Shaik Javeed, Hyderabad V. ITO,Ward-8(3), Hyderabad

ITA 854/HYD/2014

• Counselvise Citation: 85422514 RSA 2014
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R MOHAN REDDY
• Assessee Lawyers: MOHD AFZAL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 144; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 854/HYD/2014 ASSESSMENT YEAR : 2009-10 SRI SHAIK JAVEED HYDERABAD PAN: BEZPS4080N VS. THE INCOME TAX OFFICER WARD-8(3) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: S RI MOHD. AFZAL RESPONDENT BY: SRI R. MOHAN REDDY DATE OF HEARING: 26 .0 8 .2014 DATE OF PRONOUNCEMENT: 26 .0 8 .2014 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-III, HYDERABAD DATED 18.02.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IS DEALING IN PURCHASE AND SALE OF USED VEHICLES AND FILED RETURN OF INCOME FOR A.Y. 2 009-10 ON 9.4.2009 DECLARING AN INCOME OF RS. 1,64,530. T HE CASE WAS TAKEN UP FOR SCRUTINY. NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 25.8.2010 AND SERVED ON THE ASSES SEE. FURTHER NOTICES U/S. 142(1) OF THE ACT WERE ALSO IS SUED ON VARIOUS DATES CALLING FOR CERTAIN INFORMATION AND P OSTING THE CASE FOR HEARING ON 14.3.2011, THEREAFTER ON 8. 6.2011 AND AGAIN ON 30.7.2011. THERE WAS NO COMPLIANCE FR OM THE ASSESSEE TO ANY OF THE NOTICES. AS PER THE ABO VE SAID NOTICES, THE ASSESSEE WAS ASKED TO SPECIFICALLY EXP LAIN THE SOURCES FOR BANK DEPOSIT MADE DURING THE PREVIOUS Y EAR 2 ITA NO. 854/HYD/2014 SRI SHAIK JAVEED ================= RELEVANT TO THE A.Y. 2009-10, AGGREGATING TO RS. 54 ,99,580 IN HIS SB A/C WITH ICICI BANK, CHARMINAR BRANCH, HYDERABAD. SINCE THE ASSESSEE DID NOT REPLY TO ANY OF THE NOTICES, THE ASSESSING OFFICER INFERRED THAT THE AS SESSEE HAS NO REASONABLE EXPLANATION TO OFFER WITH RESPECT TO THE CASH DEPOSITS. THE ASSESSING OFFICER, THEREFORE, P ASSED AN EX-PARTE ORDER U/S. 144 OF THE ACT BY HOLDING TH AT 50% CASH DEPOSITS WERE FROM DISCLOSED SOURCES AND THE BALANCE 50% WHICH WORKED OUT TO RS. 27,49,790 WERE FROM UNDISCLOSED SOURCE. THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME AT RS. 29,14,320. AGGR IEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). 3. THE CIT(A) AT PARA 4 OF HIS ORDER HELD AS FOLLOWS: '4. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED ON 29/11/2011 AND WAS SERVED ON THE APPELLANT ON 06/02/2012. AS PER SECTION 249 OF THE INCOME-TAX ACT, THE APPEAL WAS TO BE FILED WITHIN 30 DAYS I.E., BY 05/03/2012. HOWEVER, THE APPEAL HAS BEEN FILED ON 12/04/2012 I.E., LATE BY 35 DAYS. THERE IS NO APPLICATION FOR CONDONATION OF DELAY. THE APPELLANT WAS GIVEN OPPORTUNITY DURING APPEAL PROCEEDINGS TO BE ABLE TO MAKE AN APPLICATION FOR CONDONATION OF DELAY AND TO GIVE REASONS FOR THE SAME, BUT NO ONE APPEARED ON THAT DAY AND NO WRITTEN SUBMISSIONS OF ANY KIND WERE FILED.' 4. THE CIT(A) HELD THAT IN THE ABSENCE OF ANY APPLICATION FOR CONDONATION OF DELAY OF 35 DAYS, TH E APPEAL CANNOT BE ADMITTED AND DISMISSED IT IN LIMINE. AGG RIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, SRI MOHD. AFZAL, BROUGHT TO OUR NOTICE LETTER DATED 12.4.2012 ADDRESSED TO THE CIT(A)-III, HYDERABAD WHEREIN AN 3 ITA NO. 854/HYD/2014 SRI SHAIK JAVEED ================= AFFIDAVIT FOR CONDONATION OF DELAY HAD BEEN SUBMITT ED BY THE ASSESSEE. IN THAT AFFIDAVIT THE ASSESSEE HAS S TATED AS FOLLOWS: 'I, THE ABOVE NAMED DEPONENT TAKE OATH AND STATE AS UNDER: I HAVE CHANGED FROM H. NO. 19-2-244/9, RAMNASPURA, BAHADUPURA, HYDERABAD-500 064 TO A NEARBY LOCALITY I.E., H. NO. 19-2- 220/9, OPP. ZOO PARK, RAMNASPURA, BAHADURPURA, HYDERABAD-500 064. THEREFORE, THE NOTICES ISSUED BY THE DEPARTMENT PRIOR TO ASSESSMENT PROCEEDINGS WERE NOT SERVED. THE DEPARTMENT SERVED THE ASSESSMENT ORDER BY TRACING MY NEW ADDRESS BY LOCAL ENQUIRIES ON 07.03.2012. THE APPEAL IS TO BE FILED ON OR BEFORE 09.04.2012, HOWEVER, I WAS OUT OF STATION ON 09.04.2012, THEREFORE, THE SAME IS BEING FILED ON 12.04.2012, APPARENTLY WITH A DELAY OF ONLY TWO DAYS, BUT TECHNICALLY THE DELAY IS 5 DAYS AS THE ORDER IS SERVED ON 07.03.2012. THE CIRCUMSTANCES WHICH RESULTED IN THE DELAY ARE BEYOND MY CONTROL AND NOT INTENTIONAL, THEREFORE, THE HONBLE COMMISSIONER IS REQUESTED TO CONDONE THE DELAY TO ADMIT APPEAL TO DECIDE ON MERITS.' 6. DURING THE HEARING, THE LEARNED DR POINTED OUT THAT THE ASSESSEE HAD NOT INFORMED THE DEPARTMENT AS TO THE CORRECT ADDRESS OR RATHER THE CHANGE OF ADDRESS AND HAD PUT THE DEPARTMENT TO GREAT INCONVENIENCE. 7. WE HAVE HEARD BOTH THE PARTIES. WE HAVE PERUSED THE AFFIDAVIT AND FIND THAT THE ASSESSEE HIMSELF HA S STATED THAT THE DEPARTMENT SERVED THE ASSESSMENT ORDER BY TRACING THE NEW ADDRESS OF THE ASSESSEE AFTER MAKIN G LOCAL ENQUIRY. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS BEEN NEGLIGENT AND CARELESS IN HIS ATTITUDE OF NOT INFOR MING THE DEPARTMENT AS TO THE CHANGE OF ADDRESS. THE DELAY HAD ARISEN MAINLY DUE TO THE ATTITUDE OF THE ASSESSEE I N NOT MAKING REPRESENTATION BEFORE THE DEPARTMENT SERIOUS LY. 4 ITA NO. 854/HYD/2014 SRI SHAIK JAVEED ================= 8. IN THESE CIRCUMSTANCES, IT WAS POINTED OUT BY THE BENCH THAT THE REVENUE AUTHORITIES HAVE NO OTHER OP TION EXCEPT TO PASS EX-PARTE ORDER. FURTHER, THE TIME A ND EFFORT WASTED BY THE AUTHORITIES FOR SEARCHING AND IDENTIF YING THE NEW ADDRESS AS WELL AS OTHER PROCEDURES CANNOT BE COMPENSATED EASILY. IT WAS, THEREFORE, PRONOUNCED IN THE COURT THAT A FINE OF RS. 3,500 SHALL BE IMPOSED ON THE ASSESSEE WHICH WOULD BE A PRECEDENT IN THE CASES OF SIMILAR DELAYS ARISING OUT OF THE INDIFFERENT ATTIT UDE OF THE ASSESSEES AS SUCH. HENCE, WE IMPOSE THE PENALTY OF RS. 3,500 TO BE PAID BY THE ASSESSEE ACCORDINGLY. HOWE VER, IN THE INTEREST OF JUSTICE, SINCE THE MATTER HAS BEEN DECIDED EX-PARTE, AN OPPORTUNITY HAD NOT BEEN GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE. WE SET ASIDE THE O RDER OF THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE ON THE ISSUE OF ADDITIO N OF 50% OF CASH DEPOSITS AMOUNTING TO RS. 27,49,790 AS UNDISCLOSED INCOME TO BE EXAMINED BY HIM AND TO DEC IDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 26 TH AUGUST, 2014 SD/ - (P.M. JAGTAP) ACCOUNTANT MEMBER SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER HYDERABAD, DATED THE 26 TH AUGUST, 2014 TPRAO 5 ITA NO. 854/HYD/2014 SRI SHAIK JAVEED ================= COPY TO: 1. SHRI SHAIK JAVEED, C/O. MOHD. AFZAL, ADVOCATE, 11 - 5 - 465, SHERSON'S RESIDENCY, FLAT NO. 402, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD-500 004. 2. THE INCOME TAX OFFICER, WARD - 8(3), RANGE - 8, HYDERABAD. 3. THE CIT(A) - III, HYDERABAD. 4. THE CIT - II, HYDERABAD. 4 . THE DR, A - BENCH, ITAT, HYDERABAD.