BHARAT J GUPTA, MUMBAI V. ITO 25(3)(1), MUMBAI

ITA 3422/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8782 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-10-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 16-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALH BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.3422/MUM/2016 ( / ASSESSMENT YEAR: 2004-05) BHARAT J. GUPTA 1/1, CHHABARIA NAGAR, OPP. TELEPHONE EXCHANGE, KANDIVALI WEST, MUMBAI - 400067 / VS. ITO 25(3)(1) MUMBAI ./ ./ PAN/GIR NO. AGFPG1196G ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 04.01.2017 /DATE OF PRONOUNCEMENT: 20.01.2017 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 18.03.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-35, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2004-05. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE PRESENT APPEAL FILED BY THE APPELLANT IS AGAINST THE CIT(A) 35 / ITO 25(3)(1)/ITA. 338/10-11 DATED ASSESSEE BY: SHRI JAYESH D. KHAKHAR DEPARTMENT BY: SHRI M. C. OMI NINGSHEN ITA NO.3422.M.16 A.Y. 2004-05 2 06.03.2013 FOR THE PERIOD 01.04.2003 TO 31.03.2004 PASSED BY THE CIT(A) XXXV, MUMBAI. 2. THE CIT(A) HAS ERRED IN NOT GIVING REASONABLE, PROPER AND SUFFICIENT OPPORTUNITIES TO THE APPELLANT FOR EXPLAINING AND ADDING THE INCOME UNDER THE VARIOUS HEADS. 3. THE CIT(A) HAS NOT GIVEN REASONABLE SUFFICIENT OPPORTUNITY OF HEARING TO THE APPELLANT BEFORE MAKING HUGE ADDITION UNDER VARIOUS HEADS. 4. THE CIT(A) HAS NOT JUSTIFIED IN ESTIMATION OF HOUSE PROPERTY INCOME OF RS.50,400/- AS NOTIONAL RENT, SINCE THE APPELLANTS SELF OCCUPIED PROPERTY FLAT AT KANDIVALI WHOSE NOTIONAL RENT WAS CONSIDERED BY THE A.O. AND THE CIT(A) WITHOUT CONSIDERING THE FACT OF CASE WHERE THE NOTIONAL INCOME OF SOP OF THE APPELLANT SHALL BE NIL. 5. THE CIT(A) HAS NOT JUSTIFIED IN TREATING THE ENTIRE SALE PROCEEDS OF SHARES OF RS.6,59,400/- AS INCOME FROM UNDISCLOSED SOURCE FOR WHICH THE WRITTEN SUBMISSION AND EXPLANATION WERE SUBMITTED BEFORE THE A.O. AND CIT(A) AT THE TIME OF HEARING, WHICH SHOWS AND REFLECTS IN THE BOOKS OF ACCOUNT THAT THE APPELLANT HAD RECEIVED THE ACTUAL CONTRACT NOTES FROM THE BROKER AND ALL THE TRANSACTIONS WERE DEALT WITH CHEQUES ONLY. 6. THE CIT(A) NOT JUSTIFIED IN ESTIMATION OF EXPENSES @ 5% ON RS.6,59,400/- (AMOUNTING TO RS.32,970/-) U/S.69C OF THE ACT 1961 SINCE THE SAID ADDITION WAS NOT ACCEPTED BY THE APPELLANT AS IT WAS WRONGFULLY ADDED IN THE HANDS OF THE INCOME OF THE APPELLANT. 7. THE CIT(A) NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF UNPROVED LOANS OF RS.5,34,452/-, AS THE SAME LOANS WERE ACCEPTED AND ALLOWED IN THE PREVIOUS ASSESSMENT YEAR BY THE A.O. AND ALL THE LOANS CONFIRMATIONS WITH RELEVANT DOCUMENTS TO SHOW THE GENUINENESS OF THE TRANSACTIONS I.E. ALL THE LOANS WERE OPENING BALANCE OF CURRENT FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR ONLY. ITA NO.3422.M.16 A.Y. 2004-05 3 8. THE CIT(A) NOT JUSTIFIED IN LEVYING THE INTEREST U/S.234A, 234B AND 234C OF THE I.T. ACT, 1961. 9. THE CIT(A) NOT JUSTIFIED IN LEVIED THE PENALTY U/S.271(1)(C) OF THE I.TAX ACT 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 14.06.2005 DECLARING TOTAL INCOME TO THE TUNE OF RS.93,838/- FOR THE A.Y.2004-05. IN THIS CASE THE INFORMATION WAS RECEIVED ON ACCOUNT OF BENEFICIARIES OF MAHASAGAR SECURITIES LTD. (NOW ALAG SECURITIES PVT. LTD.) GROUP SHARE SCAM, VIDE DDIT (INV.) UNIT-1(V), MUMBAIS LETTER DATED 26.03.2010. ALL THE INFORMATION WAS RECEIVED, THEREAFTER THE CASE OF THE ASSESSEE WAS REOPENED BY RECORDING THE REASONS AND TAKING THE NECESSARY APPROVALS. NOTICE U/S.148 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) DATED 31.03.2010 WAS ISSUED AND DULY SERVED UPON THE ASSESSEE. NOTICE U/S.142(1) OF THE ACT WAS ALSO ISSUED ON 03.08.2010 AND DULY SERVED UPON THE ASSESSEE. THEREFORE, THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.13,57,400/-. FEELING AGGRIEVED, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER AND DISMISSED THE APPEAL. THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE. 4. THE PRESENT APPEAL HAS BEEN FILED DELAYED FOR 2 YEARS AND 11 MONTHS. AT THE VERY OUTSET THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ARGUED THAT THE ASSESSEE FILED THE PRESENT APPEAL DELAYED WHICH IS NOT EXPLAINED PROPERLY, THEREFORE THE APPEAL IS NOT LIABLE TO BE ENTERTAINED. ON THE OTHER HAND THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE DELAY IS NOT WILLFUL, THEREFORE DELAY IS LIABLE TO BE CONDONED. THE APPLICATION OF ITA NO.3422.M.16 A.Y. 2004-05 4 CONDONATION IS SUPPORTED WITH THE AFFIDAVIT, IN WHICH THE REASONS OF DELAY HAVE BEEN RECORDED. WITH DUE CONSIDERATION OF THE ARGUMENT ADVANCED BY THE LEARNED REPRESENTATIVE OF THE PARTIES AND GOING THROUGH THE RECORD CAREFULLY, IT CAME IN TO NOTICE THAT THE ASSESSEE ONLY TOOK THE PLEA IN HIS APPLICATION FOR CONDONATION TO THE EFFECT THAT HE FILED APPEAL BEFORE CIT(A) TO WAVE THE PENALTY U/S.271(1)(C) OF THE ACT AND AWAITED FOR THE APPELLATE ORDER IN HIS FAVOUR AND THE COPY OF WHICH WAS RECEIVED ON 15.04.2016, THEREFORE THE DELAY OCCURRED WHICH IS LIABLE TO BE CONDONED. THE PENALTY PROCEEDING IS A SEPARATE PROCEEDING WHICH HAS NO EFFECT UPON THE PRESENT CASE IN WHICH THE QUANTUM PROCEEDING HAS BEEN CHALLENGED. EVEN BOTH THE APPEAL CAN RUN CONCURRENTLY. IT IS NOT UNDERSTANDABLE AS TO WHY PASSING THE ORDER IN THE PENALTY PROCEEDING COULD BE THE REASON FOR CONDONATION OF DELAY IN FILING THE APPEAL AGAINST THE ASSESSMENT ORDER. DELAY SHOULD BE PROPERLY EXPLAINED. NO OTHER REASONS HAVE BEEN MENTIONED IN THE APPLICATIONS. IN THE INSTANT CASE THE DELAY OF 2 YEARS AND 11 MONTHS WHICH IS NOT PROPERLY EXPLAINED WHEREAS EACH DAYS DELAY IS REQUIRED TO BE EXPLAINED. FINDING NO PLAUSIBLE EXPLANATION TO CONDONE THE DELAY, WE ARE OF THE VIEW THAT THE PRESENT APPEAL IS BARRED BY LIMITATION THEREFORE THE SAME IS HEREBY ORDERED TO BE DISMISSED. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2017 . SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 20 TH JANUARY, 2017 MP ITA NO.3422.M.16 A.Y. 2004-05 5 / 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, MUMBAI