MOHAMED ALI QURESHI, NAVI MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 4053/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7817 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: PRERANA GHAG
• Keywords: Search and seizure; Reasonable cause
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NOS.4053, 4055, 4056 & 4057/M/2014 ASSESSMENT YEARS: 2005-06, 2006-07, 2007-08 & 2007- 08 MR. MOHAMMED ALI QURESHI, 8, FATIMA MANZIL, KOLIVERY VILLAGE RD., SANTACRUZ EAST, MUMBAI 400 029 PAN: AAAPQ1896Q VS. ITO 19(2)(4), R.NO.3102, 3 RD FLOOR, B-WING, MITTAL COURT, NARIMAN POINT, MUMBAI - 400021 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : MS. PRERANA GHAG, A.R. & SHRI SNEHAL SHAH, A.R. REVENUE BY : SHRI T.A. KHAN, D.R. DATE OF HEARING : 07.12.2017 DATE OF PRONOUNCEMENT : 22.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: ALL THE FOUR APPEALS RELATE TO THE SAME ASSESSEE A ND HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 3 0.10.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEARS 2005-06, 2 006-07, 2007-08 & 2007-08. ITA NO.4057/M/2014 IS THE QUANTUM APPEA L FOR A.Y. 2007-08 AND ITA NO.4056/M/2014 IS THE PENALTY APPEA L FOR A.Y. 2007-08. SINCE THE FACTS AND ISSUES INVOLVED THERE IN ARE IDENTICAL IN NATURE, HENCE THE SAME ARE TAKEN TOGETHER FOR DISPO SAL BY THIS ITA NOS.4053, 4055, 4056 & 4057/M/2014 MR. MOHAMMED ALI QURESHI 2 COMMON ORDER. FOR THE SAKE OF CONVENIENCE THE FACTS HAVE BEEN TAKEN FROM ITA NO.4053/M/2014. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, REGULARLY ASSESSED BY ITO 19(2) (4), MUMBAI. THE AS SESSEE IS ENGAGED IN THE BUSINESS OF CIVIL CONTRACTOR. THE D DIT (INV), UNIT- 11(3), MUMBAI HAD CONDUCTED A SEARCH AND SEIZURE AC TION ON HAREN CHOKSHI GROUP, WHEREIN THE INVESTIGATION WING FOUND THAT THE ASSESSEE WAS ENGAGED BY SHRI NALIN CHOKSI, PROPRIET OR OF M/S SHREENATH ENTERPRISES FOR CONSTRUCTION WORK. AS PER THE REPORT OF THE INVESTIGATION WING BASED ON THE STATEMENT RECORDED O F SHRI NALIN CHOKSHI, THE ASSESSEE HAD ISSUED VARIOUS CHEQUES AM OUNTING TO RS.24,00,000/- FROM CURRENT A/C NO 3849 WITH SAMTA SHAKARI BANK LTD. SANTACRUZ (W), MUMBAI. FURTHER, THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS MADE AN ADD ITION OF RS.19,41,000/- BEING DEPOSITS MADE IN ACCOUNT NO. 5 0746 WITH CORPORATION BANK. THUS, THE AO PASSED AN ORDER U/S 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 BY MAKING AN ADDITION O F RS.43,41,000/-. THE AO HAS NOW PASSED AN ORDER U/S 271(1)(C) AND LEVIED A PENALTY OF RS.15,57,387/-. 3. MATTER CARRIED TO THE LD. CIT(A). THE ASSESSEE HAD FILED AN APPEAL ALONG WITH CONDONATION FOR DELAY BEFORE THE LEARNED CIT (A)- 30 ON 24TH DECEMBER, 2012. HOWEVER, THE LD. CIT (A ) HAS NOT ACCEPTED THE REASONS FOR DELAY IN FILING APPEAL AND HENCE HAS DISMISSED THE APPEAL AS NOT ADMITTED. ITA NOS.4053, 4055, 4056 & 4057/M/2014 MR. MOHAMMED ALI QURESHI 3 4. WE HAVE GONE THROUGH THE ORDER OF THE LD. CIT(A) AND FOUND THAT THE LD. CIT(A) IN HIS ORDER HAS NOT CONDONED T HE DELAY ON THE GROUND THAT APPEAL HAS BEEN FILED LATE BY MORE THAN 2 YEARS. THE LD. CIT(A) IN HIS ORDER HAS STATED THAT THERE WAS I NORDINATE DELAY WHICH HAS NOT BEEN EXPLAINED BY THE ASSESSEE. 5. LD. A.R. SUBMITTED BEFORE US THAT ASSESSEE HAS R ECEIVED THE ASSESSMENT ORDER AND DELIVERED THE SAME TO HIS THEN CHARTERED ACCOUNTANT MR. SHETTY WHO IN TURN APPOINTED M/S. S. V. NAVALKAR & ASSOCIATES WHO WAS HANDLING THE MATTERS ON RECEIPT OF EVERY NOTICE. THE ASSESSEE WAS UNDER IMPRESSION THAT HIS THEN CHA RTERED ACCOUNTANT WAS ATTENDING HIS CASE. BUT HE WAS NOT ATTENDING HIS CASE AND HE CAME TO KNOW ABOUT IT ONLY WHEN HIS SMA LL LITTLE SHOP WAS ATTACHED BY THE RECOVERY OFFICER. THEREFORE, H E RUSHED TO ONE MR. SNEHAL SHAH BY WHOSE ADVICE ASSESSEE TRIED TO F ILE THE APPEAL BUT HE WAS NOT HAVING THE PAPER AS ALL THE PAPERS WERE LYING WITH HIS PREVIOUS CHARTERED ACCOUNTANT. THEREFORE, IN VIEW OF THIS THERE WAS INORDINATE DELAY IN FILING THE APPEAL, THEREFORE, A PPEAL MAY BE ADMITTED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. WE FIND THAT THE ASSESSEE HAD REASONABLE CAUSE FOR DEL AY IN FILING THE APPEAL. WE FIND THAT HIS THEN CHARTERED ACCOUNTANT MR. SHETTY INTRODUCED HIM TO M/S. S.V. NAVALKAR & ASSOCIATES T O FILE THE APPEAL BUT MR. SHETTY AND M/S. S.V. NAVALKAR & ASSOCIATES COULD NOT FINALIZE ON WHAT BASIS M/S. S.V. NAVALKAR & ASSOCIA TES HAS TO APPEAR ITA NOS.4053, 4055, 4056 & 4057/M/2014 MR. MOHAMMED ALI QURESHI 4 BEFORE THE CONCERNED AUTHORITIES. THEREFORE, WE AR E OF THE VIEW THAT THERE WAS SOME MISUNDERSTANDING BETWEEN MR. SHETTY AND M/S. S.V. NAVALKAR & ASSOCIATES AND THE ASSESSEE. THEREFORE, ASSESSEE HAD A REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL. W E FIND THAT THERE IS ALSO A LACK OF SINCERITY ON PART OF ASSESSEE TO BLA ME SOMEBODY. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, WE DIRECT THE ASSESSEE TO DEPOSIT RS.5000/- TO THE PRIME MINISTER RELIEF FUND AND ON PAYMENT OF THIS AMOUNT, THE CONDONATION OF APPLI CATIONS IS ALLOWED AND WE RESTORE ALL THESE APPEALS TO THE FIL E OF AO TO DECIDE AFRESH AFTER CONSIDERING ALL THE EVIDENCES ON RECOR D. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.12.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.