C. Ramaiah, V. ITO,

ITA 354/BANG/2013

• Counselvise Citation: 35421114 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P DHIVAHAR JT
• Assessee Lawyers: S GANESH RAO
• Keywords: Recovery proceedings; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.354/BANG/2013 ASSESSMENT YEAR : 2006-07 SHRI C. RAMAIAH, 386, 3 RD MAIN ROAD, C.K. ATCHKUT, BANGALORE 560 085. PAN: ADPBR 1238H VS. THE INCOME TAX OFFICER, WARD 1(4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S. GANESH RAO, ADVOCATE RESPONDENT BY : SHRI P. DHIVAHAR, JT. CIT(DR) DATE OF HEARING : 29.12.2014 DATE OF PRONOUNCEMENT : 23.01.2015 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 16.11.2009 OF THE CIT(APPEALS)-I, BANGALORE RELATI NG TO ASSESSMENT YEAR 2006-07. ITA NO.354/BANG/2013 PAGE 2 OF 7 2. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIES ON T HE BUSINESS OF VEGETABLE VENDING. FOR THE A.Y. 2006-07, RETURN OF INCOME WAS FILED DECLARING INCOME OF RS.2,05,593. ASSESSMENT WAS CO MPLETED DETERMINING TOTAL INCOME OF RS.13,30,923. A SUM OF RS. 6,50,00 0 WHICH WAS CLAIMED BY THE ASSESSEE TO BE AGRICULTURAL INCOME AND THEREFOR E NOT TAXABLE WAS TREATED AS INCOME FROM OTHER SOURCES AND ADDED TO T HE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME, A S THE ASSESSEE FAILED TO PROVE THAT THE SUM OF RS.6,50,000 WAS INCOME DERIVE D FROM CARRYING ON OF AGRICULTURAL OPERATIONS. 3. ANOTHER ADDITION OF UNEXPLAINED BALANCES IN THE CAPITAL ACCOUNT AND DISALLOWANCE OF EXPENSES OF RS.2,50,000 AND RS.2,25 ,330 WAS ALSO MADE BY THE AO. 4. AGGRIEVED BY THE AFORESAID ADDITIONS IN THE ASS ESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE C IT(A) DELETED THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED BALANCES IN THE CAPITAL ACCOUNT OF RS.2,50,000 AND SUSTAINED THE OTHER TWO ADDITIONS M ADE BY THE AO. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 6. THERE IS A DELAY OF ABOUT 1144 DAYS IN FILING T HIS APPEAL BY THE ASSESSEE. THE ASSESSEE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY WHEREIN IT IS SUBMITTED THAT THE IMPUGNED ORDER OF CIT(A) DATED 16.11.2009 ITA NO.354/BANG/2013 PAGE 3 OF 7 WAS RECEIVED BY THE ASSESSEE'S AR, S. GANESH RAO, ADVOCATE. HE HAD SENT THE ORDER TO THE ASSESSEE'S BUSINESS PREMISES ADDRESS. SINCE THE ASSESSEE HAD CLOSED DOWN THE BUSINESS AND WAS ALSO INVOLVED WITH CIVIL LITIGATION WITH HIS BROTHERS OVER SHARE OF AGRICULT URAL LANDS, THE ASSESSEE DID NOT RECEIVE THE ORDER OF CIT(A). IT IS FURTHER S TATED IN THE AFFIDAVIT THAT THE ASSESSEE CAME TO KNOW ABOUT THE CIT(A)'S ORDER ONLY WHEN THE DEPARTMENT STARTED RECOVERY PROCEEDINGS. IT HAS FU RTHER BEEN STATED THAT THE ASSESSEE APPLIED TO THE CIT(A) FOR ISSUE OF DUP LICATE ORDER ON 24.1.2013. AFTER OBTAINING A CERTIFIED COPY OF THE ORDER, THE APPEAL WAS IMMEDIATELY FILED ON 18.3.2013. THE ASSESSEE HAS T HEREFORE PRAYED THAT DELAY IN FILING THE APPEAL MAY BE CONDONED AND APPE AL BE DECIDED ON MERITS. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACTS STATED IN THE AFFIDAVIT FOR CONDONATION OF DELAY. 8. ON THE OTHER HAND, THE LD. DR FILED BEFORE US A PAPER BOOK WHICH CONTAINS A LETTER DATED 17.8.2012 BY THE ASSESSEE T O THE TAX RECOVERY OFFICER (TRO). THE LD. DR POINTED OUT THAT AFTER T HE ORDER OF CIT(A), THE AO PASSED ORDER DATED 23.11.2009 GIVING EFFECT TO ORDE R OF CIT(A). CONSEQUENT TO THE SAME, TAXES BECAME DUE AND PAYABL E BY THE ASSESSEE. THE TRO INITIATED PROCEEDINGS FOR RECOVERY OF TAXES DUE AND PAYABLE BY THE ASSESSEE BY ISSUE OF NOTICE OF DEMAND TO THE AS SESSEE DATED 17.11.2011. SUMMONS TO THE ASSESSEE WAS ALSO ISSUE D ON 14.12.2011. ITA NO.354/BANG/2013 PAGE 4 OF 7 ANOTHER LETTER DATED 12.6.12 WAS ALSO ISSUED BY THE TRO TO THE ASSESSEE. ON 17.8.12, THE ASSESSEE FILED A LETTER BEFORE THE TRO IN WHICH HE HAS MADE A REFERENCE TO THE ORDER OF AO DATED 23.11.200 9 GIVING EFFECT TO THE ORDER OF CIT(A). THE ASSESSEE IN THE SAID LETTER DISPUTED THE QUANTUM OF OUTSTANDING PAYMENT AND ALSO PRAYED FOR PAYMENT OF OUTSTANDING DEMAND IN INSTALLMENTS. THE LD. DR THEREFORE SUBMITTED TH AT THE ASSESSEE WAS FULLY AWARE OF THE IMPUGNED ORDER OF CIT(A). ACCORDING T O HIM, AT LEAST FROM 17.8.12, THE ASSESSEE SHOULD BE DEEMED TO HAVE KNOW LEDGE OF THE IMPUGNED ORDER OF CIT(A). IT WAS HIS SUBMISSION TH AT THE AVERMENTS IN THE AFFIDAVIT FOR CONDONATION OF DELAY, THAT ASSESSEE C AME TO KNOW ABOUT THE ORDER OF CIT(A) AFTER PROCEEDINGS FOR RECOVERY OF O UTSTANDING DUES WERE INITIATED, IS THEREFORE NOT CORRECT. THE LD. DR PO INTED OUT THAT, AT BEST, FROM 17.8.2012 THE ASSESSEE HAD KNOWLEDGE OF THE IMPUGNE D ORDER OF CIT(A), BUT HAS CHOSEN TO MAKE AN APPLICATION DATED 21.1.20 13 TO THE CIT(A) FOR A COPY OF THE IMPUGNED ORDER ON 24.1.2013. THE ASSES SEE HAS FILED THE APPEAL BEFORE THE TRIBUNAL ONLY ON 18.3.2013. ACCO RDING TO HIM, THEREFORE, DELAY IN FILING THE APPEAL HAS NOT BEEN PROPERLY EX PLAINED BY THE ASSESSEE AS OWING TO REASONABLE CAUSE. 9. WHEN THE LD. DR BROUGHT TO OUR NOTICE THE AFORE SAID FACTS AND CIRCUMSTANCES, THE LD. COUNSEL FOR THE ASSESSEE FIL ED ANOTHER AFFIDAVIT IN WHICH HE HAS TAKEN THE PLEA HE HAS NOT RECEIVED THE IMPUGNED ORDER OF CIT(A) PRIOR TO APPROACHING THE CIT(A) FOR ISSUE OF DUPLICATE ORDER. HE ALSO SUBMITTED THAT ASSESSEE WAS TAKING TREATMENT F ROM JAYADEVA HOSPITAL ITA NO.354/BANG/2013 PAGE 5 OF 7 RIGHT FROM 2009-10 TILL 2013. IN THE AFFIDAVIT, TH E ASSESSEE HAS ADMITTED HAVING GIVEN A LETTER DATED 17.8.2012 PRAYING FOR G RANT OF INSTALLMENTS TO PAY THE OUTSTANDING DEMAND. A COPY OF THE MEDICAL CERTIFICATE OF JAYADEVA HOSPITAL HAS BEEN FILED BEFORE US. MEDICAL RECORDS FILED BY THE ASSESSEE SHOWS THAT ASSESSEE WAS ADMITTED IN JAYADEVA HOSPIT AL ON 7.12.2010 AND DISCHARGED ON 9.12.2010 FOR SOME HEART RELATED AILM ENT. ANOTHER MEDICAL RECORD SHOWS THAT ASSESSEE WAS ADMITTED TO JAYADEVA HOSPITAL ON 20.10.12 AND DISCHARGED ON 25.10.12. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND T HE MATERIAL ON RECORD. IT IS CLEAR FROM THE MATERIAL ON RECORD TH AT ASSESSEE HAD KNOWLEDGE ABOUT THE IMPUGNED ORDER OF CIT(A) AT LEAST FROM 17 .8.2012, ON WHICH DATE HE HAD REFERRED TO THE IMPUGNED ORDER OF CIT(A) AND PRAYED FOR TIME TO PAY THE OUTSTANDING DEMAND BEFORE THE TRO. THE ASSESSE E FILED A LETTER BEFORE THE CIT(A) FOR ISSUE OF CERTIFIED COPY OF TH E IMPUGNED ORDER OF THE CIT(A). THIS APPLICATION IS DATED 21.1.2013. THE REASON GIVEN IN THIS APPLICATION FOR GRANT OF CERTIFIED COPY IS THAT THE SAME IS REQUIRED FOR PRODUCTION BEFORE THE CIVIL COURT IN CONNECTION WIT H FAMILY LITIGATION. THIS STATEMENT IN THE APPLICATION CLEARLY CONTRADICTS TH E ASSESSEE'S STAND THAT THE IMPUGNED ORDER OF CIT(A) (ORIGINAL) WAS RECEIVE D BY HIS ADVOCATE AND SENT BY POST, BUT THE ASSESSEE DID NOT RECEIVE THE SAME. IF THIS WAS THE TRUE REASON FOR APPLYING FOR A CERTIFIED COPY OF TH E IMPUGNED ORDER OF CIT(A), THERE WAS NO NEED FOR THE ASSESSEE TO MENTI ON IN THIS APPLICATION ITA NO.354/BANG/2013 PAGE 6 OF 7 THE REASON FOR ASKING FOR CERTIFIED COPY AS NEEDED IN CONNECTION WITH CIVIL PROCEEDINGS IN FAMILY LITIGATION. 11. APART FROM THE ABOVE DISCREPANCY, IT IS SEEN T HAT AS ON 17.8.2013, THE ASSESSEE WAS FULLY AWARE OF THE IMPUGNED ORDER OF CIT(A). THERE IS NO EXPLANATION AS TO WHY APPLICATION FOR GRANT OF CERT IFIED COPY WAS MADE TO THE CIT(A) ONLY ON 24.1.2013. THE DELAY IN THIS RE GARD STANDS UNEXPLAINED. AS FAR AS ILLNESS OF THE ASSESSEE AND HOSPITALIZATI ON IS CONCERNED, THE FIRST HOSPITALIZATION WAS BETWEEN 7.12.10 TO 9.12.10. SE COND HOSPITALIZATION WAS BETWEEN 20.10.12 TO 25.10.12. THEREFORE HOSPIT ALIZATION OF ASSESSEE CANNOT ALSO BE A REASONABLE CAUSE AS THE ASSESSEE W AS RESISTING RECOVERY PROCEEDINGS BY THE TRO AND ASKING FOR PAYMENT OF IN STALLMENTS BY HIS LETTER DATED 17.8.2012. 12. IT IS ALSO SEEN THAT IN THE SECOND AFFIDAVIT F ILED BY THE ASSESSEE, THE ASSESSEE HAS STATED THAT THE ORDER OF AO DATED 23.1 1.2009 GIVING EFFECT TO THE IMPUGNED ORDER OF CIT(A) WAS NOT RECEIVED BY TH E ASSESSEE AS IT HAD BEEN SENT TO THE OLD BUSINESS ADDRESS OF THE ASSESS EE. IT HAS FURTHER BEEN STATED THAT THE ASSESSEE BY CHANCE WAS PASSING THRO UGH THE ROAD IN WHICH THE BUSINESS WAS CARRIED ON EARLIER AND HE HAPPENED TO GET THE ORDER DATED 23.11.2009. IT THUS APPEARS THAT ASSESSEE AT LEAST IN THE MONTH OF AUG. 2012 WAS CARRYING ON HIS DAY TO DAY ACTIVITIES. WE ARE THEREFORE NOT SATISFIED THAT THE DELAY IN FILING THE APPEAL BY TH E ASSESSEE WAS OCCASIONED ITA NO.354/BANG/2013 PAGE 7 OF 7 BY A REASONABLE AND SUFFICIENT CAUSE. WE THEREFORE DECLINE TO CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSESSEE. 13. IN VIEW OF THE DISMISSAL OF APPLICATION FOR CO NDONATION OF DELAY, THE GROUNDS RAISED BY THE ASSESSEE ON MERITS ARE NOT BE ING TAKEN UP FOR CONSIDERATION. 14. IN THE RESULT, APPEAL BY THE ASSESSEE IS DISMI SSED. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JANUARY, 2015. SD/- SD/- ( JASON P. BOAZ ) ( N.V. VASUDEVA N ) ACCOUNTANT MEMBER JUDICIAL MEMBE R BANGALORE, DATED, THE 23 RD JANUARY, 2015. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR / SENIOR PRIVATE SECRETARY ITAT, BANGALORE.