Jitendra Shivprasad Dave, Ahmedabad V. ITO, Ward-5(2)(1), Ahmedabad

ITA 503/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2296 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: S N DIVATIA
• Keywords: Principle of natural justice; Condonation of delay
• Section: 147; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 503/AHD/2019 / ASSTT. YEAR: 2010-11 JITENDRA SHIVPRASAD DAVE, 23, VISHRAM APARTMENT, NR. R C PATEL SCHOOL, VASNA, AHMEDABAD. PAN: ADYPD5419M VS. I.T.O, WARD-5(2)(1), AHMEDABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVATIA, A.R REVENUE BY : SHRI S.S. SHUKLA, SR.D.R /DATE OF HEARING : 11/10/2021 /DATE OF PRONOUNCEMENT: 25/10/2021 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, AHMEDABAD, DATED 28/01/2019 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HERE-IN-AFTER REFERRED TO AS 'THE ACT') RELEVANT TO THE ASSESSMENT YEAR 2010-11. ITA NO.503/AHD/2019 A.Y. 2010-11 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: THE ORDER PASSED U/S.250 ON 28.01.2019 FOR A.Y. 2010-11 BY CIT(A)-5, ABAD DISMISSING THE APPEAL ON THE GROUND OF LIMITATION BY REJECTING THE APPLICATION FOR CONDONATION OF DELAY IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. AT THE OUTSET WE NOTE THAT THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A) FOR 152 DAYS. THE ASSESSEE BEFORE THE LEARNED CIT(A) FURNISHED THE REASON FOR LATE FILING THE APPEAL BY STATING THAT HE MET WITH AN ACCIDENT AND THE DOCTOR ADVISED HIM FOR BED REST FOR 2 MONTHS. THEREFORE, THE DELAY OCCURRED IN FILING THE APPEAL. HOWEVER THE LEARNED CIT (A) WAS NOT SATISFIED WITH THE REASONS FOR FILING THE LATE APPEAL BY THE ASSESSEE BY OBSERVING THAT THE EXPLANATION WAS NOT CORROBORATED BASED ON ANY DOCUMENTARY EVIDENCE. THUS, THE APPEAL FILED BY THE ASSESSEE WAS NOT ADMITTED BY THE LEARNED CIT (A) AND CONSEQUENTLY THE APPEAL WAS DISMISSED. 4. BEING AGGRIEVED BY THE ORDER OF LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR BEFORE US SUBMITTED THAT THERE WAS SUFFICIENT CAUSE WHICH PREVENTED THE ASSESSEE FILING THE APPEAL BEFORE THE LEARNED CIT (A) WITHIN THE PRESCRIBED TIME. THEREFORE, THE APPEAL OF THE ASSESSEE DESERVES TO BE ADMITTED BY THE LEARNED CIT (A). ACCORDINGLY, THE LEARNED AR PRAYED BEFORE US TO DIRECT LEARNED CIT (A) TO ADMIT THE APPEAL AND ADJUDICATE THE ISSUE ON MERIT AS PER THE PROVISIONS OF LAW. 6. ON THE CONTRARY THE LEARNED DR OPPOSED THE CONTENTION OF THE LEARNED AR BY SUBMITTING THAT THE DELAY IN FILING THE APPEAL WAS NOT FURNISHED BASED ON COGENT MATERIAL BEFORE THE LEARNED CIT (A) BY THE ASSESSEE. THEREFORE, THE LEARNED CIT (A) RIGHTLY REJECTED THE APPEAL OF THE ASSESSEE. AS PER THE LEARNED DR THE ASSESSEE CANNOT TAKE THE RIGHT OF FILING THE APPEAL BEYOND THE TIME PRESCRIBED UNDER THE LAW ITA NO.503/AHD/2019 A.Y. 2010-11 3 UNTIL AND UNLESS THERE WAS SOME SUFFICIENT CAUSE. HENCE THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSAL OF THE ORDER OF THE AO WE FIND THAT THE CASE OF THE ASSESSEE WAS SELECTED UNDER SCRUTINY ON ACCOUNT OF INCOME ESCAPING ASSESSMENT UNDER THE PROVISIONS OF SECTION 147 OF THE ACT. THE ASSESSEE ALSO DID NOT APPEAR BEFORE THE AO. THEREFORE THE ASSESSMENT WAS FRAMED EX PARTE TO THE ASSESSEE DATED 24 DECEMBER 2017. LIKEWISE, THE APPEAL WASNT FILED BY THE ASSESSEE WITHIN THE TIME DESCRIBED UNDER SECTION 249(3) OF THE ACT BEFORE THE LEARNED CIT(A). AS SUCH THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT (A) BY 152 DAYS. THE ASSESSEE EXPLAINED THE REASONS FOR THE DELAY BUT THE SAME WAS NOT SUPPORTED BASED ON ANY DOCUMENTARY EVIDENCE. 7.1 EVEN AT THE TIME OF HEARING BEFORE US, THE LEARNED AR HAS NOT BROUGHT ANY COGENT MATERIAL SUGGESTING THAT THERE WAS SOME GENUINE DIFFICULTY WITH THE ASSESSEE IN FILING THE APPEAL BEFORE THE LEARNED CIT (A) WITHIN THE TIME PRESCRIBED UNDER THE ACT EXCEPT A BALD SUBMISSION AS DISCUSSED ABOVE. THUS, IF WE SEE ALL THESE FACTS IN AGGREGATION, IT SEEMS TO US THAT THE ASSESSEE HAD BEEN NEGLIGENT IN PURSUING ITS INCOME TAX PROCEEDINGS. ADMITTEDLY, THE ASSESSEE CANNOT TAKE IT AS A MATTER OF RIGHT FOR FILING THE APPEAL BEYOND THE PRESCRIBED TIME UNTIL AND UNLESS HE DISCHARGES HIS ONUS THAT THERE WAS SUFFICIENT CAUSE IN PRESENTING THE APPEAL WITHIN THE TIME. UNDENIABLY, THE ONUS LIES UPON THE ASSESSEE TO JUSTIFY THE DELAY PRESENTING THE APPEAL. 7.2 BE THAT AS IT MAY BE, THE REVENUE AUTHORITIES ARE ALSO UNDER THE OBLIGATION TO CHARGE THE TAX ON THE AMOUNT OF INCOME BASED ON THE DOCUMENTARY EVIDENCE DESPITE THE FACT THAT THE ASSESSEE DOESNT COOPERATE DURING THE PROCEEDINGS. NON- COOPERATION FROM THE SIDE OF THE ASSESSEE, DOES NOT AUTHORIZE THE REVENUE TO TREAT ANY AMOUNT OF TRANSACTION AS INCOME OF THE ASSESSEE. IN OTHER WORDS, THE REVENUE ITA NO.503/AHD/2019 A.Y. 2010-11 4 HAS TO BE VIGILANT ENOUGH WHILE CHARGING THE TAX ON THE INCOME THAT THERE SHOULD NOT BE INCLUDED ANY ITEM OF TRANSACTION WHICH IS NOT TAXABLE UNDER THE PROVISIONS OF THE ACT. INDEED, IN THE ABSENCE OF ACTIVE COOPERATION FROM THE SIDE OF THE ASSESSEE, IT WILL CERTAINLY BE DIFFICULT FOR THE REVENUE TO CALCULATE THE CORRECT INCOME OF THE ASSESSEE. BUT, IN OUR CONSIDERED VIEW THE ITEMS WHICH ARE APPARENTLY SUGGESTING NOT TO BE INCLUDED IN INCOME, SHOULD NOT BE CONSIDERED. 7.3 COMING TO THE FACTS OF THE CASE, WE NOTE THAT THERE WAS AN AIR INFORMATION SUGGESTING THAT THE ASSESSEE HAS MADE SHARES TRANSACTION OF 85,65,026.00 ONLY. BASED ON THIS AIR INFORMATION, THE PROCEEDINGS WERE INITIATED UNDER SECTION 147 OF THE ACT. IN THE FINAL ASSESSMENT, THE AMOUNT OF SHARE TRANSACTION WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE QUESTION ARISES WHETHER THE SHARE TRANSACTION OF 85,65,026.00 REPRESENTS THE INCOME OF THE ASSESSEE OR THE NET EFFECT OF SHARE TRANSACTION SHOULD BE TAKEN AS THE INCOME OF THE ASSESSEE. TO WORK OUT THE NET EFFECT OF SHARE TRANSACTION, THE AO WAS EMPOWERED UNDER THE PROVISIONS OF SECTION 131/133(6) OF THE ACT BY DIGGING OUT THE TRUTH FROM THE PARTIES/BROKERS/STOCK EXCHANGE WHERE THE ASSESSEE HAS CARRIED OUT SHARE TRANSACTIONS. BUT WE NOTE THAT THE AO HAS NOT DONE SO. 7.4 LIKEWISE WE ALSO NOTE THAT THE ASSESSEE IN THE STATEMENT OF FACTS FILED BEFORE THE LEARNED CIT (A) HAS CLEARLY STATED THAT THE AO HAS MADE ADDITION OF 85,65,026.00 REPRESENTING THE GROSS AMOUNT OF SHARES PURCHASED AND SALE IN INTRADAY DURING THE YEAR 2009-10. THIS INFORMATION WAS VERY MUCH AVAILABLE BEFORE THE LEARNED CIT (A). HOWEVER THE LEARNED CIT (A) HAS NOT TAKEN THE NOTE OF IT WHILE FRAMING THE ORDER. INDEED, THE LEARNED CIT (A) HAS BEEN EMPOWERED UNDER THE STATUTE TO REJECT THE APPEAL IF IT WAS FILED BEYOND THE PRESCRIBED TIME UNTIL AND UNLESS SUFFICIENT REASONS HAVE BEEN FURNISHED TO THIS EFFECT BY THE ASSESSEE. BUT AT THE SAME TIME THE LEARNED CIT (A) CANNOT ESCAPE FROM THE DUTIES OF CHARGING THE TAX ON THE CORRECT INCOME. IN OUR CONSIDERED VIEW, THE GROSS AMOUNT OF SHARE TRANSACTION CANNOT BE TREATED AS INCOME OF THE ASSESSEE. ITA NO.503/AHD/2019 A.Y. 2010-11 5 7.5 HOWEVER, IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE SHOULD NOT BE NEGLIGENT IN PURSUING THE INCOME TAX PROCEEDINGS. THEREFORE, WE ARE INCLINED TO IMPOSE SOME COST ON THE ASSESSEE. AS SUCH THE ASSESSEE IS DIRECTED TO DEPOSIT A SUM OF 1000 IN THE PRIME MINISTER RELIEF FUND WITHIN ONE MONTH AFTER THE SERVICE OF THE ORDER. 7.6 IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE FACTS IN TOTALITY AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE AO. ACCORDINGLY WE RESTORE THE APPEAL TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSE IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 25/10/2021 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 25/10/2021 MANISH