Shri Himanshu Maganbhai Patel, Surat V. The Income Tax Officer (Intl. Taxn.), Surat

ITA 835/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9823 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA LD
• Assessee Lawyers: KK SHAH
• Keywords: Competent authority; Condonation of delay
• Section: 271(1)(c)

Judgement Text

HIMANSHU MAGANBHAI PATEL & HINA H.PATEL VS. ITO, (INT. TAXN.), SURAT/ITA NO.834 TO 837 /AHD/2017 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI H.S.SIDHU, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A. NOS.834 & 835/AHD/2017 [ [ / ASSESSMENT YEARS : 2007-08 AND 2008-09 SHRI HIMANSHU MAGANBHAI PATEL, AT & PO.BAMANIYA, TAL, BARDOLI, DIST. SURAT. [PAN: BLIPP 0522 Q] VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION, SURAT. APPELLANT /RESPONDENT . . ./ I.T.A. NOS.836 & 837/AHD/2017 [ [ / ASSESSMENT YEARS : 2008-09 AND 2009-10 HINA HIMANSHU PATEL, AT & PO.BAMANIYA, TAL, BARDOLI, DIST. SURAT. [PAN: ARNPP 3602 G] VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION, SURAT. APPELLANT /RESPONDENT [ /ASSESSEE BY: SHRI K.K.SHAH CA /REVENUE BY: SMT.ANUPAMA SINGLA - LD.SR.DR / DATE OF HEARING: 30 .04.2019 /PRONOUNCEMENT ON: 01 .0 5 .2019 /O R D E R PER H.S.SIDHU, JM: 1. THE ASSESSEES HAVE FILED THE PRESENT APPEALS AGAINST THE SEPARATE IMPUGNED ORDERS ALL DATED 07.06.2016 PASSED BY THE LD. COMMISSIONER HIMANSHU MAGANBHAI PATEL & HINA H.PATEL VS. ITO, (INT. TAXN.), SURAT/ITA NO.834 TO 837 /AHD/2017 PAGE 2 OF 5 OF INCOME TAX (APPEALS-13), AHMEDABAD FOR THE ASSESSMENT YEARS 2007- 08 TO 2009-10. 2. IT IS NOTED THAT THE ASSESSEES FILED THE PRESENT APPEALS AGAINST THE IMPUGNED ORDERS DATED 07.06.2016 WHICH ARE DELAYED BY 201 DAYS. THE REGISTRY HAS RAISED THE OBJECTION AND COMMUNICATED TO THE ASSESSEE ABOUT THE 201 DAYS DELAY IN FILING THE PRESENT APPEALS. IN RESPONSE TO THE OBJECTION OF DELAY, BOTH THE ASSESSEES HAVE FILED THE XEROX PHOTOCOPIES OF THE AFFIDAVITS DATED 11.01.2019 IN WHICH THE ASSESSEES HAVE STATED THAT THEY ARE NRI, STAYING IN USA AND THERE IS NO SUCH PERSON TO LOOK AFTER THE TAXATION PROCEEDINGS AND THEREFORE, THE APPEALS AGAINST THE LEVY OF PENALTY U/S. 271(1) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) COULD NOT BE FILED IN TIME. IT WAS FURTHER STATED IN THE AFFIDAVIT THAT THE APPEALS WERE FILED WHEN THEY VISITED INDIA. IT WAS FURTHER STATED IN THE AFFIDAVIT THAT AUTHORISED REPRESENTATIVE OF THE ASSESSEE DID NOT INFORM THEM ABOUT THE LEVY OF PENALTY. AT THE TIME OF HEARING, LD. A.R. FOR THE ASSESSEE, SH. K.K. SHAH, CA REQUESTED THAT CONSIDERING THE REASONS MENTIONED IN THE AFFIDAVIT DATED 11.01.2019, THE DELAY OF 201 DAYS IN FILING THE APPEALS MAY BE CONDONED AND APPEAL MAY BE ADMITTED AND HEARD ON MERIT BECAUSE ADDITION IN THE QUANTUM APPEAL HAS BEEN DELETED BY THE TRIBUNAL HIMANSHU MAGANBHAI PATEL & HINA H.PATEL VS. ITO, (INT. TAXN.), SURAT/ITA NO.834 TO 837 /AHD/2017 PAGE 3 OF 5 3. ON THE CONTRARY, LD. DR STRONGLY OPPOSED THE REQUEST OF THE ASSESSEES AR FOR CONDONING THE HUGE DELAY OF 201 DAYS AND STATED THAT ASSESSEE HAS NOT MENTIONED ANY VALID REASONS FOR CONDONATION OF DELAY OF 201 DAYS IN FILING THE PRESENT APPEALS. SECONDLY, SHE ARGUED THAT ASSESSEE HAS ALSO NOT FILED ANY EVIDENCE SUPPORTING THE CONTENTION OF THE ASSESSEES AFFIDAVIT AND ONLY FILED THE XEROX COPY OF THE AFFIDAVIT AND ASSESSEE HAS NOT FILED ANY ORIGINAL AFFIDAVIT ATTESTED BY THE COMPETENT AUTHORITY. THEREFORE, SHE REQUESTED THAT HUGE DELAY OF 201 DAYS MAY NOT BE CONDONED AND THE APPEAL OF THE ASSESSEE MAY BE DISMISSED BEING TIME BARRED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES. WE ARE OF THE VIEW THAT LD. CIT(A) HAS PASSED THE IMPUGNED ORDER DATED 07.06.2016 AND CONFIRMED THE LEVY OF PENALTY MADE BY THE AO U/S. 271(1)(C) OF THE ACT AND WE ALSO FIND THAT BEFORE THE LD. CIT(A), ASSESSEES A.R. HAD FILED WRITTEN SUBMISSIONS AND DID NOT FILE ANY DOCUMENTARY EVIDENCE SUPPORTING THE CLAIM OF THE ASSESSEE. THEREFORE, THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY IN DISPUTE VIDE RESPECTIVE IMPUGNED ORDER DATED 07.06.2016 AGAINST WHICH THE ASSESSEES HAVE FILED THE PRESENT APPEALS BEFORE THE TRIBUNAL, WHICH ARE TIME BARRED BY 201 DAYS. WE NOTE THAT THE REGISTRY HAS RAISED THE OBJECTION AND COMMUNICATED TO THE ASSESSEE REGARDING HIMANSHU MAGANBHAI PATEL & HINA H.PATEL VS. ITO, (INT. TAXN.), SURAT/ITA NO.834 TO 837 /AHD/2017 PAGE 4 OF 5 THE DELAY OF 201 DAYS IN FILING THE APPEALS AND IN RESPONSE TO THE SAME, THE ASSESSEES HAVE FILED THE XEROX COPIES OF THE AFFIDAVITS DATED 11.01.2019. FOR THE SAKE OF CONVENIENCE, THE CONTENTS OF THE ONE AFFIDAVIT DATED 11.01.2019 OF THE ASSESSEE IS REPRODUCED BELOW:- AFFIDAVIT I, THE UNDERSIGNED, MR. HIMANSHU MAGNABHAI PATEL, AGED 16 YEARS, AT BHAMIYA BARDOLI, SURAT TAKE ON OATH AND STATE SOLEMNLY AFFIRMATION AS UNDER. 1) THAT I AM NRI AND STAYING IN USA. 2) THAT THERE IS NO PERSON IN BARDOLI WHO CAN LOOK AFTER THE TAXATION PROCEEDINGS. 3) THAT THE APPEAL FOR LEVY OF PENALTY U/S.271(1)(C) OF THE ACT COULD NOT BE FILED IN TIME AS THERE WAS NO PERSON WHO CAN LOOK AFTER THE INCOME-TAX PROCEEDINGS. 4) THAT THE APPEAL WAS FILED WHEN I VISITED INDIA AROUND THAT PERIOD. 5) THAT MY THE THEN AR ASHOK CHAMPANERIA DID NOT INFORM ME ABOUT THE LEVY OF PENALTY. 6) THAT THE ABOVESAID FACTS ARE TRUE AND CORRECT AND FOR THAT THIS AFFIDAVIT IS EXECUTED. SD/- (HIMANSHU MAGNABHAI PATEL) DATE : 11.01.2019 PLACE: SURAT 5. KEEPING IN VIEW OF THE DELAY OF 201 DAYS IN FILING THE PRESENT APPEALS AND IN VIEW OF THE FILING OF XEROX COPY OF THE AFFIDAVIT FILED BY BOTH THE ASSESSEE IN ALL THE AFORESAID RESPECTIVE 04 APPEALS, WE ARE OF THE VIEW THAT NO PLAUSIBLE REASON HAS BEEN MENTIONED BY THE ASSESSEE FOR CONDONATION OF HUGE DELAY OF 201 DAYS. EVEN OTHERWISE, THE ASSESSEE DID NOT BOTHER TO FILE THE ORIGINAL AFFIDAVIT ALONG WITH THE APPLICATION FOR MENTIONING THE VALID REASONS FOR CONDONATION OF DELAY AND ASSESSEE HAS HIMANSHU MAGANBHAI PATEL & HINA H.PATEL VS. ITO, (INT. TAXN.), SURAT/ITA NO.834 TO 837 /AHD/2017 PAGE 5 OF 5 ALSO NOT FILED ANY EVIDENCE TO SUPPORT THE CONTENTION OF THE ASSESSEE MADE IN THE XEROX COPY OF THE AFFIDAVIT. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND REASONS MENTIONED BY THE ASSESSEE IN THE XEROX COPIES OF THE AFFIDAVITS, WE ARE OF THE CONSIDERED VIEW THAT BOTH THE ASSESSEES HAVE NOT ESTABLISHED ANY REASONS FOR CONDONATION OF HUGE DELAY OF 201 DAYS IN FILING THE PRESENT APPEALS AND AS WELL AS ASSESSEES HAVE NOT FILED ANY EVIDENCE IN THE SHAPE OF ANY AFFIDAVIT OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE WHO DID NOT FILE THE APPEAL IN TIME. THEREFORE, WE ARE UNABLE TO CONDONE THE HUGE DELAY OF 201 DAYS IN FILING THE PRESENT APPEALS BEFORE THE TRIBUNAL, HENCE, THE APPEALS OF THE ASSESSEE ARE DISMISSED BEING TIME BARRED. 7. IN THE RESULT, ALL THE 04 APPEALS FILED BY THE BOTH THE ASSESSEES STAND DISMISSED. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.05.2019. SD/- SD/- (O.P.MEENA) (H.S.SIDHU) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 1 ST MAY , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT