Late Ganeshmal M. Gundesha, Kolhapur V. Dy. CIT,Circle 1 (2), Kolhapur

ITA 793/PUN/2002

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56442 (ITAT-PUNE)
• Duration Of Justice: 9 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-08-2011
• Assessment Year: 1992-1993
• Appeal Filed On: 25-08-2002
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Additional evidence; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES, B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI D. KARUNAKARA RAO, AM I.T.A. NO. 793/PN/2002 : A.Y. 1992-93 LATE GANESHMAL M GUNDESHA L/H SMT SUSHILABAI G GUNDESHA 54-B GUJARI, KOLHAPUR PAN NOT ON RECORD APPELLANT VS. DY. CIT CIR. 1(2) KOLHAPUR RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY: SMT. ANN KAPTHUAMA DATE OF HEARING : 25-8-2011 DATE OF PRONOUNCEMENT: ORDER PER SHRI SHAILENDRA KUMAR YADAV, JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R OF THE CIT(A) KOLHAPUR DATED 28-3-2002 FOR A.Y. 1992-93 ON VARIOUS ARGUMENTATIVE GROUNDS RUNNING INTO TWO PAGES. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND WHICH READS AS UN DER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT PROCEEDINGS ITSELF ARE BAD IN LA W HAVING CONCLUDED AFTER GRANTING HEARING ON 2-12-199 8 WHEN IN FACT ON 2-12-1998 THE ASSESSEE WAS ALREADY DEAD ON 13-10-1998. THE CONCLUSION OF THE ASSESSMENT PROCEEDINGS WAS ON A DEAD PERSON WHICH GOT LEGALLY ABATED IN VIEW OF PROVISIONS OF O.22 R 6 OF THE CIVIL PROC EDURE CODE 1908. THEREFORE, THE ASSESSMENT PROCEEDINGS BE DECLARED AS ABATED ITA NO. 793/PN/02 GANESHMAL GUNDESHA A.Y. 1992-93 , 2 2. BY WAY OF AN ADDITIONAL GROUND THE LEARNED AR FO R THE ASSESSEE HAS CONTENDED THAT THE ASSESSMENT ORDER HA S BEEN PASSED AGAINST A DEAD PERSON. ACCORDING TO THE LEA RNED AR THE ASSESSEE DIED ON 13-10-1998. THE UNDISPUTED FACTS ARE THAT THE ASSESSMENT ORDER WAS PASSED ON 15-12-1998. THE LEARNED AR FOR THE ASSESSEE HAS FILED A LETTER ADDRESSED T O THE ASSTT. CIT CIR. 1(2) KOLHAPUR, DATED 30-11-1998, INTER ARE A STATING AS UNDER FROM: 1. LATE GUNDESHA GANESHMAL MUNILAL GIR NO. 718-G 2. SMT. GUNDESHA KANKUBAI M L/H OF LATE GUNDESHA M. DANAJI 3. GUNDESHA RATANLAL MUNILAL GIR NO. 716-G 54-B GUJARI, KOLHAPUR DATE: NOV. 30, 1998 TO, THE ASSTT. CIT CIR. 1(2), KOLHAPUR SIR, SUB: REQUEST FOR SHORT ADJOURNMENT WITH REFERENCE TO ABOVE SUBJECT, I HAVE TO SUBMIT T HAT I AM IN RECEIPT OF NOTICE U/S 143(2) OF THE I.T. ACT FOR A. Y. 1992-93. AS MY BROTHER GANESHMAL MUNILAL GUNDESHA EXPIRED ON 13-10- 1998, AND DUE TO THIS MISHAP IN MY FAMILY, I COULD NOT LOOK AFTER THESE MATTERS. IT IS THEREFORE,, REQUESTED THAT 15/20 DAYS TIME MA Y PLEASE BE ALLOWED TO ME CONSIDERING MY DIFFICULTY. THANKING YOU, YOURS FAITHFULLY, SD/- (RATANLAL M. GUNDESHA) ITA NO. 793/PN/02 GANESHMAL GUNDESHA A.Y. 1992-93 , 3 3. THE LEARNED AR FOR THE ASSESSEE CLAIMED TO HAVE FILED THE ABOVE MENTIONED LETTER DURING THE ASSESSMENT PROCEE DINGS. THIS IS ADDITIONAL EVIDENCE WHICH HAS NOT BEEN FILED IN PROPER FORMAT. THE LEARNED AR HAS NOT SUBSTANTIATED THE CONTENTION TAKEN ON BEHALF OF THE ASSESSEE THAT THE ABOVE SAID LETTER W AS PLACED ON RECORD DURING THE ASSESSMENT PROCEEDINGS. HEAVY BUR DEN IS ON THE ASSESSEE OR THE LEGAL HEIRS THAT HE WAS PREVENT ED BY REASONABLE CAUSE TO PLACE THE SAME BEFORE THE FIRST APPELLATE AUTHORITY. THERE IS NOTHING ON RECORD TO SUGGEST T HAT THE SAME WAS PRESENTED BEFORE THE CIT(A) DURING THE FIRST AP PELLATE PROCEEDINGS. 4. WE ARE AWARE OF THE FACT THAT THE LEGAL ISSUE CA N BE RAISED AT ANY STAGE BUT THE BURDEN IS ON THE ASSESSEE TO E STABLISH THE SAME BEYOND DOUBT THAT THE ASSESSEE WAS PREVENTED T O PLACE THE ADDITIONAL EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY. NOTHING IS BROUGHT ON RECORD TO SUGGEST THAT THE AD DITIONAL EVIDENCE WAS PLACED DURING THE APPELLATE PROCEEDING S. MOREOVER, AS DISCUSSED ABOVE, THE LEARNED AR FOR TH E ASSESSEE HAS NOT SUBSTANTIATED THE CONTENTION THAT THE ABOVE SAID LETTER WAS PLACED ON RECORD OF ASSESSING OFFICER DURING TH E ASSESSMENT PROCEEDINGS. IN VIEW OF THIS, WE FIND T HAT THE ASSESSEE HAS NOT DISCHARGED THE BURDEN CAST UPON HI M WITH REGARD TO THE SUBMISSIONS THAT THE ABOVE SAID LETTE R WAS PLACED ITA NO. 793/PN/02 GANESHMAL GUNDESHA A.Y. 1992-93 , 4 DURING THE ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABOVE, THE ASSESSEE CANNOT TAKE ADVANTAGE OF HIS OWN LAPSES. THE LEARNED AR HAS NOT ADDRESSED ANYTHING ON MERITS OF THE ISSU E AT HAND WHICH AMOUNTS TO NON-PRESSING OF THE SAME. THE REA SONED FINDING OF THE CIT(A) NEEDS NO INTERFERENCE FROM OU R SIDE. WE UPHOLD THE SAME. IN VIEW OF THIS, THE APPEAL OF TH E ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST 2011. SD/- SD/- (D. KARUNAKARA RAO ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 30 TH AUGUST 2011 ANKAM COPY FORWARDED TO: (1) ASSESSEE (2) DEPARTMENT (3) CIT- KOLHAPUR (4) CIT(A)- KOLHAPUR (5) THE D.R. ITAT PUNE BENCH B , PUNE TRUE COPY BY ORDER, ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE