JAWAHARAM N. DESAI, MUMBAI V. INCOME TAX OFFICER 26(1)(4), MUMBAI

ITA 3970/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4227 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Keywords: Condonation of delay
• Section: 271(1)(c); 142(1); 234B; 143(1); 144

Judgement Text

P A G E | 1 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.3970/MUM/2018 (ASSESSMENT YEAR: 2009 - 10 ) JAWAHARAM N. DESAI GALA NO.28, BORI ESTATE, TILAK NAGAR, MUMBAI 400 072 VS. THE INCOME TAX OFFICER 26(1)(4) MUMBAI PAN AHQPD9818E (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI CHAITNYA ANJARIA, D.R DATE OF HEARING: 02 .05 .2019 DATE OF PRONOUNCEMENT: 10 .05.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 38, MUMBAI, DATED 16.05.2017, WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC.144 OF TH E INCOME TAX ACT, 1961 (FOR SHORT I - T ACT), DATED 24.03.2015. THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAS RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. COMMI S SIONER OF INCOME TAX(APPEAL) HAS ERRED IN LAW IN CONFIRMING THE ADDITION OF R S.28,68,414/ - MADE BY ASSESSING OFFICER ON ACCOUNT OF HAWALA PURCHASES WHICH IS MOST UNJUSTIFIED AND ARBITRARY . 2. ERRED IN LAW INITIATING PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF INCOME TAX ACT. 1961 . 3. E RRED IN LAW CHARGE OF INTEREST UNDER SECTION 234A, 234B AND 2340 OF INCOME TAX ACT, 1961 . 4. THE APPELLANT CRAVES TO LEAVE ADD, AMEND ANY OF THE GROUND OF AP PEAL. P A G E | 2 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4) 2. BRIEFLY STATED, THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A.Y. 2009 - 10 ON 13.04.2010, DECLARING TOTAL INCOME OF RS.2,69,530/ - . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE I - T ACT. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE DGIT (INV.), MUMBAI, THAT THE NA ME OF THE ASSESSEE HAD FIGURED IN THE LIST OF THE BENEFICIARIES WHO HAD OBTAINED BOG US BILLS, HIS CASE WAS REOPENED U/S .147 OF THE I - T ACT. 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS , IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE HAD CLAIMED TO HAVE MADE PURCHASES AGGREGATING TO RS. 24,98,881/ - FRO M T HE FOLLOWING TAINTED PARTIES: SR. NO. NAME OF THE HAWALA DEALERS AMOUNT (IN RS.) 1. N.B. ENTERPRISES 3,94,742/ - 2. NAVRATAN IMPEX 2,09,430/ - 3. TARA ENTERPRISES 3,10,081/ - 4. KAVITA SALES AND JYOTI ENTERPRISES 8,20,468/ - 5. SAMCO STEEL & ALLOYS 1,07,744/ - 6. MANGLIK METAL (INDIA) 2,44,154/ - 7. MALANI METAL (INDIA) 2,53,610/ - 8. B.M. TRADING COMPANY 1,58,652/ - TOTAL 24,98,881/ - THE A.O IN ORDER TO VERIFY THE GENUINENESS AND VERACITY OF THE AFORESAID PURCHASE TRANSACTIONS , ISSUED NOTICES UNDER SEC.133(6) TO THE ABOVEMENTIONED PARTIES AT THE ADDRESSES PROVIDED BY THE ASSESSEE, WHICH HOWEVER WERE RETURNED UNSE R VED BY THE POSTAL AUTHORITIES WITH THE REMARKS LEFT, NOT KNOWN ETC. AS THE ASSESSEE FAILED TO PLACE ON RECORD ANY DOCUMENTARY EVIDENCE WHICH COULD SUBSTANTIATE THE GENUINENESS OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION, THEREFORE, THE A.O FRAMED THE ASSESSMENT U/S 144 AND ADDED BACK THE ENTIRE AMOUNT OF THE PURCHASE S OF RS.24,98,881/ - WHICH WERE CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM THE AFOREMENTIONED PARTIES. P A G E | 3 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4) 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). HOWEVER, THE ASSESSEE DESPITE HAVING BEEN INTIMATED AS REGARDS THE DATE OF HEARING OF THE APPEAL , FAILED TO PUT UP AN AP PEARANCE BEFORE THE FIRST APPELLATE AUTHORITY IN THE COURSE OF THE PROCEEDINGS. APART THERE FROM, IT WAS OBSERVED BY THE CIT(A) THAT THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT FRAMED UNDER SEC.144 INVOLVED A DELAY OF 63 DAYS. IT WAS NOTICED BY THE CIT(A) , THAT THE ASSESSEE HAD NOT ENCLOSED/FILED ANY LETTER/AFFIDAVIT REQUESTING FOR CONDONATION OF DELAY INVOLVED IN FILING OF THE APPEAL. FURTHER, IT WAS OBSERVED BY THE CIT(A) THAT THE ASSESSEE HAD ALSO ADOPTED A NON - COOPERATIVE ATTITUDE IN THE COU RSE OF THE ASSESSMENT PROCEEDINGS, AS A RESULT WHEREOF THE A.O WAS CONSTRAINED TO FRAME THE ASSESSMENT UNDER SEC.144 OF THE I - T ACT. IN THE BACKDROP OF THE AFORESAID FACTS, THE CIT(A) DISMISS ED THE APPEAL OF THE ASSESSEE. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. AS THE ASSESSEE ON THE DATE OF HEARING OF THE APPEAL HAD NEITHER PUT UP AN APPEARANCE BEFORE US NOR FILED ANY APPLICATION SEEKING AN ADJOURNMENT, THEREFOR E, WE PROCEED WITH THE MATTER AND DISPOSE OFF THE APPEAL AS PER RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1962 , AFTER HEARING THE RESPONDENT REVENUE AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES. 6. WE FIND FROM A PERUSAL OF THE ORDERS OF THE LOWER AUTHO RITIES THAT THE ASSESSEE HAD ADOPTED A NON - COOPERATIVE APPROACH IN THE COURSE OF THE PROCEEDINGS BEFORE THEM . AS IS DISCERNIBLE FROM THE ORDER PASSED BY THE A.O UNDER SEC.144, DATED 24.03.2015, THE ASSESSEE HAD IN THE COURSE OF THE ASSESSMENT PROCEEDINGS C ONSISTENTLY FAILED TO COMPLY WITH THE NOTICES U/S 142(1) , WHICH WERE ISSUED TO HIM ON 24.09.2014 AND 19.01.2015. ACCORDINGLY, THE A.O IN THE BACKDROP OF THE NON - COOPERATIVE ATTITUDE OF THE ASSESSEE WAS CONSTRAINED TO IMPOSE PENALTY P A G E | 4 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4) U/S 271(1)(B) ON THE ASS ESSEE FOR NON - COMPLIANCE OF THE AFORESAID STATUTORY NOTICES. AS OBSERVED HEREINABOVE, FOR THE REASON THAT THE ASSESSEE HAD FAILED TO COOPERATE IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THEREFORE, THE A.O WAS COMPELLED TO FRAME THE ASSESSMENT UNDER SEC.1 44 OF THE I - T ACT. FURTHER, IN THE COURSE OF THE PROCEEDINGS BEFORE THE CIT(A) ALSO THE ASSESSEE CONTINUED WITH HIS NON - COOPERATIVE APPROACH , AND DESPITE HAVING BEEN PUT TO NOTICE ABOUT THE DATE OF HEARING OF THE APPEAL , FAILED TO PUT UP AN APPEARANCE BEFORE HIM. APART THERE FROM , AS OBSERVED BY THE CIT(A) , THOUGH THE APPEAL FILED BY THE ASSESSEE INVOLVED A DELAY OF 63 DAYS, HOWEVER , NO LETTER/AFFIDAVIT SEEKING CONDONATION OF THE SAID DELAY WAS FILED EITHER ALONG WITH THE APPEAL OR THEREAFTER . AS OBSERVED BY US HEREINABOVE , THE CIT(A) IN THE BACKDROP OF THE AFORESAID FACTS WAS CONSTRAINED TO DISMISS THE APPEAL. 7. AS IS DISCERNIBLE FROM THE ORDER OF THE CIT(A), THE APPEAL FILED BY THE ASSESSEE WITH HIM WAS BEYOND THE TIME P ERIOD CONTEMPLATED IN SUB - SECTION (2) OF SEC. 249 IN FACT, THE APPEAL FILED BY THE ASSESSEE INVOLVED A DELAY OF 63 DAYS. ADMITTEDLY, THE CIT(A) AS PER SUB - SEC. (3) OF SEC. 249 IS VESTED WITH A DISCRETION TO ADMIT AN APPEAL FILED BEYOND THE STIPULATED TIME PERIOD, IF HE IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR THE ASSESSEE IN NOT PRESENTING T H E SAME WITHIN THE PRESCRIBED TIME LIMIT. HOWEVER, AS THE ASSESSEE IN THE CASE BEFORE US, HAD NOT FILED ANY APPLICATION FOR CONDONATION OF THE DELAY IN VOLVED IN THE APPEAL FILED BY HIM, THEREFORE, THE SAME ON THE SAID COUNT ITSELF WAS NOT MAINTAINABLE . SUCCINCTLY STATED, AS THE ASSESSEE HAD FAILED TO FILE AN APPLICATION FOR CONDONATION OF THE DELAY IN VOLVED IN FILING OF THE APPEAL BEFORE THE CIT(A), THEREFORE, TH E LATTER WAS NOT VESTED WITH ANY DISCRETION TO CONDONE THE DELAY AND ADMIT THE APPEAL BY EXERCISING THE POWERS VESTED WITH HIM UNDER SUB - SECTION (3) OF SEC. 249 OF THE I - T ACT. WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS ARE OF THE P A G E | 5 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4) CONSIDERED VIEW THAT AS THE APPEAL FILED BY THE ASSESSEE BEYOND THE STIPULATED TIME PERIOD WAS NOT MAINTAINABLE, TH EREFORE , THE CIT(A) HAD RIGHTLY DISMISSED THE SAME. WE THUS FINDING OURSELVES TO BE IN AGREEMENT WITH THE VIEW TAKEN BY THE CIT(A) , UPHOLD HIS ORDER. 8. THE APPEA L FILED BY THE ASSESSEE IS DISMISSED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 10 .05.2019 SD/ - SD/ - ( SHAMIM YAHYA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 10 .05.2019 PS. ROHIT / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 6 ITA NO. 3970/MUM/2018 A.Y. 2009 - 10 JAWAHARAM N. DESAI VS. THE INCOME TAX OFFICER - 26(1)(4)