3 ITA NO. 3257/MUM/2014 ASSESSMENT YEAR: 2007 - 08 AND DECIDED TO PROCEED EX - PARTE AGAINST THE ASSESSEE AND DISPOSE OF THE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, AFTER HEARING THE DEPAR TMENTAL REPRESENTATIVE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE AT THE OUTSET POINTED OUT THAT THE THERE IS A N INORDINATE DELAY OF MORE THAN 600 DAYS IN FILING TH E PRESENT APPEAL AND THE REASONS FOR DELAY FILED BY THE ASSESSEE IS NOT SUFFICIENT TO CONDONE THE DELAY , THEREFORE, THE APPEAL IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED. 6. WE HAVE NOTICED THAT THIS APPEAL HAS ALREADY BEEN DISMISSED BY THE SMC BENCH OF THE TRIBUNAL VIDE ORDER DATED 05.10.2015 ON THE GROUND THAT THE APPEAL IS BARRED BY LIMI TATION. LATER ON THE CASE WAS RECALLED IN MA 289/M/15 AND THE ASSESSEE FILED APPLICATION DATED 27.12.2016 FOR CONDONATION OF DELAY ALONG WITH THE COPY OF AFFIDAVIT SWORN BY THE ASSESSEE. SUBSEQUENTLY, VIDE APPLICATION DATED 14.02.17 THE ASSESSEE SUBMITTED AN AFFIDAVIT SWORN BY MR. MANISH OZA , THE THEN AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 7. IN THE SAID AFFIDAVIT, MR. MANISH OZA HAS STATED THAT THE ASSESSEE HAD HANDED OVER THE ORIGINAL DOCUMENTS TO HIM FOR FILING APPEAL; THE PAPERS RECEIVED WERE MIXED UP WITH OTHER PAPERS IN HIS OFFICE DUE TO WHICH THE PRESENT APPEAL COULD NOT BE PRESENTED BEFORE THE TRIBUNAL WITHIN LIMITATION PERIOD. 8. SUB - SECTION 5 OF SECTION 253 OF THE INCOME TAX ACT PROVIDES THAT THE TRIBUNAL MAY ADMIT APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS - OBJECTION OF RESPONDENT AFTER EXPIRY OF RELEVANT PERIOD OF LIMITATION REFERRED TO IN SUB - SECTION 3 AND 4 SECTION 253, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. SO, SUFFICIENT CAUSE IS A CONDITION PRECEDENT FOR CONDONING THE DELAY. AS PER THE SETTLED LAW THE QUESTION WHETHER 4 ITA NO. 3257/MUM/2014 ASSESSMENT YEAR: 2007 - 08 THERE EXIST S A SUFFICIENT CAUSES FOR CONDONING THE DELAY OR NOT IS ORDINARILY A QUESTION OF FACT. 9. THE HONBLE SUPREME COURT HAS TIME AND AGAIN HELD THAT WHEN T HE DELAY IS NOT PROPERLY , SATISFACTORILY AND CONVINCINGLY EXPLAINED, THE COURT CANNOT CONDONE THE DELAY ON SYMPATHETIC GROUNDS ALONE. IN THE PRESENT CASE, THE FACTS AND CIRCUMSTANCES DO NOT SUGGEST THAT THE DELAY HAS NOT BEEN CAUSED DUE TO INACTION AND NEG LIGENCE ON THE PART OF THE ASSESSEE . THE ASSESSEE WAS WELL AWARE ABOUT THE DELAY IN FILING THE APPEAL DESPITE THAT APPLICATION FOR CONDONATION WAS NOT MOVED ALONG WITH THE APPEAL MEMO. IT WAS MOVED WHEN THE APPEAL OF THE ASSESSEE WAS DISMISSED AS NOT MAINT AINABLE BEING BARRED BY LIMITATION. MOREOVER, THE AFFIDAVIT OF MR . MANISH OZA WAS PRESENTED BEFORE US ON 14.02.2017. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT REASONS MENTIONED IN THE APPLICATION AND THE AFFIDAVITS ARE NOT PLAUSIBLE THEREFORE, THE ASSE SSEE HAS FAILED TO PROVE SUFFICIENT REASONS WHICH PREVENTED HIM FROM PRESENTING THE APPEAL WITHIN LIMITATION PERIOD . H ENCE, CONSIDERING THE FACTS AND CIRCUMSTANCES, WE DO NOT FIND SUFFICIENT GROUND TO CONDONE THE INORDINATE DELAY OF 620 DAYS IN FILING THE PRESENT APPEAL. WE, THEREFORE, DISMISS THE APPLICATION FOR CONDONATION OF DELAY AND HOLD THAT THE PRESENT APPEAL IS NOT MAINTAINABLE BEING BARRED BY LIMITATION. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 2008 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH APRIL , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 28 / 0 4 / 2017 ALINDRA, PS 5 ITA NO. 3257/MUM/2014 ASSESSMENT YEAR: 2007 - 08 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI