Shri Devkinandan Harikisan Harnani, (HUF), V. Income-tax Officer,

ITA 517/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1026 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Keywords: Period of limitation; Cost of acquisition; Time period of passing order; Condonation of delay
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 517 /PN/201 4 / ASSESSM ENT YEAR : 20 0 6 - 0 7 SHRI DEVKINANDAN HARIKISAN KARNANI (HUF), 92, F. F GOLANI MARKET, JALGAON 425001 . / APPELLANT PAN: A A EBO0886M VS. THE INCOME TAX OFFICER , WARD 1(2), JALGAON . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / DATE OF HEARING : 01 . 0 9 .201 6 / DATE OF PRONOUNCEMENT: 09 . 0 9 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - II , NASHIK , DATED 29 . 07 .20 1 1 RELATING TO ASSESSMENT YEAR 20 06 - 07 AGAINST ORDER PASSED UNDER SECTION 1 4 3(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING CONCISE GROUNDS OF APPEAL : - ITA NO. 517 /PN/20 1 4 DEVKINANDAN HARIKISAN KARNANI 2 1) THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.13,49,225/ - UNDER THE HEAD 'SHORT TERM CAPITAL G A IN' AND DENYING THE EXEMPTION U/S 10(38) BY CONSIDERING THE SHARES PURCHASE CONTRACT NOTE DATED 26.05.04 AS NOT GENUINE, EVEN THOUGH THERE IS NO SUCH DIRECT, INDIRECT OR CORROBORATIVE EVIDENCE ON RECORD. 2) THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.13,49,225/ - UNDER THE HEAD 'SHORT TERM CAPITAL GAIN' AND DENYING THE EXEMPTION U/S 10(38) EVEN THOUGH COST OF ACQUISITION OF SAID SHARES WAS ACCEPTED AS SHOWN ON THE ACTUAL DATE OF PURCHASE BY THE APPELLANT AND APPEARING IN THE BALANCE SHEET OF EARLIER PREVIOUS YEAR I.E. A.Y. 2005 - 06. 3) THE CIT(A) GROSSLY ERRED IN TREATING THE SAID SURPLUS ON SALE OF SHARES AS 'SHORT TERM CAPITAL GAIN' INSTE AD OF 'LONG TERM CAPITAL GAIN' BY TREATING DATE OF TRANSFER OF SHARES TO DE - MAT ACCOUNT I.E. 18.08.05 AS DATE OF ACQUISITION OF SHARES. 3. THE APPEAL WAS FIXED FOR HEARING BY THE REGISTRY AND DEFECT NOTICE WAS ISSUED TO THE ASSESSEE TO FILE AN AFFIDAVIT O N RS.100/ - NON - JUDICIAL STAMP PAPER ALONG WITH CONDONATION PETITION. THE PRESENT APPEAL FILED BY THE ASSESSEE IS TIME BARRED BY 892 DAYS. THE APPEAL WAS FIXED FOR HEARING ON 07.12.2015 AND AN UN - DATED LETTER WAS FILED BY THE ASSESSEE. THE ASSESSEE FILED AN APPLICATION SEEKING CONDONATION OF DELAY IN FILING THE APPEAL LATE ALONG WITH AFFIDAVIT OF SEEKING CONDONATION OF DELAY IN FILING THE APPEAL LATE ALONG WITH AFFIDAVIT OF ASSESSEE AND SOME OF THE MEDICAL REPORTS. THE MATTER WAS ADJOURNED TO 11.01.2016. THE ASSESSEE ALSO FILED PAPER BOOK BY POST WHICH WAS RECEIVED ON 12.02.2016 A ND WAS PLACED ON RECORD. THE COPY OF PAPER BOOK WAS HANDED OVER TO THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND THE MATTER WAS ADJOURNED TO 13.04.2016. ON 13.04.2016, ONE COUNSEL APPEARED FOR THE ASSESSEE AND HE WAS DIRECTED TO FILE CONCIS E GROUNDS OF APPEAL AND THE HEARING WAS ADJOURNED TO 14.06.2016. SHRI VINAY KAWADIYA, T HE COUNSEL FOR THE ASSESSEE APPEARED ON 14.06.2016 AND REQUESTED FOR ADJOURNMENT TO 15.06.2016, ON WHICH DATE, HE WAS DIRECTED TO FILE MEDICAL DOCUMENTS FOR CONDONATION OF DELAY IN FILING THE APPEAL LATE BEFORE THE TRIBUNAL. THEREAFTER, THE MATTER WAS FIXED ON 30.06.2016, ON WHICH DATE, NONE APPEARED ON BEHALF OF THE ASSESSEE AND NOTICE WAS ISSUED ON 30 .06.2016 AND AFTER THAT ITA NO. 517 /PN/20 1 4 DEVKINANDAN HARIKISAN KARNANI 3 ON 09.08.2016 AND FINALLY ON 01.09.2016. ON NONE OF THE DATES, ANYONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT AND ON EACH OF THE DATES . N OTICE WAS ISSUED TO THE ASSESSEE BY POST WHICH REMAINED UN - COMPLIED WITH. THEREFORE, THE APPEAL IS BEING DECIDED EXPART E THE ASSESSEE , AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE . 4. THE FIRST ASPECT OF THE APPEAL IS ITS MAINTAINABILITY, SINCE THE SAME WAS FILED AFTER DELAY OF 892 DAYS I.E. 29 MONTHS AND 11 DAYS . UNDER THE PROVISIONS OF INCOME T AX ACT, THE ASSESSEE IS TO FILE APPEAL WITHIN PERIOD OF 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF CIT(A). THE PERUSAL OF APPLICATION FILED BY THE ASSESSEE REFLECTS THAT THE ASSESSMENT IN THE CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT BY THE ASSESSING OFFICER VIDE ORDER DATED 24.12.2008. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN DENYING EXEMPTION UNDER SECTION 10(38) OF THE ACT WAS CONFIRMED BY THE CIT(A) VIDE ORDER DATED 29.07.2011. THE ASSESSEE CONFIRMS THAT THE ORDER OF CIT(A), N ASHIK WAS RECEIVED BY IT ON 05.08.2011. HE FURTHER ADMITS THAT HIS CONSULTANT ADVISED HIM TO CHALLENGE THE SAID ORDER BEFORE PUNE BENCH OF TRIBUNAL BY FILING AN APPEAL BUT THE ASSESSEE CLAIMS THAT HE WAS UNDER DISTURBED STATE OF MIND DUE TO SERIOUS ILLNES S OF HIS FATHER, WHO WAS AGED ABOUT 75 YEARS AND WAS RESIDING AT DUNGARGARH, DIST. BIKANER, RAJASTHAN AND WAS UNDERGOING TREATMENT AT JA IPUR . HE SAYS THAT REPEATEDLY HE TRAVELLED FROM JALGAON - DUNGARGARH - JAIPUR, TO AND FRO . UNDER THE SAID TENSION AND DIST URBED STATE OF MIND, HE CLAIMS THAT THE APPEAL REMAINED TO BE FILED BEFORE THE TRIBUNAL. THE ASSESSEE CLAIMS THAT THE PRESENT APPEAL WAS FILED AFTER DELAY OF 29 MONTHS AND 11 DAYS. ACCORDING TO HIM, THE DELAY WAS DUE TO THE CIRCUMSTANCES BEYOND HIS CONTR OL AND THEREFORE, ITA NO. 517 /PN/20 1 4 DEVKINANDAN HARIKISAN KARNANI 4 A REQUEST WAS MADE TO CONDONE THE DELAY. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT POINTING OUT THE SAID ASPECTS. THE ASSESSEE HAS ENCLOSED THE MEDICAL PRESCRIPTIONS OF HIS FATHER, WHICH ARE DATED 26.05.2011, 28.05.2011 AND THEN ON 12.04 .2012 AND 09.06.2013. THE COUNSEL WHO HAD APPEARED FOR THE ASSESSEE ON ONE OF THE DATES OF HEARING WAS ASKED TO JUSTIFY THE REASONS FOR DELAY FROM DATE TO DATE. HOWEVER, NO EXPLANATION HAS BEEN FILED BY THE ASSESSEE. THE PERUSAL OF RECORD SHOWS THAT ON 28.05.2011, THE FATHER OF ASSESSEE HAD UNDERWENT SEVERAL MEDICAL PATHOLOGICAL TESTS AND THEREAFTER, ALL THESE TESTS WERE CARRIED OUT ON 13.04.2012. THE ASSESSEE HAD ADMITTEDLY, RECEIVED THE APPELLATE ORDER ON 05.08.2011 AND THE ASSESSEE HAS FAILED TO EXPL AIN THE SAID DELAY, SINCE THE FIRST SET OF MEDICAL EXAMINATIONS WERE ON 28.05.2011 WHICH WAS BEFORE THE RECEIPT OF APPELLATE ORDER AND THE SECOND SET OF MEDICAL EXAMINATIONS WERE ON 13.04.2012, WHICH WAS BEYOND THE PERIOD OF 60 DAYS PROVIDED UNDER THE ACT TO FURNISH APPEAL BEFORE THE TRIBUNAL. THE COUNSEL APPEARING FOR THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN THIS AND AFTER SEEKING ADJOURNMENT, NONE APPEARED ON BEHALF OF THE ASSESSEE TO EXPLAIN THE SAID DISCREPANCY. IN VIEW THEREOF, THERE IS NO MERI T IN THE CONDONATION APPLICATION MOVED BY THE ASSESSEE AS THE ASSESSEE HAS FAILED TO JUSTIFY THE REASONS FOR DELAY IN FURNISHING THE APPEAL AFTER RECEIVING THE ORDER ON 05.08.2011. MERELY BECAUSE THE FATHER OF ASSESSEE HAD UNDERWENT CERTAIN MEDICAL EXAMIN ATIONS ON 13.04.201 2 DOES NOT EXPLAIN THE DELAY IN NOT FILING THE APPEAL IN TIME AS THE SAID APPEAL WAS TO BE FILED BY 05.10.2011, WHICH WAS MUCH BEFORE THE DATES OF MEDICAL EXAMINATIONS OF THE FATHER OF ASSESSEE. ACCORDINGLY, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED FOR BEING FILED BEYOND THE LIMITATION PERIOD. SINCE THE APPEAL IS BEING DISMISSED IN LIMINE ON ITA NO. 517 /PN/20 1 4 DEVKINANDAN HARIKISAN KARNANI 5 MAINTAINABILITY, THERE IS NO MERIT IN ISSUES RAISED BY THE ASSESSEE IN THE SAID APPEAL AND THE SAME ARE DISMISSED. 5 . IN THE RESULT, THE APPE AL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 9 TH DAY OF SEPTEMBER , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 9 TH SEPTEMBER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RE SPONDENT; 3. ( ) / THE CIT(A) - II , NASHIK ; ( ) 4. / THE CIT - II, NASHIK ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRU E COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE