Shri Dhaval Govindbhai Patel, Surat V. Commissioner of Income Tax (Appeal)-2, Surat

ITA 409/SRT/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0859 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-10-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 28-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 408 & 409/SRT/2019 (AY: 2011-12) (Hearing in Physical Court) Dhaval Govindbhai Patel, 25, Bharati Park Society, Parle Point, Nr. Holiday, Athwalines, Surat. PAN: AKIPP 2185 M Vs I.T.O., Ward-1(3)(1), Surat. Appellant/Assessee Respondent/Revenue Assessee by None Revenue by Shri Ashok B. Koli, CIT-DR Date of hearing 13/10/2022 Date of pronouncement 13/10/2022 Order under Section 254(1) of Income tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the assessee are directed against the separate orders of learned Commissioner of Income Tax (Appeals)- 2, Surat dated 08/03/2018 and 23/03/2018 for the assessment year (AY) 2011-12. 2. In ITA No. 409/Srt/2019, the assessee has assailed the addition made in the quantum assessment and in ITA No. 408/Srt/2019, the assessee has assailed the penalty levied under Section 271(1)(c) of the Income Tax Act, 1961 (in short, the Act). In quantum assessment Appeal in ITA No. 409/Srt/2019, the assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in reopening assessment by issuing notice u/s 148 of the IT Act. ITA No. 408 & 409/SRT/2019 Shri Dhaval Govindbhai Patel Vs ITO 2 2. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in passing ex parte order u/s 144 of the IT Act. 3. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in making addition of Rs. 1,06,47,72,827/- as unexplained unsecured loan u/s 68 of the IT Act, 1961. 4. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in making addition of Rs. 65,30,07,174/- as unexplained bogus advance from customers u/s 68 of the IT Act, 1961. 5. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in making addition of Rs. 40,93,11,483/- as unexplained bogus sundry creditors u/s 68 of the IT Act, 1961.” 3. Perusal of record shows that the impugned order was passed by the ld. CIT(A) on 08/03/2018, however, the appeal was filed before the Tribunal on 29/08/2019. Thus, there is substantial delay in filing the appeal. The Registry of this Tribunal has calculated/worked out the delay of 479 days in filing the present appeal. Defect memo was issued to the assessee as per procedure of Registry. Notice of hearing of the appeal was sent and served on assessee through RPAD, on more than three occasions. None appeared on behalf of assessee, nor any application for adjournment was filed. Perusal of record shows that the application for adjournment was filed by assessee on one occasion i.e. on 31/3/2012. The said application was received at 2.00 PM, however, the case was already adjourned to 09/06/2022. The representative of assessee namely Shah Nilesh Radheyshyam CA from ATIT Shah & Associates came on behalf of assessee and noted the next date of hearing, by putting his signature on their adjournment application. Thereafter, none appeared on behalf of assessee. Therefore, we left no option except ITA No. 408 & 409/SRT/2019 Shri Dhaval Govindbhai Patel Vs ITO 3 the decide the appeal on the basis of material on record after hearing the submissions of ld Departmental representative (DR). 4. Perusal of record shows that the assessee has filed his affidavit for condonation of delay in filing appeal. In the affidavit, the assessee has contended that he is not familiar with income tax matter that he was required to file appeal within 60 days from the date of receipt of order. He requested his authorised representative to file appeal before the Tribunal who did not prepare appeal. Thereafter, he consulted another Chartered Accountant, who filed appeal before the Tribunal. 5. On the other hand, the ld. CIT-DR for the revenue submits that the affidavit filed by assessee, does not disclose sufficient cause for condonation of delay. The assessee is taking lame excuse. The addition of more than Rs. 200 crores were made in the assessment. Even during the assessment, the assessee has not cooperated and ultimately the assessment was completed under Section 144 of the Income Tax Act, 1961. Before the ld. CIT(A), the assessee was also casual and has not attended the hearing as recorded in para 6.1.3 of his order. The lower authorities after detailed discussion, confirmed the addition. The ld. CIT-DR submits that in both the appeals, the assessee has neither come forward to explain the delay nor has shown sufficient reason to condone the delay. ITA No. 408 & 409/SRT/2019 Shri Dhaval Govindbhai Patel Vs ITO 4 6. We have considered the submission of ld. CIT-DR for the revenue and perused the orders of lower authorities carefully. We find that the impugned order was passed by ld. CIT(A) on 08/03/2018, however, the present appeal was filed only on 29/08/2019, thus, there was inordinate delay of 479 days in filing the present appeal. The present appeal is filed in 2019, till date, despite service of notices, neither the assessee nor his representative has attended the hearing. Perusal of affidavit, shows that that it is drafted in casual manner without mentioning or disclosing the name of C.A., who was instructed by assessee and that who had filed the present appeal. The reasons explained in the affidavit does not inspire our confidence as the same is seems to be afterthought story of assessee. Therefore, the delay in filing the appeal is not condoned resultantly, the appeal is not admitted for hearing and dismissed in limine. 7. In the result, this appeal of the assessee is dismissed. 8. Now we take ITA No. 408/Srt/2019 for A.Y. 2011-12. In this appeal, the assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in imposing penalty of Rs. 65,71,72,649/- u/s 271(10(c) of the IT Act, 1961.” 9. We find from perusal of record that the impugned order was passed by the ld. CIT(A) on 23/03/2018, however, the appeal was filed before the Tribunal on 29/08/2019. Thus, there is delay of 464. ITA No. 408 & 409/SRT/2019 Shri Dhaval Govindbhai Patel Vs ITO 5 10. The assessee has contended similar contents in his affidavit for condonation of delay, as contended in ITA No. 409/Srt/2019, which we have already dismissed. Therefore, the application for condonation of delay in filing of this appeal is also dismissed with similar observation. In the result, the appeal of the assessee is dismissed in limine. 11. In the result, both the appeals of the assessee are dismissed. Order pronounced on 13/10/2022, in open court at the time of hearing. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 13/10/2022 *Ranjan Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order Sr. Pvt. Secretary, ITAT, Surat