Appeal Details
Counselvise Citation
[2020] 111 COUNSELVISE.COM (IT) 3176 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 3 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
24-02-2020
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
SMC
Assessment Year
2009-2010
Appeal Filed On
22-11-2018
Judgement Text
IN THE INCOME-TAX APPELLATE TRIBUNAL SMC BENCH MU MBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 6609/MUM/2018 (ASSESSMENT YEAR 2009-10 ) JAYESH H. SHAH, 309, PRATIK AVENUE NEHRU ROAD, VILLE PARLE (E), MUMBAI- 400057 PAN: AAFPS5426F VS. ACIT-21(1) C-10, PRATYAKSHAKAR BHAVAN, BANDRA (E), MUMBAI - 400051 . APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI SATISHCHANDRA RAJORE (DR) DATE OF HEARING : 24.02.2020 DATE OF PRONOUNCEMEN T : 24.02.2020 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-53, MUMBAI [LD. CIT(A)] DATED 10.09.2018 FOR ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. CIT[A] HAS ERRED IN NOT CONDOLING DELAY WHERE TH E APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE 2. CIT[A] HAS NOT TAKEN IN TO ACCOUNT THAT APPELLAN T HAS FILED FIRST APPEAL AGAINST ORDER U/S 147 READ WITH 143[3] DURING COURS E OF HEARING OF THAT APPEAL APPELLANT HAS REALIZED THAT APPEAL AGAINST THE ORIG INAL ORDER U/ S 143[3] HAS TO BE FILED HENCE IT WAS DELAY. 3. CIT[A] HAS NOT TAKEN INTO ACCOUNT THE ORDER U/S 154 IS PASSED AFTER ORDER UNDER U/ S 143[3] R.W. 147 IS PASSED. APPELLANT HAS ALREADY FILED APPEAL AGAINST THE ORDER U/ S 143[3] R.W. 147 . 4. CIT[A] HAS NOT TAKEN INTO ACCOUNT THAT AO HAS DI SALLOWED U/S 14A RS 159931/ - AGAINST THE EXEMPTED INCOME CLAIMED BY TH E ASSESSEE RS 1942/ - ITA NO. 6609 MUM 2018-JAYESH H. SHAH 2 DISALLOWANCE CANNOT BE MORE THAN EXEMPTED INCOME HE NCE APPELLANT HAS APPLIED FOR RECTIFICATION ORDER UNDER SECTION 154 I S PASSED AFTER PASSING OF ORDER U/ S 143[3] R.W 147. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT FOR ASSESSMENT YEAR 2009-10 WAS COMPLETED UNDER SECTION 143(3) ON 31.10.2011. D URING THE ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS E ARNED EXEMPT INCOME OF RS. 1942/-. THE ASSESSING OFFICER FURTHER NOTED THA T ASSESSEE HAS NOT MADE ANY SUO-MOTO DISALLOWANCE FOR EARNING EXEMPT INCOME . THE ASSESSING OFFICER INVOKED THE PROVISION OF RULE 8D AND MADE A TOTAL DISALLOWANCE OF RS. 1,59,931/-, THE DISALLOWANCE CONSISTS OF INTERE ST DISALLOWANCE OF RS. 1,56,697/- AND INDIRECT DISALLOWANCE @ .5% OF AVERA GE VALUE OF INVESTMENT OF RS. 3,224/- THEREBY TOTAL DISALLOWANCE OF RS. 1, 59,931/-. NO FIRST APPEAL WAS FILED BY ASSESSEE WITHIN PERIOD OF LIMITATION. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) ONLY ON 27.02.2017. THE APPE AL WAS FILED AFTER 1927 DAYS OF PRESCRIBED PERIOD OF LIMITATION. IN SUPPORT OF CONDONATION OF DELAY, THE ASSESSEE STATED BEFORE LD CIT(A) THAT THE ASSES SEE WAS PURSUING ALTERNATIVE REMEDY UNDER SECTION 154. IT WAS ALSO U RGED THAT THERE IS NO BENEFIT TO THE ASSESSEE IN FILING LATE APPEAL. IT W AS EXPLAINED THAT THE ASSESSEE FILED AN APPLICATION UNDER SECTION 154 WHI CH WAS DECIDED ON 02.06.2015. THE EXPLANATION OFFERED BY ASSESSEE FOR CONDONATION WAS NOT ACCEPTED BY LD. CIT(A). THE LD CIT(A) TOOK HIS VIEW THAT ASSESSEE HAS NOT EXPLAINED THE DELAY. IT WAS FURTHER HELD THAT THE A PPLICATION UNDER SECTION 154 WAS DEPOSED ON 02.06.2015 AND EVEN AFTER DISPOS AL OF RECTIFICATION ITA NO. 6609 MUM 2018-JAYESH H. SHAH 3 APPLICATION THE APPEAL IS FILED BELATEDLY. RESULTAN TLY, THE DELAY WAS NOT CONDONED AND APPEAL WAS NOT ADMITTED FOR HEARING. F URTHER AGGRIEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE NOR IS APPLICAT ION FOR ADJOURNMENT WAS FILED. PERUSAL OF RECORD REVEALS THAT ASSESSEE HAS FILED WRITTEN SUBMISSION ON RECORD. IN THE WRITTEN SUBMISSION, THE ASSESSEE STA TED THAT THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY AS DELAY W AS NOT INTENTIONAL OR DUE TO NEGLIGENT. DURING THE COURSE OF HEARING IN APPEA L FILED BY ASSESSEE AGAINST THE ORDER UNDER SECTION 143(3) R.W.S 147 AN D THE ORDER UNDER SECTION 154. THE ASSESSEE REALIZED OF FILING THE DELAY AGAI NST BOTH THE ORDERS. THE ASSESSEE PRAYED FOR CONDONATION OF DELAY. THE ASSES SEE HAS RELIED ON THE DECISION OF COLLECTOR OF LAND ACQUISITION VS. MST KATIJI [167 ITR 471 (SC)] AND ORDER OF PUNE TRIBUNAL IN GERA DEVELOPMEN TS (P.) LTD. [181 TTJ 510 (PUNE TRIB.)]. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE SUBMITS THAT NEITHER THE ASSESSEE HAS COME FORWARD NOR EXPLAINED THE DELAY IN FILING THE APPEAL. THE ASSESSEE HAS NO T DISCLOSED ANY REASONABLE CAUSE FOR SEEKING CONDONATION OF DELAY BEFORE THE F IRST APPELLATE AUTHORITY (FAA). THE ASSESSEE HAS NOT FILED THE COPY OF APPLI CATION FILING BEFORE THE FAA FOR SEEKING CONDONATION OF DELAY. 5. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND THE WRITTEN SUBMISSION OF ASSESSEE ON RECORD. WE HAVE A LSO DELIBERATED ON THE ITA NO. 6609 MUM 2018-JAYESH H. SHAH 4 CASE LAW RELIED BY ASSESSEE IN ITS WRITTEN SUBMISSI ONS. THE ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED ON 31.10.2011, T HE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITIO N/DISALLOWANCE UNDER SECTION 14A OF RS. 1,59,930/-. NO APPEAL WAS FILED AGAINST THE ADDITION IN THE ASSESSMENT ORDER BEFORE LD CIT(A). WE HAVE NOTE D THAT THE ASSESSEE FILED A PETITION/APPLICATION UNDER SECTION 154 FOR RECTIFICATION AGAINST THE ADDITION/DISALLOWANCE UNDER SECTION 14A. THE APPLIC ATION OF THE ASSESSEE UNDER SECTION 154 WAS DISMISSED ON 02.06.2015. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) ONLY ON 27.02.2017 FOR CHALL ENGING THE DISALLOWANCE UNDER SECTION 14A. THE LD. CIT(A) DISMISSED THE APP EAL BY TAKING VIEW THAT THE ASSESSEE HAS NOT EXPLAINED THE INORDINATE DELAY . IT WAS FURTHER HELD BY LD. CIT(A) THAT THE ASSESSEE HAS NOT EXPLAINED THE DELAY EVEN AFTER DISMISSAL OF RECTIFICATION APPLICATION. BEFORE US NEITHER THE ASSESSEE HAS EXPLAINED THE DELAY NOR FILED ANY DOCUMENTARY EVIDENCE OR COPY OF APPLICATION FILED BEFORE THE LD. CIT(A) IN SEEKING CONDONATION OF DE LAY. THUS, WE DO NOT FIND ANY JUSTIFIABLE REASON IN SEEKING THE CONDONAT ION OF DELAY BEFORE THE LD. CIT(A). 6. THE RATIO IN THE CASE LAW RELIED BY ASSESSEE IN COL LECTOR OF LAND ACQUISITION VS. MST KATIJI (SUPRA) AND IN GERA DEVE LOPMENTS (P.) LTD. (SUPRA) IS NOT HELPFUL TO THE ASSESSEE AS THE FACTS IN BOTH THE CASE LAW ARE DIFFERENT. THE ASSESSEE IN THIS CASE WAS AWARE ABOU T THE DISALLOWANCE UNDER ITA NO. 6609 MUM 2018-JAYESH H. SHAH 5 SECTION 14A, WHICH WAS NOT HESITATED BY HIM BY FILI NG APPEAL BEFORE FIRST APPELLATE AUTHORITY. 7. RESULTANTLY, WE DO NOT FIND ANY MERIT IN THE GROUN DS OF APPEAL RAISED BY ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/02/2020. SD/- SD/- R.C. SHARMA PAWAN SINGH ACCOUNTANT MEMBER JUD ICIAL MEMBER MUMBAI, DATE: 24.02.2020 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR SMC BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI
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