POONAM MANILAL DABHI, MUMBAI V. ITO 15(3)2, MUMBAI

ITA 622/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3706 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 21-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROOPAK KUMAR
• Assessee Lawyers: HRISHIKESH A PUROHIT
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A. NO. 622/MUM/2011 ASSESSMENT YEAR: 2007-2008 POONAM MANILAL DABHI B/4, SAMARPAN SOCIETY, NARSI MEHTA MARG, NEW MANEKLAL ESTATE, GHATKOPAR (W) MUMBAI- PIN- 400086 PAN: AICPD6425E VS. ITO 15(3)(2) 1 ST FLOOR, R.NO. 109, MATRU MANDIR, TARDEO, MUMBAI PIN: 400007 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HRISHIKESH A. PUROHIT RESPONDENT BY : SHRI ROOPAK KUMAR, DR DATE OF HEARING: 25.04.2013 DATE OF ORDER: 08.05.2013 O R D E R PER D. KARUNAKARA RAO, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 25.11.2010 FOR THE ASSESSMENT YEAR 2007-08. 2. GROUNDS ARE AS UNDER: 1. THE COMMISSIONER OF INCOME TAX (APPEALS)-26, ERR ED IN ADMITTING APPLICATION FOR CONDONATION OF DELAY IN FILING APPE AL THEREBY DISMISSING APPEAL FILED BY THE APPELLANT ASSESEE AGAINST ASSESSMENT ORDER PASSED U/S 144 OF THE INCOME TAX ACT, 1961, BY THE LEARNED I.T.O. WARD 15(3)(2), MUMBAI; 2. NOT ALLOWING AND GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT ASSESEE WITH RESPECT TO PRODUCTION OF BOO KS OF ACCOUNT AND REPRESENT THE FACTUAL RECORD FOR MAKING ASSESSMENT OF INCOME FOR THE A.Y. 2007-08, ON MERIT; 2 ITA NO. 622/MUM/2011 POONAM MANILAL DABHI 3. NOT DELETING THE WRONGFUL ADDITION OF RS. 12,13,560/- MADE BY THE LEARNED ASSESSING OFFICER TO MY RETURNED INCOME IN THE GUISE OF CASH DEPOSIT IN BANK; 4. UPHOLDING THE ASSESSING OFFICERS ACTION IN CHAR GING INTEREST UNDER SECTION 234A AND 234B, IN THE ABSENCE OF A DEFINITE AND UNAMBIGUOUS DIRECTION IN HIS ASSESSMENT ORDER. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT THE ASSESSEE IS AN INDIVIDUAL. IN THE SCRUTINY ASSESSMENT, AO DETERMINED THE TOTAL IN COME U/S 144 OF THE ACT AT RS. 13,38,790/- VIDE THE ORDER DATED 31.12.2009. AO ALL EGED THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICES GIVEN AT VARIOUS DATES. 4. AGGRIEVED WITH THE SAME, ASSESEE FILED BEFORE TH E CIT(A) AN APPEAL BELATEDLY ON 18.06.2010 WITH THE DELAY OF 203 DAYS . ON THE PRELIMINARY ISSUE OF CONDONATION OF SAID DELAY, ASSESSEE SUBMITTED BEFORE THE CIT(A) TH AT THE EX-PARTE ASSESSMENT ORDER WAS RECEIVED BY THE ASSESEE BELATEDLY AND NOT ON 02 .01.2010 AS MENTIONED IN THE CLAUSE NOTICE GIVEN BY THE CIT(A). ACTUALLY, THE DE PARTMENT SENT THE ASSESSMENT ORDER AND DEMAND NOTICE U/S 156 OF THE ACT BY RPAD WHICH IS SAID TO HAVE BEEN RECEIVED BY THE ASSESEE THROUGH A PERSON NAMED MR. K.M. DABHI O N 02.01.2010. THE DATE OF VERIFICATION OF THE APPEAL PAPERS FILED BEFORE THE CIT(A) IS 18.06.2010. THE APPEAL WAS ACTUALLY FILED ON 23.08.2010. ASSESSEE PRAYED FOR CONDONATION OF DELAY CONSIDER ING THE CONFUSION WITH REGARD TO THE DELIVERY OF THE SA ID ASSESSMENT ORDER AND DEMAND NOTICE IE PRIMARY DOCUMENTS NECESSARY FOR FILING AP PEAL BEFORE THE CIT(A). IT IS CLAIMED THAT THE PERSON RESPONSIBLE FOR THE DELAYED DELIVER Y OF CONCERNED DOCUMENTS IS THE ACCOUNTANT OF THE ASSESSEE BY SATISH B. JADHAV. CIT (A) EXAMINED THE SAID PRELIMINARY ISSUE RELATING TO CONDONATION OF DELAY AND ALSO CON SIDERED THE EXPLANATIONS GIVEN BY THE ASSESEE DEMONSTRATING REASONABLE CAUSE FOR THE DELA Y AND ANALYZED THE ISSUE AT LENGTH. FINALLY HE HELD THAT THERE IS NO SUCH REASONABLE CA USE FOR CONDONING THE DELAY. IN THE PROCESS, LD CIT(A) STUDIED THE SIGNATURES/HANDWRITI NGS OF THE RECIPIENTS OF THE DOCUMENTS/ENVELOPE DELIVERED BY THE POST AUTHORITIE S AND CAME TO THE CONCLUSION THAT 3 ITA NO. 622/MUM/2011 POONAM MANILAL DABHI THE DOCUMENTS WERE RIGHTLY RECEIVED IN TIME. THUS, HE HELD THAT THE DELAY IN FILING THE APPEAL IS ATTRIBUTED TO THE INACTION OF THE ASSESSE E, WHICH DOES NOT CONSTITUTES REASONABLE CAUSE FOR CONDONATION. FURTHER HE MENTIO NED THAT THE EXPLANATION GIVEN BY THE ASSESEE IS MERELY A COOKED UP STORY AND CONSTIT UTES MISS-REPRESENTATION OF FACTS. PARA 3 TO 8 OF THE IMPUGNED ORDER ARE RELEVANT IN T HIS REGARD. FINALLY, REJECTING THE ASSESSEES REQUEST FOR CONDONATION OF DELAY, THE CI T(A) HELD THAT THE ASSESSEES APPEAL SHOULD NOT BE ADMITTED AND CONSEQUENTLY, THE APPEAL IS DISMISSED AS NOT ADMITTED WITHOUT GOING TO THE MERITS OF THE ISSUES RAISED IN THE GROUNDS. 5. AGGRIEVED WITH THE SAME, THE ASSESEE HAS FILED T HE PRESENT APPEAL BEFORE US. DURING THE PROCEEDINGS, LEARNED COUNSEL FOR THE ASS ESEE BROUGHT OUR ATTENTION TO THE ANNEXURE-A AND B FILED IN THE APPEAL MEMO AND MENTI ONED THE SIGNATORIES ON THESE DOCUMENTS IE (P.M. DABHI) AND (K.M. DABHI) ARE NOT THE SAME. THESE TWO SIGNATURES ARE DIFFERENT ONES. THEREFORE, INFERENCES OF THE CI T(A) SHOULD NOT BE UPHELD. FURTHER ON THE ISSUE OF ATTRIBUTABILITY OF DELAY TO THE SATISH M. JADHAV, ASSESSEES ACCOUNT, LD COUNSEL MENTIONED THAT THE MEDICAL CERTIFICATE ISSU ED BY DR. VASANT K. GALA SUPPORTS THAT SHRI JADHAV WAS SICK DURING AUGUST, 2009 TO JU LY 2010. HE ALSO MENTIONED THAT CONTENTS OF THE AFFIDAVIT AND THE SUPPORTIVE EVIDEN CES FILED BY THE ASSESSEE RELATING TO THE PRELIMINARY ISSUE OF CONDONATION OF DELAY WERE NOT FOUND BOGUS BY THE AO. FINALLY LD COUNSEL FOR THE ASSESEE PRAYED FOR ACCEPTING THE SUBMISSIONS OF THE ASSESEE AS GENUINE AND CONSIDERING THE SMALLNESS OF THE DELAY, THE APPEAL MAY BE ADMITTED AND DIRECTION MAY BE ISSUED TO CIT(A) FOR ADMITTING AND ADJUDICATING OF ISSUES ON MERITS. 6. ON THE OTHER HAND, LEARNED DR FOR THE REVENUE RE LIED DUTIFULLY ON THE ORDERS OF THE AO/CIT(A). 7. WE HEARD BOTH THE PARTIES, PERUSED THE ORDERS OF THE REVENUE AS WELL AS THE ORDERS AVAILABLE BEFORE US. IT IS A FACT THAT THE EX-PARTE -ASSESSMENT WAS COMPLETED BY THE AO U/S 144 OF THE ACT ON 31.12.2009. THE APPEAL BEFORE THE CIT(A) WAS FILED ON 23.08.2010 ALTHOUGH VERIFICATION PORTION OF THE APP EAL IS DATED 18.06.2010. IT IS THE 4 ITA NO. 622/MUM/2011 POONAM MANILAL DABHI CLAIM OF THE REVENUE THAT THE SERVICE OF THE ASSESS MENT ORDER WAS COMPLETED ON 2 ND JANUARY, 2010. THERE IS NO CLARITY ON WHO RECEIVED THE ASSESSMENT ORDER AND THE RELATIONSHIP QUA THE ASSESSEE. IT IS TRUE SOMEBODY WITH THE NAME D ABHI RECEIVED THEM PROBABLY TO HAND OVER THEM TO SHRI SATISH B. J ADHAV, THE ACCOUNTANT OF THE ASSESSEE. WHO IS MR DABHI AND ON WHAT CAPACITY, HE RECEIVED THE TAPALS FROM POSTAL AUTHORITIES? AS SUCH, SRI YADAV WAS SICK DURING THE PERIOD AS CERTIFIED BY THE MEDICAL PRACTITIONER. 8. FURTHER, WE FIND FROM ANNEXURE-A & B TO THE APPE AL PAPERS THAT THE SIGNATURES ON ANNEXURE - A AND B ARE NOT AN IDENTICAL AND CONS EQUENTLY, THE PRESUMPTIONS OF THE CIT(A) REQUIRES REVISIT BY AN EXPERT ON HANDWRITING EXPERTS. IT IS ALSO A FACT THAT THE ASSESSEES ACCOUNTANT SHRI SATISH B. JADHAV IS UNDE R MEDICAL TREATMENT TILL JULY, 2010. DESPITE THE CONFUSION, ASSESSEE FINALLY FILED THE A PPEAL BEFORE THE CIT(A) ON 23 RD AUGUST, 2010. THERE IS DISPUTE ON DATE OF RECEIPT O F THE ASSESSMENT ORDER BY THE ASSESSEE. WHILE IT IS A CLAIM OF THE ASSESSEE, THAT THE SAME WAS RECEIVED BY THE ASSESEE ONLY IN 22 ND JULY, 2010, THE REVENUE CLAIMS THAT THE SERVICE IS COMPLETE ON 2 ND JANUARY 2010. THUS, THE DEBATE EXITS ON THE DATE OF SERVICE OF THE ASSESSMENT ORDER ON THE ASSESSEE AND IF THE SERVICE ON DABHI AMOUNTS TO S ERVICE ON THE ASSESSEE. AS SUCH THE SICKNESS OF SRI YADAV THE ACCOUNTANT IS UNDISPUTED. IN THE BACK GROUND OF THE ABOVE, IN OUR OPINION, IT IS A SETTLED ISSUE THAT THE RIGHT O F APPEAL AGAINST ANY JUDICIAL ORDER IS A PRECIOUS RIGHT AND THE SAME CANNOT BE DENIED FOR FL IMSY GROUNDS WITHOUT HAVING A CONCRETE REASONS LEGALLY JUSTIFIABLE AND CERTAINLY NOT ON PRESUMPTIONS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE CIT(A) SHOUL D HAVE ADMITTED THE APPEAL AFTER CONDONING THE IMPUGNED DELAY OF 203 DAYS AND ADJUDI CATED THE ISSUES ON MERITS WITHIN THE SPIRIT OF THE PROVISIONS OF SECTION 250(6) OF T HE ACT. THEREFORE, IN OUR OPINION, IT IS A FIT CASE FOR CONDONING THE DELAY WE ALLOW ACCORDINGLY. 9. EX CONSEQUENTI , WE DIRECT THE CIT(A) TO ADMIT THE APPEAL AND ADJU DICATE THE ISSUES RAISED BEFORE HIM, THE ASSESEE IS DIRECTED T O COMPLY WITH THE NOTICES AND THE 5 ITA NO. 622/MUM/2011 POONAM MANILAL DABHI DIRECTIONS OF THE AO IN THIS REGARD. ACCORDINGLY TH E GROUND ON MERITS ARE SET ASIDE TO THE CIT(A) FOR WANT OF FRESH ADJUDICATION AND ALSO OF SPEAKING ORDER. ACCORDINGLY, ALL THE GROUNDS ARE SET ASIDE . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF MAY, 2013. SD/- SD/- (I.P. BANSAL) (D. K ARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 08.05.2013 AT :MUMBAI SK COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR C, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI