DIWAKAR VIJAY PUNDIR, MUMBAI V. ASST CIT 19(3), MUMBAI

ITA 3608/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3608 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R M MADHAVI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 3608 /MUM/2015 (ASSESSMENT YEAR : 2009-10) MR. DIWAKAR VIJAY PUNDIR, 6-E, ROOP NIKETAN, S.V ROAD, BANDRA (WEST), MUMBAI 400 050 PAN:ABQPP 5449K ... APPELLANT VS. THE ACIT 19(3), ROOM NO.305, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012 .... RESPONDENT APPELLANT BY : NONE RESPONDENT BY : MS. R.M.MADHAVI DATE OF HEARING : 05/07/2016 DATE OF PRONOUNCEMENT : 05/07/2016 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORDE R PASSED BY CIT(A)- 30, MUMBAI DATED 02/12/2013, WHICH IN TURN ARISES O UT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 19/12/201 1. 2. AT THE TIME OF HEARING, IT WAS SEEN THAT THE NO TICE ISSUED TO THE ASSESSEE HAS COME BACK UNSERVED WITH THE REMARK UN CLAIMED. THUS, THERE WAS NO APPEARANCE ON BEHALF OF THE APPELLANT ASSESSEE, WHILE MS. R.M.MADHAVI APPEARED ON BEHALF OF THE REVENUE. 2 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) 3. THE SUBSTANTIVE DISPUTE IN THIS APPEAL ARISES FR OM THE ADDITIONS MADE TO THE RETURNED INCOME ON ACCOUNT OF UNEXPLAI NED INVESTMENT TOWARDS PURCHASE OF FLAT OF RS.7,87,600/- AND UNEX PLAINED CASH DEPOSITS OF RS.10,02,000/-. BOTH THE ADDITIONS WER E CHALLENGED IN APPEAL BEFORE THE CIT(A). THE CIT(A) HAS NOT DEALT WITH THE ISSUE ON MERIT BUT HAS DISMISSED THE APPEAL ON THE PLEA THAT THE SAME WAS BELATED. THE CIT(A) NOTICED THAT THERE WAS A DELAY . ACCORDING TO THE CIT(A) OUT OF THE TOTAL DELAY OF 30 DAYS IN FILIN G OF THE APPEAL THE DELAY OF 20 DAYS WAS NOT SATISFACTORILY EXPLAINED BY THE ASSESSEE AND, THEREFORE, HE HAS DISMISSED THE APPEAL. APART THER EFROM, THE CIT(A) HAS ALSO NOTICED THAT ASSESSEE DID NOT RESPOND TO THE NOTICES OF HEARING ON THREE OCCASIONS AND, THEREFORE, HE PRESUMED THAT ASSESSEE IS NOT INTERESTED TO PROSECUTE THE APPEAL BEFORE HIM. 4. BEFORE ME, THE ASSESSEE IS IN APPEAL BY RAISING THE AFORESTATED GROUNDS OF APPEAL. LD. DEPARTMENTAL REPRESENTATIVE HAS DEFENDED THE ACTION OF THE CIT(A). IN THE ABSENCE OF THE ASSESSE E, I PROCEED TO DISPOSE OFF THE APPEAL EX-PARTE QUA THE APPELLANT AFTER HEA RING THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AS PER RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL)RULES,1963. 5. IN MY CONSIDERED OPINION, THE CIT(A) HAS UNJUSTL Y REFUSED TO CONDONE THE DELAY IN FILING OF THE APPEAL BEFORE HI M. OUT OF THE TOTAL DELAY OF 30 DAYS, THE CIT(A) FOUND THAT THE DELAY O F 10 DAYS COULD BE CONDONED. BEFORE THE CIT(A), ASSESSEE ASSERTED TH AT HIS FATHER HAD PASSED AWAY ON 24/1/2012 AND ON ACCOUNT OF THE SAM E HE COULD NOT 3 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) FILE APPEAL IN TIME. BASED ON SUCH REASON THE CIT( A) TREATED THE DELAY OF 10 DAYS AS EXPLAINED, WHEREAS THE BALANCE OF 20 DAYS WAS NOT FOUND TO BE A SUFFICIENT CAUSE. IN MY CONSIDERED OPINIO N, THE CIT(A) HAS TAKEN A RATHER HYPER-TECHNICAL VIEW OF THE MATTER, ESPECI ALLY CONSIDERING THAT THE DELAY IS NOT OF ENORMOUS NUMBER OF DAYS, AND WAS CAUSED ON ACCOUNT OF BEREAVEMENT IN THE FAMILY OF THE ASSESS EE. IN MY VIEW, THE DELAY OF 30 DAYS IN THE PRESENT CIRCUMSTANCES OUGHT TO HAVE BEEN CONDONED BY THE CIT(A). I HOLD SO. IN THIS VIEW O F THE MATTER, I DEEM IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE F ILE OF CIT(A), WHO SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEIN G HEARD AND, THEREAFTER, ADJUDICATE THE APPEAL ON MERITS IN ACCO RDANCE WITH LAW. THUS, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIST ICAL PURPOSES. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T IN THE PRESENCE OF LD. DEPARTMENTAL REPRESENTATIVE AT TH E CONCLUSION OF HEARING ON 05/07/2016. SD/- (G.S. PANNU) ACCOU NTANT MEMBER MUMBAI, DATED 05/07/2016 VM , SR. PS 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 4 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 05/07/2016 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 05/07/2016 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER