Shri Himatlal Arajanbhai Patel, JUNAGADH V. The Income Tax Officer, Ward-1(2), RAJKOT-GUJARAT

ITA 489/RJT/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9031 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 09-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay
• Section: 143(3); 142(1); 68; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER (1) ./ I.T.A. NO. 489/RJT/2013 FOR A.Y. 2005-06 (2) ./ I.T.A. NO. 490/RJT/2013 FOR A.Y. 2005-06 (3) ./ I.T.A. NO. 491/RJT/2013 FOR A.Y. 2006-07 (4) ./ I.T.A. NO. 492/RJT/2013 FOR A.Y.2007-08 SHRI HIMATLAL ARJANBHAI PATEL PROP. M.H. MARKETING ASHOK NAGAR SOCIETY, JUNAGADH / VS. INCOME TAX OFFICER, WARD-1(2), RAJKOT. ./ ./ PAN/GIR NO. : AGYPP 0215 G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI M. J. RANPURA, A.R. RE VENUE BY : SHRI C. S. ANJARIA, SR. D.R. / DATE OF HEARING 15/03/2017 !' / DATE OF PRONOUNCEMENT 31/05/2017 #$ / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THESE ARE FOUR APPEALS IN ITA NO. 489, 490, 491 & 4 92/RJT/2013 FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDERS O F THE COMMISSIONER OF INCOME TAX(APPEALS)-II, RAJKOT (IDENTICALLY DATED 3 0/10/2013) PERTAINING TO ASSESSMENT YEARS (AYS) 2005-06, 2005- 06, 2006-07 & ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 2 - 2007-08 RESPECTIVELY. THESE APPEALS WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. GROUNDS OF APPEAL BY THE ASSESSEE IN ITA NO.489/ RJT/2013 FOR A.Y. 2005-06: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT (HEREINAFTER REFERRED TO AS THE 'CIT(A)') WAS NOT J USTIFIED IN DISMISSING THE APPEAL EX-PARTE ON THE GROUND OF NON -PROSECUTION. II. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN NOT CONDONING THE DELAY IN FILING OF APPEAL IN-SPITE OF FURNISHING SU FFICIENT CAUSE AND THEREBY NOT ADMITTING THE APPEAL. III. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW I N SUMMARILY CONFIRMING THE ADDITIONS AND DISALLOWANCES MADE BY THE AO. IV. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING ADDITION OF RS. 92,631/- MADE BY ESTIMATING GROSS P ROFIT @ 0.51 AS AGAINST ACTUAL 034% AND DISALLOWING 25% OF EXPEN SES. THE ADDITION MAY KINDLY BE DELETED. V. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING ADDITION MADE U/S. 68 OF THE ACT OF RS.70,52,100/- BEING UNSECURED LOANS TAKEN FROM FOLLOWING DEPOSITORS. TH E ADDITION MAY KINDLY BE DELETED: SR. NO PARTICULARS AMOUNT(RS.) 1 KAMLESH RAIYANI 13,50,000/- 2 KRISHNA INDUSTRIES 57,02,100/- TOTAL 70,57,100/- VI. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING ADDITION MADE U/S. 68 OF THE ACT OF RS.70,000/- BEI NG CASH ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 3 - DEPOSITED IN BANK ACCOUNT HELD WITH CO-OPERATIVE BA NK OF RAJKOT LTD. THE ADDITION MAY KINDLY BE DELETED. 3. GROUNDS OF APPEAL IN ITA NO.490/RJT/2013 FOR A.Y . 2005-06: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT (HEREINAFTER REFERRED TO AS THE 'CIT(A)') WAS NOT J USTIFIED IN DISMISSING THE APPEAL EX-PARTE ON THE GROUND OF NON -PROSECUTION. II. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN NOT CONDONING THE DELAY IN FILING OF APPEAL IN-SPITE OF FURNISHING SU FFICIENT CAUSE AND THEREBY NOT ADMITTING THE APPEAL. III. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN SUM MARILY CONFIRMING THE LEVY OF PENALTY. IV. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING THE LEV Y OF PENALTY U/S. 271(1)(C) OF THE ACT AT RS.22,19,909/-THE PENALTY L EVIED U/S. 271(1)(C) OF THE ACT IS TOTALLY UNJUSTIFIED ON FACT S AS ALSO IN LAW, MAY KINDLY BE DELETED. 4. GROUNDS OF APPEAL IN ITA NO.491/RJT/2013 FOR A.Y .2006-07: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT (HEREINAFTER REFERRED TO AS THE 'CIT(A)') WAS NOT J USTIFIED IN DISMISSING THE APPEAL EX-PARTE ON THE GROUND OF NON -PROSECUTION. II. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN NOT CONDONING THE DELAY IN FILING OF APPEAL IN-SPITE OF FURNISHING SU FFICIENT CAUSE AND THEREBY NOT ADMITTING THE APPEAL. III. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN SUM MARILY CONFIRMING THE ADDITIONS AND DISALLOWANCES MADE BY THE AO. IV. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CON FIRMING ADDITION MADE U/S. 68 OF THE ACT OF RS.4,96,53,884/- BEING U NSECURED LOANS TAKEN FROM FOLLOWING DEPOSITORS. THE ADDITION MAY K INDLY BE DELETED; ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 4 - SR.NO. PARTICULARS AMOUNT(RS.) 1 KRISHNA INDUSTRIES 49,00,000/- 2 DIXA PROTEINS 15,69,707/- 3 GOPINATH IMPEX 1,74,35,377/- 4 MARUTI INDUSTRIES 1,03,74,294/- 5 SWAMI PROTEINS 1,18,34,369/- 6 TRILOK INDUSTRIES 3,54,01,37/- TOTAL 4,96,53,884/- V. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CON FIRMING ADDITION MADE U/S. 68 OF THE ACT OF RS.35,00,000/- BEING CAS H DEPOSITED IN BANK ACCOUNT HELD WITH CO-OPERATIVE BANK OF RAJKOT LTD. THE ADDITION MAY KINDLY BE DELETED. 5. GROUNDS OF APPEAL IN ITA NO.492/RJT/2013 FOR A.Y . 2007-08: I . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT (HEREINAFTER REFERRED TO AS THE 'CIT(A)') WAS NOT J USTIFIED IN DISMISSING THE APPEAL EX-PARTE ON THE GROUND OF NON -PROSECUTION. II. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN NOT CONDONING THE DELAY IN FILING OF APPEAL IN-SPITE OF FURNISHING SU FFICIENT CAUSE AND THEREBY NOT ADMITTING THE APPEAL. III. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW I N SUMMARILY CONFIRMING THE ADDITIONS AND DISALLOWANCES MADE BY THE AO. IV. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING ADDITION MADE U/S.68 OF THE ACT OF RS.4,96,53,884/- BEING UNSECURED LOANS TAKEN FROM FOLLOWING DEPOSITORS. TH E ADDITION MAY KINDLY BE DELETED; SR.NO. PARTICULARS AMOUNT(RS.) 1. KRISHNA INDUSTRIES 1,14,588/- ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 5 - 2. DIXA PROTEINS 16,43,943/- TOTAL 17,58,531/- V. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CON FIRMING ADDITION MADE U/S. 68 OF THE ACT OF RS.1,40,25,000/ - BEING CASH DEPOSITED IN BANK ACCOUNT HELD WITH COOPERATIVE BAN K OF RAJKOT LTD. THE ADDITION MAY KINDLY BE DELETED. VI. THE ID. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CON FIRMING ADDITION MADE OF RS.2,47,09,499/- BEING AMOUNT OUTS TANDING TOWARDS SUNDRY CREDITORS. THE ADDITION MAY KINDLY B E DELETED; SR.NO. PARTICULARS AMOUNT (RS.) 1 GUNJAN ENTERPRISE 49,52,492/- 2 KRISHNA INDUSTRIES 24,32,950/- 3 MARUTI INDUSTIRES 28,83,794/- 4 NILAM SALES CORPORATION 1,44,40,263/- TOTAL 2,47,09,499/- VII. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CON FIRMING THE DISALLOWANCE OF RS.8,760/- BEING 20% OF OFFICE EXPE NSES, TELEPHONE EXPENSES AND TRAVELLING EXPENSES MADE ON THE ALLEGED GROUND OF PERSONAL USE. THE DISALLOWANCE MAY KINDLY BE DELETED. 6. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- ASSESSEE HAS FILED HIS RETURN OF INCOME FOR A.Y. 20 05-06 ALONG WITH AUDIT REPORT IN FORM NO.3GB & 3CD VIDE ACKNOWLEDGME NT NO.06589 DATED 15-09-2005 DECLARING TOTAL INCOME OF RS.1,10, 960/-. THE RETURN OF INCOME WAS PROCESSED U/S. 143(1) OF THE IT ACT, 196 1 ON 13-02-2006. ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 6 - THE RETURN WAS SELECTED FOR REGULAR ASSESSMENT U/S. 143(3) OF THE IT ACT BY ISSUING A NOTICE U/S.143(2) OF THE IT ACT ON 15- 09-2006 AND SERVED UPON THE ASSESSEE. THEREAFTER, A NOTICE U/S. 143(2) OF THE IT ACT, 1961 ALONG WITH LETTER DATED 10-07-2007 ISSUED TO THE AS SESSEE ON 10-07-2007 THROUGH RPAD BUT THE SAME WAS RETURNED UNSERVED WIT H THE REMARKS THAT THERE WAS NO ONE IN THE GIVEN ADDRESS ANOTHER NOT ICE U/S. 142(1) WAS ISSUED ON 05-09-2007 AND SENT THROUGH RPAD BUT THE SAME WAS RETURNED UNSERVED. THEREAFTER, NOTICE U/S.142(1) OF THE IT A CT, 1961 WERE ISSUED ON 10-07-2007 AND 11-10-2007 AND SENT THROUGH RPAD BUT THAT NOTICES RETURN UNSERVED. THEREFORE, FINAL NOTICE U/S. 142(1 ) OF THE IT ACT, 1961 WAS ISSUED TO THE ASSESSEE ON 26/11/2007 REQUIRING HIM TO PRODUCE DETAILS AND BOOKS OF ACCOUNTS AND VOUCHERS ON OR BEFORE 04/ 12/2007. THIS NOTICE WAS SERVED UPON YOU ON 28/11/2007. BUT AGAIN THERE WAS NO COMPLIANCE FROM THE ASSESSEE. THEREFORE, A SHOW CAUSE NOTICE W AS ISSUED TO THE ASSESSEE ON 20/12/2007 AND SHRI SUKETU BHATT, INSPE CTOR WAS DIRECTED TO GET THIS NOTICE SERVED. HE HAS STATED VIDE HIS LETT ER THAT THE ASSESSEE HAS DENIED ACCEPTING THE NOTICE. THUS, IT WAS EVIDENT THAT THE ASSESSEE HAS NOT CARE D TO COMPLY ANY LETTERS OR NOTICES ISSUED BY THE DEPARTMENT HENCE H E HAS FAILED TO DISCHARGE HIS STATUTORY OBLIGATIONS. UNDER THE CIRC UMSTANCE, AO HAS NO OPTION BUT TO FINALIZE THE ASSESSMENT PROCEEDINGS U /S. 144 OF THE IT ACT, 1961 TO THE BEST OF MY JUDGMENT AND MATERIALS AVAIL ABLE ON THE RECORDS. ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 7 - 7. IN ALL THE FOUR APPEALS, LEARNED AO SENT SEVERAL NOTICES TO THE ASSESSEE BUT NONE ATTENDED BEFORE THE LEARNED CIT(A )-II, RAJKOT. SHRI D.R. ADHIA, ITP & AR OF THE APPELLANT VIDE HIS LETT ER DTD. 24/01/2010 RAISED FOLLOWING ADDITIONAL GROUND OF APPEAL: WITHOUT PREJUDICE, THE LEARNED ITO, WARD 1(2), RAJ KOT (SHRI P. N. BOKADE) HAS ERRED IN LAW AND FACTS IN PASSING THE A SSESSMENT ORDER ON 24/12/2007 U/S.144 IN NOT PROVIDING OPPORTUNITY TO THE APPELLANT TO APPROACH U/S. 144A TO THE LEARNED ADDL. CIT, RANGE- 1, RAJKOT, UNDER WHOM THE LEARNED AO IS WORKING AND THEREFORE, THE A SSESSMENT ORDER PASSED IS BAD IN LAW NEEDS ANNULMENT. BUT APART FROM THIS DATE NONE APPEARED BEFORE THE L EARNED CIT(A) AND FIRST APPEAL WAS ALSO DELAYED BY 255 DAYS AND A S PER THE LEARNED CIT(A), THERE WAS NO COGENT REASON WAS GIVEN BY THE ASSESSEE AND HELD THAT APPELLANT IS A HABITUAL NON-COOPERATOR AND THE ONLY INTENTION APPEARS TO BE USING THE DELAY TACTICS. A TIME OF ALMOST FIV E YEARS HAS ELAPSED IN THE INSTITUTION OF APPEAL DURING WHICH NOT AN IOTA OF EVIDENCE OR SUBMISSION HAS BEEN FILED BY THE APPELLANT. EVEN AF TER RECEIVING THE FINAL NOTICE, THE APPELLANT WANTS NINE MONTHS TIME. THIS CANNOT BE ALLOWED TO CONTINUE AD INFINITUM AND DISMISSED THE APPEAL OF T HE ASSESSEE AND DELAY WAS NOT CONDONED. 8. WE HAVE GONE THROUGH THE RECORD AND IMPUGNED ORD ER AND NOTICED THAT CIT(A) HAS DECLINE TO ENTERTAIN THE PETITION F OR CONDONATION OF DELAY IN FILING APPEAL BEFORE HIM. THE DELAY IS OF SUBSTA NTIAL PERIOD OF 255 DAYS THE CIT(A) HAS ALLEGED THAT ASSESSEE HAS MERELY PLE ADED THAT THE ASSESSEE PREVENTED BY A REASONABLE CAUSE FOR FILING APPEAL O N TIME. HOWEVER, NO ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 8 - CAUSE HAS BEEN APPARENTLY SHOWN TO THE CIT(A), IN T ERMS OF SECTION 249(3) OF THE IT ACT. THE CIT(A) HAS DEALT WITH THE ISSUE AT LENGTH FOR THE SAKE OF COMPLETENESS AND THE RELEVANT OPERATIVE PARA NO. 3.0 OF THE CIT(A) IS REPRODUCED HEREUNDER: 3.1 THE ITO, WARD-1(2), RAJKOT, VIDE HIS APPEAL AD MISSIBILITY REPORT DT.29/10/2013 (VIDE HIS FORWARDING LETTER NO.ITO/WD.1(2)/HAP/13-14, DT.29/10/2013, WHICH WAS RECEIVED IN THIS OFFICE ON 29/10/2013) HAS REPORTED THAT THE NOTICE OF DEMAND WAS SERVED ON 19/02/2008. THEREFORE, THE APPEAL, IF ANY, OUGHT TO HAVE BEEN FILED BY THE APPELLANT ON OR BEFORE 20/03/2008, WHEREAS THE SAME IS FILED IN THE O/O. THE CIT(A)-I, RAJKOT ON 21/11/2008, I.E. WITH A DELAY OF ABOUT 255 DAYS. THE APPELLANT, VIDE LETTER DT.21/11/2008, HAS SIMPLY STATED THAT HE WAS PREVENTED BY REASONABLE CAUSE AND THEREFORE THE DELAY MAY KINDLY BE CONDONED. 9. EVEN BEFORE US THE ASSESSEE COULD NOT EXPLAIN TH E DELAY IN FILING THE APPEAL. COUPLED WITH THIS, WE FIND THAT ASSESSE E HAS NOT APPEARED BEFORE THE ASSESSING OFFICER AND NOTICE SERVED UPON HIM FROM TIME TO TIME REMAINED UNCOMPLIED. NEEDLESS TO SAY THE STATU TORY LIMITATION PERIOD ARE REQUIRED TO BE FOLLOWED STEAD FASTLY. AN Y DELAY IN NON- COMPLIANCE OF THE STATUTORY PERIOD FOR FILING OF AP PEAL IS REQUIRED TO BE BACKED BY SUFFICIENT CAUSE AS PROVIDED U/S. 249(3) OF THE IT ACT. 10. IN THE INSTANT CASE, NO CAUSE FAR LESS SUFFICIE NT CAUSE HAS BEEN DEMONSTRATED BY THE ASSESSEE. THE ASSESSEE FOUND TO BE INDOLENT IN COMPLIANCE ALL ALONG. THEREFORE, WE FIND NO ERROR I N THE ORDER PASSED BY THE CIT(A) IN EXERCISING HIM DISCRETION TO REFUSE A DMISSION OF BELATED APPEAL. ITA NOS.489, 490, 491 & 492-RJT-2013 SHRI HIMATLAL ARJANBHAI PATEL VS. ITO - 9 - 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE DISM ISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/05/2017 SD/- SD/- IZNHI DQEKJ IZNHI DQEKJ IZNHI DQEKJ IZNHI DQEKJ DSFM;K DSFM;K DSFM;K DSFM;K EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRADIP KUMAR KEDIA) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/05/2017 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. % &' ( / CONCERNED CIT 4. ( () / THE CIT(A)-II, RAJKOT. 5. +,- ..&' , &'' , 01#%# / DR, ITAT, AHMEDABAD 6. -23 4 / GUARD FILE. / BY ORDER, + . //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !' #, / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 24/05/2017 (DICTATION-PAD 4 PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 26/05/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 26/05/2017 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/0 5/2017 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER