AMIT KUNDANMALJI KOTHARI, MUMBAI V. ITO 24(1)(3), MUMBAI

ITA 4994/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3657 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Assessee Lawyers: KAUSHAL SHAH
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay
• Section: 80C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI SANJAY ARORA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 4994/MUM/2013 ASSESSMENT YEAR: 2007-08 SHRI. AMIT KUNDANMALJI KOTHARI, 145/1, J.B DNLMA CHAWL, ORLEM, MARVE ROAD, MUMBAI- 400064. PAN- AGZPK5104E VS. THE ITO 24(1)(3), C-13, 5 TH FLOOR, PRATYAKSHAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI- 400051. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. KAUSHAL SHAH. RESPONDENT BY : SHRI. R.P.RASTOGI DATE OF HEARING: 03/05/2016 DATE OF PRONOUNCEMENT: 20/05/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST ORDER DATED 30/05/2012 PASSED BY LD CIT(A)-34, MUMBAI FOR THE A SSESSMENT YEAR 2007- 08. 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER O N THE FOLLOWING EFFECTIVE GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE DISALLOWANCE M ADE BY THE ASSESSING OFFICER TOWARDS PURCHASE OF RS. 3,32,114/- DUE TO N ON FURNISHING OF AUTHENTICATE VOUCHERS AND PAYMENTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE DISALLOWANCE M ADE BY THE ASSESSING 2 ITA NO. 4994/MUM/2013 ASSESSMENT YEAR: 2007-08 OFFICER TOWARDS BUSINESS PROMOTION EXPENSES OF RS. 15,000/- DUE TO NON FURNISHING OF VOUCHERS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE DISALLOWANCE M ADE BY THE ASSESSING OFFICER TOWARDS INTEREST ON LOAN OF RS. 59,255/- ON ACCOUNT OF HIGH RATE OF INTEREST COMPARED TO MARKET INTEREST RATE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE DISALLOWANCE M ADE BY THE ASSESSING OFFICER TOWARDS SHOP INSURANCE OF RS. 16,686/- DUE TO NON FURNISHING OF INSURANCE RECEIPT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE DISALLOWANCE M ADE BY THE ASSESSING OFFICER TOWARDS BENEFIT CLAIMED U/S 80C OF RS. 21,1 55/- DUE TO NON FURNISHING OF EVIDENCE. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 52,413/- ON ACCOUNT OF LOW WITHDRAWA LS FOR HOUSEHOLD EXPENSES. 3. THIS CASE WAS FIXED FOR HEARING ON 03.05.16. SHR I KHUSHAL SHAH, PARTNER MODI MEHTA & ASSOCIATES LLP CHARTERED ACCOUNTANTS, SOUGHT ADJOURNMENT ON THE GROUND THAT THE AUTHORIZED REPRESENTATIVE IS OU T OF STATION. WE NOTICE THAT INITIALLY THIS CASE WAS FIXED FOR HEARING ON 27/10/ 2014. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE. HEARING WAS ACC ORDINGLY ADJOURNED TO 31.3.2015 AND THE NOTICE WAS SENT TO THE ASSESSEE T HROUGH REGISTERED POST WITH ACKNOWLEDGE DUE (RPAD). AGAIN ON 31.03.15 NONE APPE ARED ON BEHALF OF THE ASSESSEE. THE CASE WAS ADJOURNED TO 07.10.15 BY WAY OF LAST OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND NOTICE TO THIS EFFE CT WAS ISSUED TO THE ASSESSEE THROUGH RPAD. ON 07.10.15 NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED. IN THE INTEREST OF JUSTICE THE CASE WAS ADJOURNED ONCE AGAIN TO 03.05.2016 AND NOTICE THROUGH RPAD SERVED UPON THE ASSESSEE. FROM 3 ITA NO. 4994/MUM/2013 ASSESSMENT YEAR: 2007-08 THE CONDUCT OF THE ASSESSEE IT APPEARS THAT THE ASS ESSEE IS NOT SERIOUS AND DOES NOT INTEND TO PURSUE HIS APPEAL. DESPITE SEVER AL ADJOURNMENTS GRANTED WITH A VIEW TO ENABLE THE ASSESSEE TO PRESENT HIS C ASE, ALLOWING AN OPPORTUNITY SUBSEQUENT TO A FINAL OPPORTUNITY ON AN EARLIER O CCASION, THE ASSESSEE HAS FAILED TO AVAIL THE SAME. SINCE THE ASSESSEE HAS BE EN ALLOWED ABUNDANT OPPORTUNITY BY THE TRIBUNAL, THE ASSESSEES APPLICA TION FOR GRANT OF ADJOURNMENT WAS REJECTED BY THE BENCH SO THAT THE H EARING IN THE MATTER WAS PROCEEDED WITH. 4. AT THE VERY OUTSET, THE LD. DEPARTMENTAL REPRES ENTATIVE (DR) POINTED OUT THAT THE PRESENT APPEAL IS BARRED BY THE LAW OF LIM ITATION AS THERE IS AN INORDINATE DELAY OF 338 DAYS IN FILING THE PRESENT APPEAL AND THE APPELLANT HAS EVEN NOT FILED ANY APPLICATION FOR CONDONATION OF D ELAY. THEREFORE, THE ASSESSEES APPEAL IS NOT MAINTAINABLE. ON THE OTHE R HAND, THE LD. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THE DELAY WAS CA USED DUE TO THE REASONS MENTIONED IN THE AFFIDAVIT SUBMITTED BY THE ASSESSE E. THE REASONS MENTIONED IN THE AFFIDAVIT ARE SUFFICIENT TO CONDONE THE DELA Y, WHICH MAY, THEREFORE, BE CONDONED AND THE APPEAL HEARD ON MERITS. 5. WE NOTICE THAT THE ASSESSEE HAS FILED AN AFFIDAV IT (NOT ATTESTED BY ANY AUTHORITY) STATING THAT THE PAPERS FOR FILLING APPE AL BEFORE THE ITAT WERE HANDED OVER TO A TAX PROFESSIONAL. THE TAX PROFESSIONAL MI XED UP THE APPEAL PAPERS WITH THE OTHER PAPERS IN HIS OFFICE, DUE TO WHICH T HE APPEAL COULD NOT BE FILED WITHIN THE LIMITATION PERIOD. 6. AS PER THE SETTLED LAW, IN ORDER TO CLAIM CONDO NATION OF DELAY, THE APPELLANT MUST SHOW THAT HE WAS DILIGENT ALL ALONG IN TAKING APPROPRIATE STEPS AND THE DELAY WAS CAUSED DESPITE HIS DUE DILIGENCE. WHEN THE APPELLANT HAS BEEN NEGLIGENT, NOT TAKING NECESSARY STEPS FOR PURS UING HIS REMEDY BEFORE THE CLOSING OF THE LIMITATION PERIOD PRESCRIBED, HE MUS T BE PREPARED TO HAVE HIS 4 ITA NO. 4994/MUM/2013 ASSESSMENT YEAR: 2007-08 REMEDY BARRED WITHOUT EXPECTING CONDONATION. IN THE PRESENT CASE, THE ASSESSEE HAS NEITHER DISCLOSED THE NAME OF THE TAX PROFESSIONAL TO WHOM HE STATES TO HAVE HANDED OVER THE APPEAL PAPERS FOR FI LING APPEAL NOR ANY TAX PROFESSIONAL HAS SWORN AFFIDAVIT TO THIS EFFECT. FU RTHER, WHEN WERE THE APPEAL PAPERS HANDED OVER TO THE COUNSEL, AND HOW AND UNDE R WHAT CIRCUMSTANCES WERE THEY RECOVERED, IS NOT EXPLAINED; RATHER, NOT EVEN REFERRED TO. WHO, ULTIMATELY, FILED THE APPEAL MEMO IS ALSO NOT DIVUL GED. IN OUR VIEW, THE AFFIDAVIT MUST HAVE BEEN SUBMITTED BY THE CONCERNED TAX PROFE SSIONAL WHO COULD NOT FILE THE PRESENT APPEAL WITHIN THE LIMITATION PERIOD. TH E ASSESSEE HAS THUS FAILED TO SHOW SUFFICIENT CAUSE FOR CONDONATION OF DELAY OF 3 38 DAYS. WE, THEREFORE, DISMISS THE REQUEST OF THE APPELLANT/ASSESSEE FOR C ONDONATION OF UNEXPLAINED AND INORDINATE DELAY. THE PRESENT APPEAL IS ACCORDI NGLY DISMISSED IN LIMINE BEING BARRED BY LIMITATION. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE FOR THE ASST. YEAR 2007-08 IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MAY, 2016 SD/- SD/ - ( SANJAY ARORA ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 20 /05/2016 5 ITA NO. 4994/MUM/2013 ASSESSMENT YEAR: 2007-08 / 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. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA