GAURAVDEEP SHRIRAM BATRA, MUMBAI V. I.T.O. WD. 19(3)(1), MUMBAI

ITA 8372/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78651 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 01-04-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 09-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Period of limitation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI , , , !'# , $ % BEFORE SHRI VIJAY PAL RAO, JM AND SHRI N.K. BIL LAIYA, AM ./ I.T.A. NO.8372/MUM/2011 ( & & & & / ASSESSMENT YEAR :2005-06 GAURAVDEEP SHRIRAM BATRA, 302, CHINAR, 21 ST ROAD, BANDRA (W), MUMBAI-400 050 / VS. THE ITO, WARD 19(3)(1), PIRAMAL CHAMBERS, 3 RD FLOOR, PAREL, MUMBAI-400 012 ' $ ./ ( ./ PAN/GIR NO. : ABZPB 2174Q ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , / APPELLANT BY: SHRI SANJIV M. SHAH *+') - , / RESPONDENT BY: SHRI R.K. SAHU - ./$ / DATE OF HEARING : 01.04.2014 01& - ./$ / DATE OF PRONOUNCEMENT: 01 .04.2014 2 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-30, MUMBAI DT.20.12.2010 PERTAINING TO A.Y. 2005-06. THE GRIEVANCES OF THE ASSESSEE READ AS UNDER: 1. THE LD. CIT(A) ERRED IN UPHOLDING PEAK ADDITION OF RS. 4,24,609/- U/S. 68 OF THE ACT ALTHOUGH THE APPELLAN T HAD DISCHARGED ITS ONUS OF PROVING THE GENUINENESS OF T HE SAID CREDITS. ITA NO. 8372/M/2011 2 2. WITHOUT PREJUDICE TO ABOVE, THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 4,24,609/- MADE BY TH E AO WHO HIMSELF HAS STATED THAT AMOUNT IN RESPECT OF 15 PARTIES WHOSE DETAILS WERE NOT FURNISHED AMOUNTS TO RS. 1,6 4,500/- 2. THE APPEAL IS BARRED BY LIMITATION AS THERE IS A DELAY OF 231 DAYS. THE ASSESSEE HAS EXPLAINED THE REASON FOR THE DELAY IN FILING THE APPEAL IN THE FORM OF AN AFFIDAVIT WHEREIN IT IS STATED THAT AFTER THE RECEIPT OF THE FIRST APPELLATE ORDER THE DEMAND WAS CALCULATED ON ADDITIONS UPHELD WAS AT RS. 1,30,000/- AND ON THE SMALLNESS OF THE DEMAN D THE ASSESSEE DID NOT INTEND TO FILE SECOND APPEAL BEFORE THE TRIBUNAL. IT IS FURTHER STATED THAT UNDER ADVICE THAT NON FILING OF APPEAL MAY INVITE P ENALTY PROCEEDINGS ON THE ADDITIONS UPHELD BY THE FIRST APPELLATE AUTHORI TY, THE ASSESSEE IMMEDIATELY ACTED UPON AND FILED THE APPEAL BEFORE THE TRIBUNAL ON 9.12.2011. 3. WE HAVE CAREFULLY PERUSED THE CONTENT OF THE AFF IDAVIT. THE REASON GIVEN BY THE ASSESSEE IS THAT IF HE DID NOT PREFER APPEAL AGAINST THE QUANTUM ADDITION, THE REVENUE WOULD LEVY PENALTY. HOWEVER, THE NOTICE FOR THE PENALTY ISSUED BY THE AO IS DT. 22.2.2012 W HEREAS THE APPEAL FILED BY THE ASSESSEE IS 9.12.2011 WHICH CLEARLY SHOW THA T THE DELAY IN FILING OF APPEAL HAS NOTHING TO DO WITH THE INITIATION OF PEN AL PROCEEDINGS AS THE PENALTY NOTICE WAS ISSUED IN FEBRUARY, 2012 WHEREAS THE APPEAL WAS FILED IN DECEMBER, 2011. THE SECOND MOST IMPORTANT FACTO R TO BE CONSIDERED HERE IS THAT IN ASSESSMENT YEAR 2006-07, THE TRIBUN AL HAS CONSIDERED A SIMILAR ISSUE VIDE ITA NO. 7938/MUM/2011 WHICH APPE AL WAS BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) DT. 5.9 .2011 WHICH MEANS THAT ON 5.9.2011, WHEN THE ASSESSEE FOUND THAT HE H AS SUCCEEDED IN APPEAL FOR A.Y 2006-07, HE DECIDED TO FILE APPEAL FOR A.Y. 2005-06 ON 9.12.2011. ITA NO. 8372/M/2011 3 4. THE ABOVE MENTIONED SEQUENCE OF EVENTS CLEARLY S HOWS THAT THE CONDUCT OF THE ASSESSEE WAS NOT BONAFIDE FOR FILING THE APPEAL BEYOND PERIOD OF LIMITATION. IT IS A WELL SETTLED PROPOSI TION THAT HE WHO SEEK JUSTICE MUST COME WITH CLEAN HANDS AND THE ASSESSEE S HANDS ARE NOT CLEAN. WE DO NOT FIND ANY BONAFIDE IN DELAY IN FIL ING OF THE APPEAL FOR THE REASONS MENTIONED HEREINABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS NOT ADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 1.4.2014 . 2 - 1& $ 3 45 1.4.2014 1 - 6 SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER $ / ACCOUNTANT MEMBER MUMBAI; 4 DATED 1.4.2014 . . ./ RJ , SR. PS 2 2 2 2 - -- - *. *. *. *. 7&. 7&. 7&. 7&. / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- 4. 8 / CIT 5. 96 *. , , / DR, ITAT, MUMBAI 6. 6: ; / GUARD FILE. 2 2 2 2 / BY ORDER, +. *. //TRUE COPY// < << < / = = = = (DY./ASSTT. REGISTRAR)