NOVA DIGITAL SERVICES, THANE V. ITO WD 3(1), THANE

ITA 7060/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79269 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Assessee Lawyers: RAJESH GUPTA
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI .., BEFORE SHRI I.P.BANSAL, JUDICIAL MEMBER. ITA NO.7060/MUM/2013 (A.Y. 2004-05) M/S. NOVA DIGITAL SERVICES, SHOP NO.13, KASUSTHUBHA SOCIETY, BAJI PRABHU DESHPANDE ROAD, VISHNU NAGAR, THANE (W), 600602. PAN:AAEFN 8755B THE INCOME TAX OFFICER, WARD 3(1), THANE ( ! / // / APPELLANT) # # # # / VS. ( $% !/ RESPONDENT) ! & ' & ' & ' & ' /APPELLANT BY : SHRI RAJESH GUPTA $% ! & ' & ' & ' & ' /RESPONDENT BY : SHRI. B.YADAGIRI # & ()* / / / / DATE OF HEARING : 30.06.2014 +,- & ()* / DATE OF PRONOUNCEMENT : 30.06.2014 . . . . / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-1, THANE DATED 31/01/2009 FOR THE ASS ESSMENT YEAR 2004-05. GROUNDS OF APPEAL READ AS UNDER: I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) I ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER ON THE GROUND THAT THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE DIFFERENCE OF RS. 1,53,270/- IN THE SALE FIGURES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) -1 ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER ON THE GROUND THAT APPELLANT HAS FAILED TO JUSTIFY AND RECONCILE THE DIFFERENCE IN S ALE FIGURE EVEN THOUGH PROPER BIFURCATION WAS SUBMITTED BY THE APPELLANT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) -1 ERRED IN NOT CONSIDERING THE RECONCILIATION STATEMENT SUBMITTED THEREBY RESULTING IN DOUBLE TAXATION. 4. THE APPELLANT CRAVES LEAVE TO ADD TO ALTER AND/O R AMEND ANY OF THE GROUNDS OF APPEAL MENTIONED HEREINABOVE. 2. THE APPEAL FILED BY THE ASSESSEE IS A BELATED ONE AND ACCORDING TO CONDONATION REQUEST IS BELATED BY 1740 DAYS. THE ASSESSEE HAS FILED AN APPLICATION ITA NO.7060/MUM/2013 (A.Y. 2004-05) 2 FOR CONDONATION OF DELAY. THE IMPUGNED ORDER PASSE D BY LD. CIT(A) WAS RECEIVED BY THE ASSESSEE ON 22//2/2009 AND APPEAL HAS BEEN FILE D BY THE ASSESSEE ON 20/12/2013. THE REASON FOR SEEKING CONDONATION OF DELAY AHS BEEN MENTIONED IN AN APPLICATION AS UNDER: APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE COMMIS SIONER OF INCOME TAX (APPEALS) - I AGAINST THE IMPUGNED ASSESSEMENT ORDER PASSED BY TH E ASSESSING OFFICER . ON APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS)- 1 THE ADDITION MADE WAS UPHELD. ASSESSEE HAS DELAYED IN FILING THE APPEAL WITHIN TI ME AND THE DELAY IS OF 1740 DAYS. REASON FOR DELAY IS SUBMITTED AS FOLLOWS. IN THE INSTANT CASE, ASSESSEE HAD FILED ITS RETURN DECLARING NIL INCOME AND ASSESSING OFFICER HAD ASSESSED ITS INCOME FOR THE RELEVANT AS STT. YEAR AT RS. 1,92,030/- AND HAD PASSED THE ASSESSMENT ORDER U/S. 143 3) ON 29TH DEC . 2006. THE ASSESSEE FILED AN APPEAL BEFORE CIT (A) -1, THA NE AND THE APPELLATE ORDER CONFIRMING THE ADDITIONS WAS RECEIVED ON 22 FEB.200 9. IN THE YEAR 2009, THE ASSESSEE DEVELOPED AN ILLNESS WHICH DUE TO WHICH HE WAS UNAB LE TO WALK AND HIS MOVEMENTS WERE RESTRICTED, THUS BED RIDDEN. THIS DECEASES STA RTED SPREADING AND THE DOCTOR TREATING HIM SUSPECTED IT TO BE CANCER AND TUBERCUL OSIS. THE ASSESSEE WAS HOSPITALIZED INITIALLY AND LATER HE WAS ADMITTED EVERY FIFTEEN D AYS. THIS ILLNESS OF HIS CARRIED ON FOR THREE YEARS OR THERE ABOUT. LATER, AFTER CARRYING O UT MAJOR TESTS AND TREATMENTS, CANCER AND TUBERCULOSIS WAS RULED OUT AND IT TOOK TIME FOR THE ASSESSEE TO RECOVER. THE ASSESSEE WAS ABLE TO CARRY OUT HIS NORMAL ACTIVITY SINCE LAST ONE YEAR. IN THE INTEREST OF NATURAL JUSTICE AND THE FACTS SU BMITTED ABOVE, THE DELAY CAUSED IN FILING THE APPEAL IS BY 1740 DAYS WAS NOT A DELIBER ATE DELAY AND II IS REQUESTED THAT THE DELAY MAY KINDLY BE CONDONED AND THE ASSESSEE M AY BE GIVEN A FAIR CHANCE TO PRESENT HIS APPEAL BEFORE THE HONBLE INCOME TAX AP PELLATE TRIBUNA1. 2.1 THE AFOREMENTIONED APPLICATION HAS BEEN SUPPORT ED BY AN AFFIDAVIT, IN WHICH IT HAS BEEN STATED THAT ON MEDICAL GROUND ASSESSEE COU LD NOT FILE THE APPEAL IN TIME AS HIS DOCTOR INFORMED HIMTHAT THEY WERE SUSPECTING T UBERCULOSIS AND CANCER AND ASSESSEE WAS REQUIRED FREQUENT HOSPITALIZATION I N EVERY 15 DAYS FOR TREATMENT. ALONGWITH THE APPLICATION THE ASSESSEE HAS ALSO SUB MITTED EVIDENCES TO SHOW THAT ASSESSEE WAS NOT HAVING GOOD HEALTH. 3. ON 4/6/2014, WHEN THE PRESENT APPEAL WAS FIXED FOR HEARING DEPARTMENT WAS REQUIRED TO COUNTER THE APPLICATION AND AFFIDAVIT OF THE ASSESSEE REGARDING CONDONATION OF DELAY. THE DEPARTMENT HAS FILED A B IG PAPER BOOK FROM WHERE IT HAS COME TO THE NOTICE THAT IN RESPONSE TO SHOW CAUSE NOTICE ISSUED FOR LEVY OF CONCEALMENT PENALTY WHICH WAS DATED 6/7/2009, THE P ARTNER OF THE ASSESSEE HAD ATTENDED THE PROCEEDINGS ON 13/7/2009 AND ALSO SUBM ITTED THE REPLY. THE SAID PARTNER ALSO ATTENDED THE PROCEEDINGS ON 6/8/2009. 18/9/2009 AND 24/9/2009 ITA NO.7060/MUM/2013 (A.Y. 2004-05) 3 AND THE PENALTY ORDER UNDER SECTION 271(1)(C) OF TH E INCOME TAX ACT, 1961 (THE ACT) CAME TO BE PASSED ON 9/3/2010 LEVYING CONCEALMENT PENALTY OF RS.73,130/-. THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) AGAI NST THE ORDER LEVYING CONCEALMENT PENALTY AND THE SAID APPEAL WAS FILED BEFORE LD. C IT(A), THANE ON 13/4/2010 AND LD. CIT(A) ALSO CONFIRMED THE PENALTY VIDE HIS ORDE R DATED 27/8/2013 DISMISSING THE APPEAL OF THE ASSESSEE. 4. FROM THE ABOVE FACTS, WHICH ARE NOT CONTROVERTE D BY LD. AR, AFTER HEARING BOTH THE PARTIES, I AM OF THE OPINION THAT THE ASSE SSEE, SO FAR AS IT RELATES TO FILING OF APPEAL AGAINST IMPUGNED ORDER PASSED BY LD. CIT(A), WAS NOT PREVENTED BY SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PRE SCRIBED TIME. THE DUE DATE OF FILING PRESENT APPEAL WAS WITHIN 60 DAYS FROM 22/2/ 2009 I.E. IN THE MONTH OF APRIL, 2009. DURING THIS PERIOD ASSESSEE HAS BEEN PURSUI NG THE MATTER BEFORE LD. CIT(A) AND HAS ALSO FILED AN APPEAL WITH LD. CIT(A) AGAINS T LEVY OF CONCEALMENT PENALTY ON 13/4/2010. THE IMPUGNED APPEAL IS FILED AFTER A L ONG GAP OF PERIOD I.E. ON 20/12/2013. THUS, IT CANNOT BE SAID THAT ASSESSEE WAS HAVING SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN PRESCRIBED PERIOD . IT MAY ALSO BE MENTIONED HERE THAT SHRI UMESH VAIDYA, WHO IS SEEKING CONDONATION OF DELAY ON THE GROUND THAT HE WAS ILL, HIMSELF HAS BEEN ATTENDING THE PROCEEDINGS BEFORE THE AO IN RESPECT OF LEVY OF CONCEALMENT PENALTY ON 13/7/2009, 6/8/2009, 18/9 /2009 AND 24/9/2009 AND THIS FACT IS VERY MUCH CLEAR BY THE SUBMISSIONS MA DE ON BEHALF OF THE DEPARTMENT BY THE CONCERNED AO. THE RELEVANT PORTION OF THE R EPLY OF THE AO VIDE LETTER DATED 4/6/2014 IS REPRODUCED BELOW: 6. AFTER THE DISMISSAL OF APPEAL, SHOW CAUSE NOTIC E 274 R.W.S. 271(1)(C) OF THE ACT WAS ISSUED TO THE ASSESSEE BY THE AO ON 06.07.2009 AND SERVED ON THE ASSESSEE ON 07.07.2009. IN RESPONSE, SHRI UMESH VAIDYA, PARTNER ATTENDED ON 13.07.2009 AND SUBMITTED REPLY. SHRI UMESH VAIDYA ALSO ATTENDED ON 0.08.2009, 18.09.2009 PENALTY ORDER U/S 271(1)(C) WAS PASSED ON 09.03.2010 LEVYIN G PENALTY OF RS.73,130/-. ASSESSEE PREFERRED APPEAL AGAINST THE ORDER BEFORE THE CIT (A), THANE ON 13.04.2010. CIT (A), THANE PASSED ORDER ON 27.08.2013 DISMISSIN G THE APPEAL OF THE ASSESSEE. FROM THE FACTS AND CIRCUMSTANCES MENTIONED AS ABOV E, IT IS CLEAR THAT ASSESSEE DID NOT PREFER APPEAL AGAINST IMPUGNED ORDER OF LD. CIT (A) ON ACCOUNT OF PARTNERS ILLNESS BUT THE IMPUGNED APPEAL HAS BEEN FILED ONLY AFTER CONCEALMENT PENALTY HAS BEEN CONFIRMED BY LD. CIT(A). SINCE SUFFICIENT CA USE HAS NOT BEEN MADE OUT BY THE ASSESSEE FOR FILING BELATED APPEAL, I AM NOT SATIS FIED WITH THE REASONS STATED BY THE ITA NO.7060/MUM/2013 (A.Y. 2004-05) 4 ASSESSEE FOR NOT FILING THE APPEAL WITHIN TIME. I DECLINE TO EXERCISE POWER GIVEN UNDER SUB-SECTION(5) OF SECTION 253 OF THE ACT AND DISMISS THE APPEAL FILED BY THE ASSESSEE ON ACCOUNT OF SAME BEING BELATED ONE AND NOT SUPPORTED BY SUFFICIENT CAUSE FOR NON-PRESENTATION OF THE APPEAL WITHIN PR ESCRIBED TIME. 5. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH JUNE, 2014. . & +,- /#0 30/06/2014 , & 7 SD/- (I.P.BANSAL) / JUDICIAL MEMBER MUMBAI; /# DATED : 30 TH JUNE, 2014. VM. . & $(8 98-( . & $(8 98-( . & $(8 98-( . & $(8 98-(/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. $% ! / THE RESPONDENT. 3. :() / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 8=7 $(# , , / DR, ITAT, MUMBAI 6. 7> ? / GUARD FILE. .# .# .# .# / BY ORDER, %8( $( //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI