BIMAL BHATT, MUMBAI V. ASST CIT 11(2), MUMBAI

ITSSA 2/MUM/2017

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9361 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-10-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 22-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: THARIAN OOMMEN
• Keywords: Search and seizure; Block assessment; Condonation of delay; Bonafide mistake
• Section: 158BC(c); 158BC

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “बी” , मुंबई Įी ǒवकास अवèथी, Ûयाियक सदèय एंव Įी एम बालागनेश, लेखा सदèय के सम¢ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “B”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER आ(एस.एस.)अ.सं. 02/मुं/2017 ( ब.पी. 01.04.1986 to 11.12.1995) IT (SS) A NO.02/MUM/2017 (Block Period 01.04.1986 to 11.12.1995) Mr. Bimal Bhatt, 32 RPI House, 4 th Floor, Janmabhoomi Marg, Fort, Mumbai-400001. PAN: AASPB0014B ...... अपीलाथȸ /Appellant बनाम Vs. ACIT- 11(2), Room No. 440, 4 th Floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. ..... Ĥितवादȣ/Respondent अपीलाथȸ Ʈारा/ Appellant by : None Ĥितवादȣ Ʈारा/Respondent by : Sh. Tharian Oommen सुनवाई कȧ ितिथ/ Date of hearing : 04/08/2021 घोषणा कȧ ितिथ/ Date of pronouncement : 08/10/2021 आदेश/ ORDER PER VIKAS AWASTHY, J.M: This appeal by the assessee is directed against the assessment order dated 31.12.2007 passed under section 158BC(c) read with section 254 of the Income 2 IT(SS)A NO.02/MUM/2017 (Block Period 01.04.1986 to 11.12.1995) Tax Act, 1961 (hereinafter referred to as ‘the Act’) for the block assessment period 01.04.1986 to 11.12.1995. 2. This appeal by the assessee is time barred. The assessee has filed an application seeking condonation of delay, the said application is supported by an affidavit. The delay in filing of the appeal has occurred as the assessee had pursued wrong remedy for the redressal of his grievance. The documents on record suggest that there was bonafide mistake on the part of assessee in filing of the present appeal which has caused substantial delay in filing of present appeal. The Revenue has not seriously contested the delay application. The Hon’ble Apex Court in the case of Ramnath Sao v/s Goverdhan Sao & Ors reported as (2002) AIR 1201 has held that while considering application for condonation of delay acceptance of explanation furnished should be the rule and refusal an exception, more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. By taking a pedantic and hyper- technical view, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing loss and irreparable injury to the party against whom lis terminates. Taking into consideration, the facts narrated by the appellant causing delay in filing of the appeal and the law laid down by the Hon’ble Apex Court for liberally considering reasons explained causing delay, the delay in filing of present appeal is condoned and appeal is admitted for hearing on merits. 3. The notice of appeal was sent to the assessee/appellant on the address mentioned in Form-36, the same has been received back from the postal authorities with remarks ‘Left’. We find that on previous occasions also notice sent to the assessee through RPAD was received back unserved. Since the time, this appeal has been listed for hearing, none has appeared to represent the 3 IT(SS)A NO.02/MUM/2017 (Block Period 01.04.1986 to 11.12.1995) assessee except for the short duration between 06.04.2019 to 09.10.2019, one Shri Subhas Shinde appeared to represent the assessee/appellant. On each date of hearing i.e. 16.04.2019, 11.06.2019, 23.07.2019, 24.07.2019 and 09.10.2019 Sh. Subhash Shinde sought adjournment on behalf of the assessee. It would be relevant to mention here that it is unclear as to in what capacity Sh. Subhas Shinde was appearing on behalf of the assessee/appellant as no letter of authority from the assessee in his favour is available in the file. On each date of appearance Sh. Subhas Shinde has been seeking adjournment by furnishing a letter from the assessee/appellant. A further perusal of file reveals that the assessee/appellant has furnished letter dated 04.02.2020 wherein he has requested to decide the appeal on the basis of written arguments already submitted. After making enquiries from the Registry and examining the case file, we are unable to trace any written submissions filed by the assessee. 4. The conduct of the assessee shows that the assessee/appellant is not keen to pursue the appeal. Since the time, the appeal was filed in 2017, it is languishing in the Tribunal without any effort/assistance from assessee/appellant for disposal of appeal. Hence, we are proceeding to decide the appeal with the assistance of ld. DR and material available on record. 5. Sh. Tharian Oommen representing the Department submitted that this appeal pertains to block assessment period under old search and seizure provisions. The addition was made by the AO on the basis of incriminating material seized during search operation at the premises of the assessee on 12.12.1995. The ld. DR vehemently supported the assessment order and prayed for dismissing the appeal of assessee. 4 IT(SS)A NO.02/MUM/2017 (Block Period 01.04.1986 to 11.12.1995) 6. We have heard the submission made by ld. DR and have examined the impugned order. At the outset, we observe that this is the third round of litigation before the Tribunal by the assessee. The assessee had initially filed appeal in IT(SS)A No. 52/Mum/1997 for the block period 01.04.1986 to 11.12.1995 against the assessment order dated 26.02.1997 passed under section 158BC of the Act. The Tribunal vide order dated 31.01.2007 directed the AO to frame fresh assessment after furnishing copies of all relevant papers and documents to the assessee. In compliance of the aforesaid order of Tribunal, the AO passed the assessment order dated 31.12.2007. The assessee had assailed the assessment order dated 31.12.2007 before CIT(A). Under erstwhile provisions of block assessment in search and seizure cases, the appeal against assessment order would directly lie to the Tribunal. The assessee had wrongly chosen the remedy of appeal before the CIT(A). The CIT(A) vide order dated 17.03.2011 dismissed the appeal of assessee in limine being not maintainable. Against the order of CIT(A) the assessee filed appeal before the Tribunal in IT(SS)A No. 39/M/2011 on 28.04.2011. This appeal was heard on 26.12.2016 and the tribunal vide order dated 23.01.2017 dismissed the appeal of the assessee and liberty was granted to file fresh appeal before the Tribunal against the assessment order dated 31.12.2007 passed under section 158BC(c) read with section 254 of the Act. Hence, the present appeal by the assessee. 7. In grounds of appeal the assessee has challenged the validity of assessment order passed under section 158BC read with section 254 of the Act and the addition made on merits. The grounds of appeal are argumentative. However, there is no documentary evidence to substantiate the contentions raised in the grounds of appeal. In the absence of any contrary material, we find 5 IT(SS)A NO.02/MUM/2017 (Block Period 01.04.1986 to 11.12.1995) no reason to interfere with the impugned order. The impugned order is upheld and the appeal of assessee is dismissed. 8. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on Friday, the 08 th day of October, 2021. Sd/- Sd/- (M. BALAGANESH) (VIKAS AWASTHY) लेखा सदèय/ACCOUNTANT MEMBER Ûयाियक सदèय/JUDICIAL MEMBER मुंबई/Mumbai, Ǒदनांक/Dated: 08/10/2021 SK, PS Ĥितिलǒप अĒेǒषतCopy of the Order forwarded to : 1. अपीलाथȸ/The Appellant , 2. Ĥितवादȣ/ The Respondent. 3. आयकर आयुƠ(अ)/ The CIT(A)- 4. आयकर आयुƠ CIT 5. ǒवभागीय Ĥितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाड[ फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai