SUJATA SURENDRA KHANDEKAR, MUMBAI V. ITO 16(2)(4), MUMBAI

ITA 7316/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0382 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 10-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH , MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 7316 / MUM/ 201 2 ( / ASSESSMENT YEAR: 2008 - 09 ) SMT. SUJATA SURENDRA K HANDEKAR, C/O GOMANTAK HINDU LODGE, 366, CONGRESS HOUSE, V.P. ROAD, GRANT ROAD, MUMBAI - 400007 VS. THE INCOME TAX OFFICER - 16(2)(4), MUMBAI ./ ./ PAN/GIR NO. : ABBPK 9552 B ( / APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY : NONE / REVENUE BY : SHRI VISHWAS MUNDHE (DR) / DATE OF HEARING : 15 / 0 3 /201 7 / DATE OF PRONOUNCEMENT : 09 /06 /2017 / O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL HA S BEEN PREFERRED BY THE ASSESSEE AGAINST ORDE R DATED 17 /08 /2012 PASSED BY THE LD. CIT (APPEALS) - 27 , MUMBAI PERTAINING TO THE ASSESSMENT YEAR 20 08 - 09 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE FILED AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHO RT THE ACT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER ON THE FOLLOWING E F FECTIVE GROUND S : - . 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C.I.T. (A) ERRED IN CONFIRMING THE ADDITION OF RS. 7,37,501/ - 2 ITA NO 7316 /MUM/201 2 ASSESSMENT YEAR: 20 08 - 09 MADE BY THE LD . AO ON ACCOUNT OF BANK INTEREST IN THE HANDS OF THE APPELLANT AS AN INDIVIDUAL FOR A.Y. 2008 - 09. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF INTEREST IN THE HANDS OF THE APPELLANT BY HOLDING THAT THE SHARE IN THE ESTATE ALLOTTED BY THE CIVIL JUDGE OF GOA TO THE APPELLANT WAS IN HER INDIVIDUAL CAPACITY EVEN THOUGH THE COURT ORDER AND THE THREE SALE DEEDS DESCRIBED THE CAPACITY OF THE APPELLANT AS HEAD OF FAMILY. 3. ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) FAILED TO APPRECIATE THAT THE APPELLANT COULD NOT BECOME EXCLUSIVE OWNER OF THE LAND OR SALE PROCEEDS THEREOF UNDER EITHER THE GOAN CIVIL LAWS OR UNDER THE HINDU SUCCESSION ACT 1956 PARTICULAR LY WHEN THE HUSBAND AS WELL AS THE FATHER IN LAW OF THE APPELLANT HAD DIED INTESTATE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS NOT JUSTIFIED IN HOLDING THAT THE AGRICULTURAL INCOME OF RS. 50,000/ - BELONGED T O THE APPELLANT AS AN INDIVIDUAL OWNER AND THEREBY INCLUDING THE ENTIRE AGRICULTURAL INCOME IN THE HANDS OF THE APPELLANT FOR RATE PURPOSES. 3. THIS CASE WAS FIXED FOR HEARING ON 15/03/2017. WHEN THE CASE WAS CALLED FOR HEARING , NEITHER THE ASSESSEE NOR ANY AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF THE ASSESSEE. PERUSAL OF RECORD REVEALED THAT ON 26.8.2015, THE BENCH DID NOT FUNCTION AND THE CASE WAS ADJOURNED TO 07.3.2016 . ACCORDINGLY, THE P ARTIES WERE INFORMED . ON 07/03/2016 , SINCE, NONE APPEAR ED ON BEHALF OF THE ASSESSEE, CASE WAS ADJOURNED TO 24.8.2016 AND FRESH NOTICE WAS SENT THROUGH REGISTERED POST (RPAD) . DESPITE SERVICE OF NOTICE, THE ASSESSEE DID NOT APPEAR ON 24/08/2016 . THEREFORE, WE ARE SATISFIED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING ITS CASE. ACCORDINGLY, WE DECIDED TO PROCEED WITH THE CASE ON THE BASIS OF MATERIAL ON RECORD AND ASKED THE DEPARTMENTAL REPRESENTATIVE (DR) TO ARGUE ON BEHALF OF THE REVENUE. 3 ITA NO 7316 /MUM/201 2 ASSESSMENT YEAR: 20 08 - 09 4. AT THE OUTSET THE LD. DR RAISED PRELIMINARY OBJECTION BY POINTING OUT THAT THE APPEAL IS BARRED BY LIMITATION AS THERE IS A DELAY OF 30 DAYS IN FILING THE PRESENT APPEAL. THE LD. DR FURTHER SUBMITTED THAT THE CAUSE OF DELAY MENTIONED IN THE APPLICATION FOR CONDONATION OF DELAY IS NO SUFFICIENT TO CONDONE THE DELAY, THERE FORE, THE APPEAL IS NOT MAINTAINABLE. 5. WE HAVE PERUSED THE RECORD IN THE LIGHT OF THE SUBMISSIONS OF THE LD. DR. WE FIND THAT THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT ON THE GROUND THAT THE COPY OF IMPUGNED ORDER WAS RECEIVED ON 11.9.2012 AND THE APPEAL WAS REQUIRED TO BE FILED ON OR BEFORE 10.11.2012. HOWEVER, IN THE AFFIDAVIT THE ASSESSEE HAS STATED THAT SHE HAD TO ATTEND HER DAUGHTER WHO REMAINED ADMITTED IN APOLLO HOSPITAL GOA FOR FOUR WEEKS IN CONNECTION WITH HER TREATMENT AND THE MANAGER WHO RECEIVED THE IMPUGNED ORDER DID NOT INFORM HER DUE TO WHICH THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED PERIOD. 6. WE DO NOT FIND ANY DOCUMENTARY EVIDENCE ON RECORD WHICH CORROBORATES THE VERSION OF THE ASSE SSEE OR SUGGESTS THAT WHATEVER HAS BEEN STATED BY THE ASSESSEE IN HER APPLICATION FOR CONDONATION OF DELAY AND THE AFFIDAVIT ARE CORRECT. HENCE, IN THE ABSENCE OF ANY EVIDENCE IT CANNOT BE HELD THAT THE ASSESSEE HAS EXPLAINED THE DELAY TO CONDONE THE SAME. THE HONBLE SUPREME COURT AND THE HIGH COURTS HAVE TIME AND AGAIN HELD THAT WHEN MANDATORY PROVISION IS NOT COMPLIED WITH AND THE DELAY IS NOT PROPERLY, SATISFACTORILY AND CONVINCINGLY EXPLAINED, THE COURT CANNOT CONDONE THE DELAY ON SYMPATHETIC GROUNDS A LONE. HENCE, IN THE PRESENT CASE, WE DO NOT FIND SUFFICIENT GROUNDS TO CONDONE THE DELAY OF 30 DAYS IN FILING THE PRESENT APPEAL. CONSEQUENTLY, WE DISMISS THE APPLICATION FOR CONDONATION OF DELAY AND ALSO DISMISS THE APPEAL AS NOT MAINTAINABLE BEING BARRED BY LIMITATION. 4 ITA NO 7316 /MUM/201 2 ASSESSMENT YEAR: 20 08 - 09 IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 2009 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09TH JUNE , 2017. SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09 / 06 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI