VIJAY KUMAR, MUMBAI V. ASST CIT CEN CIR 13, MUMBAI

ITA 5755/MUM/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9869 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 04-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 23-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Keywords: Gift; Condonation of delay
• Section: 143(3); 133A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH F, MU MBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5755/MUM/2013 (ASSESSMENT YEAR- 2010-11) MR. VIJAY KUMAR 35, SHREYAS, 5 TH FLOOR, 180 MADAM CAMA ROAD, NARIMAN POINT, MUMBAI-400020 PAN:AACPK3309C VS. ACIT, CENTRAL CIRCLE-13 11 TH FLOOR, ROOM NO. 1103, OLD CGO BLDG. M.K. ROAD, MUMBAI-20. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. POOJA SWAROOP (DR) DATE OF HEARING : 14.03.2018 DATE OF PRONOUNCEMENT : 14.03.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF I NCOME-TAX (APPEALS)- 37, MUMBAI, [FOR SHORT THE LD. CIT(A)] DATED 11.01. 2013 FOR ASSESSMENT YEARS 2010-2011. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: I. GENERAL 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER THEREBY ASSESSING TH E INCOME OF THE APPELLANT AT RS.20,20,600 /- AS AGAINST RETURNED INCOME OFRS.3,8 2,194/-. 2. THE LEARNED CIT(A) AND THE APPEAL WAS PARTLY ALL OWED VIDE ORDER DATED 11.01.2013 II. UNEXPLAINED CASH 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A) ERRED IN MAKING ADDITION OFRS.98,200/- AS UNEXPLAIN ED CASH. III. UNEXPLAINED JEWELLERY 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A) ERRED IN MAKING ADDITION OF RS.15,40,205/- AS UNEXP LAINED JEWELLERY. ITA NO. 5755/MUM/2013 - MR. VIJAY KUMAR 2 AS PER SEARCH & SEIZURE I.T. DEPARTMENT FOUND 1,873 GMS JEWELLERY BUT IN BALANCE SHEET OF MRS. VEENA KUMAR'S SHOWN 866.80 GM S AND BALANCE 1,007 GMS DISALLOWED AS UNEXPLAINED JEWELLERY. HOWEVER IN THE WEALTH TAX RETURNS OF VEENA KUMAR'S ALREADY SHOWN (VDIS, 1997) 866.80 GMS + 685 GMS AGGREGATING TO 1,551.80 GMS IS ALREADY REFLECTED. A ND THE BALANCE GOLD JEWELLERY 321.20 GMS HAS BEEN RECEIVED AS GIFTS AND / OR PURCHASED FROM 1998- 1999 THROUGH THE YEARS ON FESTIVE / SPECIAL OCCASIO N. IV. THE LEARNED CIT(A) DISALLOWANCES OF UNEXPLAINED CASH OF RS.98200/- AND JEWELLERY OF RS.15,40,205/- AND THE APPEAL WAS PART LY ALLOWED. V. THE APPELLANT CRAVES LEAVE TO ALTER, AMEND OR DE LETE ANY OF THE ABOVE GROUNDS OF APPEAL AND/OR TO ADD ANY FRESH GROUND ZS OF APPEAL AT OR BEFORE THE HEARING OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 ON 02.11.2010 DECLARING TOTAL INCOME OF RS. 3,82,194/-. A SEARCH & SEIZURE ACTION UNDER SECTION 132 AND SURVEY ACTION UNDER SECTION 133A WERE CARRIED OUT I N CASE OF TEMPTATION FOODS GROUP ON 24.09.2009. DURING THE SEARCH THE RE SIDENTIAL HOUSE AND BANK LOCKER OF ASSESSEE WAS ALSO COVERED. DURING TH E SEARCH ACTION, CERTAIN JEWELLERY AND CASH WERE FOUND. CONSEQUENT UPON THE SEARCH, THE CASE WAS CENTRALIZED TO THE CHARGE OF ACIT-CENTRAL CIRCLE-11 , MUMBAI. THE ASSESSMENT WAS COMPLETED ON 13.12.2011 UNDER SECTIO N 143(3) OF THE ACT. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITIONS OF RS. 98,200/- ON ACCOUNT OF UNEXPLAINED CASH AND RS. 15,40,205/- ON ACCOUNT OF UNEXPLAINED JEWELLERY. ON APPEAL BEFORE THE LD. CIT(A), THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH WAS CONFIRMED, HOWEVER, THE ADDITION ON ACCOUNT OF UNEXPLAINED JEW ELLERY WAS PARTLY ALLOWED BY GIVING THE DIRECTION TO THE ASSESSING OF FICER TO EXCLUDE THE JEWELLERY ITEMS WHICH HAS BEEN REFLECTED IN THE BAL ANCE-SHEET IN WEALTH TAX ITA NO. 5755/MUM/2013 - MR. VIJAY KUMAR 3 RETURN OF SMT. VEENA KUMAR W/O ASSESSEE. THUS, FURT HER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRE SENT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE APPEAL CAME UP HEARING ON 14.03.2018. PERUSAL OF RECORD REVEALS THAT THE COUN CIL OF ASSESSEE SOUGHT ADJOURNMENT ON 27.09.2017 AND THE CASE WAS ADJOURNE D FOR 24.10.2017. AND THEREAFTER NONE APPEARED ON BEHALF OF THE ASSESSEE. WE LEFT NO OPTION EXCEPT TO HEAR THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FO R THE REVENUE AND TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABL E ON RECORD. 4. THE PERUSAL OF RECORD REVEALS THAT THE IMPUGNED ORD ER WAS PASSED BY LD. CIT(A) ON 11.01.2013, WHICH WAS COMMUNICATED TO THE ASSESSEE ON 06.02.2013. HOWEVER, THE PRESENT APPEAL IS FILED ON 23.09.2013. THUS, THE APPEAL IS APPARENTLY BARRED BY LIMITATION. THE ASSE SSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY SUPPORTED WITH THE AFFIDAVIT OF ASSESSEE FOR SEEKING THE CONDONATION OF DELAY. IN THE AFFIDA VIT, THE ASSESSEE HAS CONTENDED THAT HE IS A SENIOR CITIZEN. THE ORDER OF LD. CIT(A) WAS NOT RECEIVED FROM THE OFFICE OF ASSESSING OFFICER. THE REPRESENTATIVE OF ASSESSEE COLLECTED THE ORDER OF FIRST APPELLATE AUTHORITY FR OM THE OFFICE OF ASSESSING OFFICER ON 04.09.2013, PASSED ON 06.03.2013. THE AF FIDAVIT FURTHER DISCLOSED THAT THE ORDER WAS DELIVERED AT WRONG ADDRESS. THE LD. DR FOR THE REVENUE OPPOSED THE APPLICATION FILED BY THE ASSESSEE FOR C ONDONING THE DELAY IN FILING APPEAL. THE LD. DR SUBMITS THAT ASSESSEE HAS PLEADED THE WRONG FACT IN HIS AFFIDAVIT. THE LD. CIT(A) PASSED THE IMPUGNED O RDER ON 11.01.2013. THE ITA NO. 5755/MUM/2013 - MR. VIJAY KUMAR 4 ASSESSEE HAS PLEADED THE WRONG FACT THAT THE ORDER OF LD CIT(A) WAS NOT SERVED ON THE ASSESSEE. NO SUCH ADDRESS ON WHICH TH E ORDER WAS ALLEGEDLY SERVED/ SENT BY LD CIT(A) IS MENTIONED BY ASSESSEE. THE ASSESSEE HAS NOT EXPLAINED THE DELAY IN FILING THE APPEAL AND THE AS SESSEE IS NOT ENTITILED FOR DISCRETIONARY RELIEF. THE APPEAL IS LIABLE TO BE DI SMISSED. 5. WE HAVE CONSIDERED THE CONTENTS OF APPLICATION AND AFFIDAVIT FILED IN SUPPORT OF APPLICATION FOR CONDONATION OF DELAY. WE HAVE NO TED THAT THE ASSESSEE HAS CONTENDED IN THE APPLICATION/AFFIDAVIT THAT THE IMP UGNED ORDER WAS RECEIVED FROM THE OFFICE OF ASSESSING OFFICER AND THAT THE O RDER OF LD. CIT(A) WAS SERVED AT THE WRONG ADDRESS. PERUSAL OF FORM-35 REV EALS THAT THE ASSESSEE HAS GIVEN HIS ADDRESS AT FLAT NO. 35, 5 TH FLOOR, 180, MADAME CAMA ROAD, MUMBAI-20. THE SAME ADDRESS IS MENTIONED IN THE ASS ESSMENT ORDER. FURTHER, THE NOTICE UNDER SECTION 156 ALSO BEARS TH E ADDRESS OF ASSESSEE AT FLAT NO. 35, 5 TH FLOOR, MUMBAI-20 (180, MADAME CAMA ROAD). THE ASSE SSEE HAS NOT DISCLOSED AS TO ON WHICH ADDRESS, THE COPY OF IMPUGNED ORDER WAS SERVED. NO DOCUMENTARY EVIDENCES SUBSTANTIATING THE CONTENTS THAT THE IMPUGNED ORDER WAS COLLECTED FROM THE OFFICE OF ASS ESSING OFFICER ON 04.09.2013, IS PLACED ON RECORD. WE FIND THAT CONTE NTS OF APPLICATION FOR CONDONATION OF DELAY ARE DEVOID OF MERIT. THE APPLI CATION FOR CONDONATION IS FILED IN A CASUAL MANNER. THE ASSESSEE HAS NEITHER EXPLAINED THE DELAY IN PROPER MANNER NOR COME FORWARD TO SUBSTANTIATE BEFO RE US FOR THE REASONS ITA NO. 5755/MUM/2013 - MR. VIJAY KUMAR 5 BEST KNOWN TO HIM. HENCE, WE DO NOT FIND ANY MERIT IN THE APPLICATION FOR CONDONING THE DELAY AND THE SAME IS DISMISSED. 6. AS WE HAVE DISMISSED THE APPLICATION FOR CONDONATIO N OF DELAY, RESULTANTLY, APPEAL OF THE ASSESSEE IS NOT ADMITTED FOR HEARING. RESULTANTLY, THE APPEAL IS DISMISSED IN LIMINE. 7. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF MARCH 2018. SD/- SD/- ( SHAMIM YAHYA ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 14/03/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE C