RINA S. MEHTA, MUMBAI V. DCIT CC 23, MUMBAI

ITA 3923/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2583 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 18-03-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 17-05-2013
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Condonation of delay
• Section: 144

Judgement Text

1 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACOUNTANT MEMBER) I.T.A. NO.3920 /MUM/2013 - A.Y. 2005-06 I.T.A. NO.3923 /MUM/2013 - A.Y. 2004-05 I.T.A. NO.3924 /MUM/2013 - A.Y. 2006-07 I.T.A. NO.3925 /MUM/2013 - A.Y. 2007-08 SMT. RINA S MEHTA 32, MADHULI, DR A.B. ROAD WORLI, MUMBAI-18 VS DCIT, CC-23, MUMBAI PAN :ABNPM8228C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI DHAVAL SHAH RESPONDENT BY DR P DANIEL DATE OF HEARING : 28-06-2016 DATE OF PRONOUNCEMENT : 13 -07-2016 O R D E R PER ASHWANI TANEJA, AM THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAIN ST DIFFERENT ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS), MUMBAI [HEREI NAFTER CALLED CIT(A)]. THESE APPEALS PERTAIN TO THE SAME ASSESSEE AND IDEN TICAL ISSUE IS INVOLVED IN THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND BEING DISPOSED OF BY THIS COMMON ORDER. 2 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 2. IT IS NOTED THAT IN THIS CASE, THE LD CIT(A) HAD DI SMISSED ALL THESE APPEALS ON THE GROUND THAT APPEALS WERE FILED BELATEDLY AND THEREFORE, LD. CIT(A) REFUSED TO GRANT CONDONATION AND DISMISSED THE APPE ALS U/S 249(2) IN LIMINE. 3. BEFORE US, THE LD. COUNSEL APPEARING ON BEHALF OF T HE ASSESSEE, SHRI DHAWAL SHAH CONTENDED ON BEHALF OF THE ASSESSEE THA T THERE WERE REASONS BEYOND THE CONTROL OF THE ASSESSEE AND THAT IS WHY APPEALS COULD NOT BE FILED IN TIME AND PROPER REPRESENTATION COULD NOT BE MADE BEFORE THE LD. CIT(A). HE DREW OUR ATTENTION ON THE DETAILED PETITION FILED S UPPORTED BY AN AFFIDAVIT WHEREIN FACTS AND CIRCUMSTANCES UNDER WHICH THE APP EALS COULD NOT BE FILED IN TIME BEFORE THE LD CIT(A), HAVE BEEN NARRATED. HE ALSO MADE A STATEMENT AT THE BAR THAT IF AN OPPORTUNITY IS GIVEN BEFORE THE LD.CIT(A), THEN PROPER REPRESENTATION WOULD BE MADE AND EVERY COOPERATION SHALL BE EXTENDED TO LD.CIT(A) BY SUBMITTING REQUISITE INFORMATION AND P APER BOOK. 4. PER CONTRA, DR P DANIEL, SPECIAL COUNSEL APPEARING ON BEHALF OF THE REVENUE SUBMITTED THAT IN CASE ASSESSEE UNDERTAKES TO MAKE PROPER REPRESENTATION BEFORE THE LOWER AUTHORITIES, THEN, HE WOULD HAVE NO SERIOUS OBJECTION. IT WAS ALSO SUBMITTED THAT THE ASSESSEE SHOULD SUBMIT AND JUSTIFY THE REASONS FOR NON-APPEARANCE BEFORE THE LD.CIT(A) ON MANY OCCASIONS. 5. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHOR ITIES, SUBMISSIONS MADE BY BOTH THE SIDES BEFORE US AS WELL AS PETITIO N FOR CONDONATION OF DELAY AND DETAILED REASONING SUBMITTED BY THE LD. COUNSEL ALONG WITH THE AFFIDAVIT TO EXPLAIN THE DELAY IN FILING OF THE APPEALS BEFORE L D.CIT(A) AND ALSO LACK OF PROPER REPRESENTATION BEFORE THE LD.CIT(A). FOR TH E SAKE OF READY REFERENCE, 3 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 THE REASONS EXPLAINED IN DETAIL IN WRITING BY THE A SSESSEE BEFORE US ARE REPRODUCED HEREUNDER: REASONS FOR DELAY IN FILING APPEAL AND NON-APPEARAN CE AT THE TIME OF HEARING BEFORE LD. CIT(A): 1. I SUBMIT THAT I AM A FAMILY MEMBER OF LATE SHRI HAR SHAD S. MEHTA. I AM ALSO A NOTIFIED ENTITY UNDER THE PROVISIONS OF SPECIAL C OURTS (TRAIL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) AC T, 1992 W.E.F. 04.01.2007. 1 STATE THAT MY ASSETS WERE ATTACHED SINCE 08.06.1992 SINCE THEY WERE JOINTLY HELD WITH OTHER MEMBERS OF MY FAMILY WHO GOT NOTIFI ED ON 08.06.1992. IN VIEW OF MY NOTIFICATION UNDER THE SPECIAL COURTS ACT, AL L MY ASSETS INCLUDING BANK ACCOUNTS ARE UNDER CONTROL OF THE CUSTODIAN APPOINT ED FOR THIS PURPOSE WHO MANAGES THE SAME UNDER ORDERS OF HON'BLE SPECIAL CO URT. I SUBMIT THAT I HAVE NO OTHER SOURCE OF INCOME EXCEPT THE INCOME EARNED ON ATTACHED ASSETS. 2. FOR A.Y. 2004-05 TO 2006-07, THE ASSESSMENT ORDER W AS PASSED U/S 144 OF THE ACT ON 01.12.2008. APPEALS AGAINST THE SAID ORD ER WERE PREFERRED BEFORE LD. CIT(A) ON 02.02.2009 WITH A DELAY OF 17 DAYS. S IMILARLY, FOR A.Y. 2007-08, THE ASSESSMENT ORDER WAS PASSED U/S 144 OF THE ACT ON 16.12.2009. APPEAL AGAINST THE SAID ORDER WAS FILED BEFORE LD. CIT(A) ON 18.02.2010 WITH A DELAY OF 34 DAYS. 3. THE LD. CIT(A) DISMISSED MY APPEALS IN LIMINE FOR A .Y. 2004-05 TO 2007-08 VIDE ORDER DATED 04.03.2013 ON THE FOLLOWING GROUND S: A.THAT THE APPEALS WERE BELATEDLY FILED AND NO APPLICATION FOR CONDONATION OF DELAY WAS FILED. B.THAT NO ONE APPEARED ON BEHALF OF THE APPLICANT A T THE TIME OF HEARING. 4. AS REGARDS THE DELAY IN FILING OF APPEALS, IT IS SUBMITTED THAT THE DELAY WAS PRIMARILY FOR THE REASON THAT THE APPEAL FEES WERE NOT RELEASED BY THE CUSTODIAN AND HENCE THE APPEAL COULD NOT BE FILED IN TIME. IT IS REITERATED THAT I AM A NOTIFIED ENTITY AND ALL MY ASSETS ALONG WITH THE BANK ACCOUN TS ARE MANAGED BY THE CUSTODIAN APPOINTED UNDER THE SPECIAL COURT ACT. TH E APPLICANT HAS TO REQUEST THE CUSTODIAN TO RELEASE FEES FOR FILING APPEAL. AC CORDINGLY, I HAD ADDRESSED A LETTER TO THE CUSTODIAN ON 31.12.2008 FOR RELEASE O F APPEAL FEES. THE COPY OF THE SAID LETTER IS ENCLOSED AT ANNEXURE W. SINCE THE AP PEAL FEES WERE NOT RELEASED 4 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 BY THE CUSTODIAN INSPITE OF THE VISITS AND PERSONAL FOLLOW UPS, THE FILING OF APPEAL GOT DELAYED. 5.MOREOVER, DURING THE SAID PERIOD, PARTICULARLY FO R A.Y. 2007-08, I WAS ALSO FACING SEVERAL OTHER DIFFICULTIES INCLUDING NON-AVA ILABILITY OF THE TAX CONSULTANTS FOR PREPARING THE APPEALS AND FILING THE SAME. IT I S SUBMITTED THAT DUE TO THE NOTIFICATION AND THE ATTACHMENT OF MY ASSETS, I WAS UNABLE TO MAKE THE PAYMENTS TO THE CONSULTANTS AND COUNSEL FOR THE PURPOSE OF M AKING TAX COMPLIANCES. FURTHER, NUMBER OF MATTERS BEFORE THE HON'BLE SPECI AL COURT AND HONBLE SUPREME COURT HAD TO BE ATTENDED BY ME AS A RESULT OF WHICH I COULD NOT ATTEND TO FILING OF THE IMPUGNED APPEAL BEFORE THE LD. CIT (A). 6. YOUR HONOURS WOULD OBSERVE THAT I HAD TAKEN ALL THE INITIATIVES TO ADDRESS LETTER TO THE CUSTODIAN FOR THE RELEASE OF THE APPEAL FEE FOR FILING THE APPEAL AND EVENTUALLY AS THE FEES WERE NOT RELEASED, THE SAME WAS PAID BY CASH OBTAINED FROM OTHERS AND APPEAL WAS FILED BEFORE LD. CIT(A). THUS, SO FAR AS THE APPEALS WERE CONCERNED, I WAS VERY MUCH DILIGENT AND ANXIOU S ABOUT PURSUING THE APPEALS. THE DELAY WAS CAUSED FOR REASONS WHICH WER E BEYOND THE CONTROL OF THE APPLICANT AND THERE WAS NO DELIBERATE DELAY OR ANY MALAFIDE INTENTION ON THE PART OF THE APPLICANT. 7. AS REGARDS NON APPEARANCE BEFORE THE LD. CIT (A) , I REITERATE THAT I DID NOT HAVE THE BENEFIT OF THE PROFESSIONAL ASSISTANCE REG ULARLY, MORE PARTICULARLY DUE TO NON AVAILABILITY OF COMPLETE RE CORDS WITH ME AS WELL AS MY INABILITY TO SEEK THE PRESENCE OF MY CONSULTANTS/ C OUNSEL. FURTHER, DURING THE SAID YEAR NUMBER OF PROCEEDINGS WERE BEING CARRIED OUT BEFORE THE HON'BTE SPECIAL COURT AND HON'BLE SUPREME COURT. AS A RESUL T OF THE SAME I HAD TO FREQUENTLY ATTEND TO THESE MATTERS, PARTICULARLY BE CAUSE THEY WERE PERTAINING TO THE SALE OF OUR RESIDENTIAL HOUSE. FURTHER, I ALSO DID NOT HAVE SUFFICIENT STAFF TO LOOK AFTER THESE PROCEEDINGS BEFORE THE LD. CIT (A) . 8. THUS, THE APPLICANT COULD NOT MAKE COMPLIANCES DUE TO SEVERAL REASONS, WHICH ARE SUMMARISED AS UNDER: A) NO RELEASE OF APPEAL FILING FEES BY THE CUSTODIA N. B) ATTACHMENT OF ASSETS INCLUDING BANK ACCOUNTS. C) NON AVAILABILITY OF COUNSELS / ADVOCATES TO REPR ESENT D) OTHER SPECIAL COURT MATTERS PENDING BEFORE HON'B LE SPECIAL COURT AT SUCH POINT OF TIME. 5 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 E) NO STAFF TO GET HELP FOR DETAILS GATHERING AND A TTENDING TO INCOME TAX PROCEEDINGS AS THEIR SERVICES WERE DISPE NSED WITH. 9. IT IS SUBMITTED THAT MY ABOVE DIFFICULTIES PREV AILING FOR A VERY LONG PERIOD HAS BEEN JUDICIALLY NOTICED AND CONSIDERED B Y THE HON'BTE TRIBUNAL IN SEVERAL MATTERS. IN THIS REGARD, REFERENCE MAY BE D RAWN TO THE ORDER OF HON'BLE MUMBAI TRIBUNAL VIDE IN THE CASE OF THE ASH WIN S. MEHTA V. DCIT & ORS. [ITA NO. 7310/M/2003] DATED 31 .03.2006, WHERE IN ALL THE DIFFICULTIES MENTIONED ABOVE ARE CONSIDERED BY THE HON'BLE TRIBU NAL AND DELAY IN FILLING THE APPEALS WAS CONDONED. 10. YOUR HONOURS MAY ALSO NOTE THAT THE HON'BLE SU PREME COURT IN THE CASE OF HARSHAD SHANTILAL MEHTA V. CUSTODIAN & ORS [231 ITR 871] HAS ALSO TAKEN JUDICIAL NOTICE OF PECULIAR CONDITIONS THAT WOULD G OVERNMENT A NOTIFIED PERSON BY OBSERVING THAT, 'THEN, ON ACCOUNT OF HIS PROPERTY B EING ATTACHED, HE MAY NOT BE IN A POSITION TO DEPOSIT THE TAX ASSESSED OR FILE A PPEALS OR FURTHER PROCEEDINGS UNDER THE RELEVANT TAX LAW WHICH HE COULD HAVE OTHE RWISE DONE. '. 11. THE APPLICANT ALSO RELIES ON THE DECISION OF H ON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. KAT IJI & ORS. (167 ITR 471) AND N. BALAKRISHNAN V. M. KRISHNAMOORTHY (AIR 1998 S.C. 3222) WHEREIN THE HON'BLE COURT HAS HELD THAT A LIBERAL VIEW SHALL BE TAKEN WHILE DECIDING CONDONATION OF DELAY. 12. FURTHER, IN VARIOUS CASES OF THE FAMILY MEMBERS AND OTHER CONCERNS, THE HON'BLE TRIBUNAL HAS TAKEN A CONSISTENT VIEW TH AT DELAY SHALL BE CONDONED IN CASE OF NOTIFIED ENTITIES. DETAILS OF SOME OF THE O RDERS IS MENTIONED AS UNDER: NAME OF THE CASE DELAY CONDONED (NO OF DAYS) RASITA MEHTA V. DOT [ ITA NO. 36831M/201 1] DATED 11 DAYS 28.11.2014 2 RINA MEHTA V. DOT ET ORS [ITA NO. 3047/M/2 006] DATED UPTO 11.12.2007 [31 CASES] 1145 DAYS ASHWIN S. MEHTA V. DOT [ITA NO. 7310/MUM/2003] UPT O DATED 31.03.2006]_[39_CASES] 827DAYS GROWMORE RESEARCH A ASSETS MGT LTD. V. ACIT E ORS UPTO [3576/MUM/2007] DATED 17.12.2007 [16 CASES] 573 DAYS 6 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 13. IN VIEW OF THE AFORESAID FACTUAL AND LEGAL POS ITION, IT IS HUMBLY PRAYED THAT THE DELAY OCCURRED IN FITTING OF THE APPEAL BEFORE LD. CIT(A) AND SUBSEQUENT NON ATTENDANCE WAS DUE TO REASONS BEYOND THE CONTROL OF THE APPLICANT. 6. IT IS FURTHER NOTED THAT THE AFORESAID REASONS HAVE BEEN SUPPORTED WITH AN AFFIDAVIT OF THE ASSESSEE IN WHICH ALL THESE FAC TS HAVE BEEN DEPOSED ON OATH. NOTHING WRONG HAS BEEN POINTED OUT BY THE LD. SPECI AL COUNSEL OF REVENUE IN THE SAID AFFIDAVIT AND REASONS EXPLAINED BY THE LD. COUNSEL OF THE ASSESSEE. IT IS NOTED THAT THERE WAS DELAY OF 17 DAYS IN THE APP EALS FOR A.YS 2004-05 TO 2006-07 AND DELAY OF 34 DAYS IN THE APPEAL FOR A.Y. 2007-08. A PERUSAL OF THE REASONS EXPLAINED BY THE LD. COUNSEL SHOWS THAT THE RE WAS SUFFICIENT CAUSE WHICH HAD LED TO DELAY IN FILING OF THE APPEALS BEF ORE THE LD. CIT(A) AND ALSO CAUSED IMPROPER REPRESENTATION BEFORE THE LD.CIT(A) . IN OUR OPINION, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE DOORS OF JUSTICE SHOULD NOT BE CLOSED TO THE ASSESSEE WITHOUT PROPER TRIAL. THE FINAL TA X LIABILITY OF AN ASSESSEE SHOULD NOT BE DETERMINED WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING. IT IS FURTHER NOTED THAT TRIBUNAL IN OTHER CASES OF THE FAMILY HAS CONDONED THE DELAY, EVEN FOR LARGER NUMBER OF DAYS. FURTHER, SH RI DHAVAL SHAH, THE LD. COUNSEL OF THE ASSESSEE GAVE AN UNDERTAKING BEFORE THE BENCH DURING THE COURSE OF HEARING THAT IF ANOTHER OPPORTUNITY IS GI VEN, THEN PROPER REPRESENTATION SHALL BE MADE BEFORE THE LD. CIT(A). THUS, TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY OF 17 DAYS AND 34 DAYS IN FILING OF APPEALS BEFORE LD.CIT(A) AND S END THESE APPEALS BACK TO THE FILE OF THE LD.CIT(A). THE ASSESSEE SHALL SUO MOTTO APPEAR BEFORE THE LD. CIT(A) ON 17-10-2016. THE ASSESSEE SHALL ALSO SUBMIT REQUISITE WRITTEN SUBMISSIONS AND PAPER BOOK AND SHALL NOT TAKE ADJOU RNMENT WITHOUT A VALID REASON. THE ASSESSEE SHALL ALSO EXTEND NECESSARY C OOPERATION TO THE LD. CIT(A) 7 I.T.A. NO.3920, 3923 TO 3925-MUM-2013 IN EXPEDITIOUS DISPOSAL OF THESE APPEALS. LD. CIT( A) SHALL ADMIT THESE APPEALS AND DISPOSE OF THE SAME ON MERITS. THE LD. CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. WITH THESE DIRECTIONS, THESE APPEALS ARE SENT BACK TO THE FILE OF THE LD. CIT(A) FOR DISPOSAL ON MERITS. 8. A RESULT, THESE APPEALS MAY BE TREATED AS ALLOWED F OR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON THIS _13 TH DAY OF JULY, 2016. SD/- SD/- (JOGINDER SINGH) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 13 TH JULY, 2016 PK/- & PATEL COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , D-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES