P. Mohan Verma, Hyderabad V. ACIT, Central Circle -5, Hyderabad

ITSSA 20/HYD/2011

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7966 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-11-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 25-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V RAO; V SRINIVAS
• Assessee Lawyers: S RAMA RAO
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI CHANDRA POOJARI, AM AND SMT. ASHA VIJAYARAGHAVAN, JM IT(SS)A NO.20 & 21/HYD/2011 BLOCK PERIOD OF ASSESSMENT YEARS: 1997-98 TO 2000-2 003 AND FROM 1.4.2000 TO 2.7.2000 SH RI P. MOHAN VERMA, HYDERABAD (PAN AHQPP8263M) VS THE ACIT, CENTRAL CIRCLE - 5 HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S. RAMA RAO RESPONDENT BY: SHRI V. SRINIVAS & B.V. RAO DATE OF HEARING : 14.11.2011 DATE OF PRONOUNCEMENT :22.11.2011 O R D E R PER ASHA VIJAYARAGHAVAN, JM: THESE TWO APPEALS (ONE PENALTY APPEAL AND ONE QUA NTUM APPEAL) PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE CIT(A) II HYDERABAD BOTH DATED 10.5.2011 AND THEY PERTAIN TO THE BLOCK PERIOD COMPRISING OF ASSESSMENT YEARS 1997-98 TO 20 02-03 & 1.4.2002 TO 2.7.2002. 2. THE ASSESSEE IS WORKING AS A LECTURER WITH SRI CHAITANYA EDUCATIONAL INSTITUTIONS, HYDERABAD WHERE A SEARCH WAS CONDUCTE D ON 2.7.2002 ON THE EDUCATIONAL INSTITUTION. DURING THE SEARCH SEVERAL INCRIMINATING MATERIALS WERE FOUND AND SEIZED, WHICH CONTAINED DETAILS OF S ALARIES PAID TO THE LECTURERS FOR THE PERIOD DECEMBER, 2000 TO MARCH 20 02. IT WAS NOTICED THAT UPTO AUGUST 2001, SALARY WAS PAID IN CASH ONLY AND SEPTEMBER 2001, ONWARDS, SALARIES WERE PAID PARTLY IN CASH AND PART LY BY CHEQUE. BASED ON THE SEIZED MATERIAL, THE ASSESSEE WAS FOUND TO BE O NE OF SUCH RECIPIENTS OF UNACCOUNTED PAYMENTS. PROCEEDINGS U/S 158BD WERE I NITIATED AND NOTICE ITA NO.20 & 21 OF 2011 SHRI P. MOHAN VERMA, HYDERABAD U/S 158BC WAS ISSUED TO THE ASSESSEE ON 18.12.2002. THE CASE WAS CONVERTED INTO SCRUTINY AND THE ASSESSING OFFICER C OMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 158BD AND 158BC OF THE ACT DETERM INING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AS RS.7,03,400/- . AGG RIEVED BY THIS ORDER OF THE ASSESSING OFFICER THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE ORDER U/S 143(3) R.W.S. 158BD R.W.S. 158BC OF THE A CT WAS PASSED ON 31.12.2004 WHEREAS THE APPEAL WAS FILED ON 11.3.200 8 I.E., THERE HAS BEEN A DELAY OF 39 MONTHS IN FILING THE APPEAL. 3. THE CIT(A) OBSERVED THAT IN THE COVERING LETTER OF FILING THE APPEAL, THE ASSESSEE STATED THAT THE ORIGINAL ORDER OF THE ASSE SSMENT WAS MISPLACED AND COULD NOT BE RETRIEVED AND THEREFORE HE HAD TO OBTA IN A COPY OF THE ORDER FROM THE ORDER OF THE DEPARTMENT. FURTHER, THE CIT (A) OBSERVED THAT IN THE STATEMENT OF FACTS, THE ASSESSEE STATED THAT WHEN H E RECEIVED A NOTICE REQUIRING HIM TO PAY THE TAXES, HE APPROACHED THE A SSESSING OFFICER AND REQUESTED FOR COPIES OF THE SAID ORDERS. HE ALSO S TATED THAT HE CAME TO KNOW THAT THE SAID ORDER WAS SERVED ON HIS WIFE WHO DID NOT HAND OVER THE ORDER TO THE ASSESSEE HEREIN. THE ASSESSEE HAS NOT FILED ANY PETITION IN THE FORM OF AFFIDAVIT FOR CONDONATION OF DELAY AND IN FORM NO.3 5 IN COLUMN I.E. THE DATE OF SERVICE OF THE RELEVANT NOTICE OF DEMAND, THE AS SESSEE SIMPLY STATED THE DATE OF SERVICE AS 28.2.2008. FURTHER, THE CIT(A) AFTER CONSIDERING THE DECISION IN THE FOLLOWING CASES : 1. MST KATIJI AND OTHERS (167 ITR 471) 2. RAM MOHAN KABRA (257 ITR 773) 3. VEDABAI ALIAS VAIJAYANTABAI BABURAO PATIL (253 ITR 798) HELD THAT THERE WAS NO GENUINE REASON FOR FILING TH E APPEAL BELATEDLY AND THE ASSESSEE HAS NOT FILED ANY PETITION IN THE FORM OF AFFIDAVIT FOR CONDONATION OF DELAY. THEREFORE, THE DELAY CANNOT BE CONDONED. 4. ALSO PENALTY PROCEEDINGS U/S 158BFA(2) WAS INIT IATED. THE ASSESSEE CAME UP AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) OBSERVED AS FOLLOWS: ITA NO.20 & 21 OF 2011 SHRI P. MOHAN VERMA, HYDERABAD DURING THE APPELLATE PROCEEDINGS, IT WAS NOTICED T HAT THE PENALTY ORDER U/S 158BFA(2) OF THE ACT WAS PASSED ON 29.6.2005 WH EREAS THE APPEAL HAS BEEN FILED ON 11.3.2008 I.E. THERE IS A DELAY O F AROUND THIRTY THREE MONTHS IN FILING THE APPEAL. IN THE COVERING LETTE R OF FILING THE APPEAL, THE ASSESSEE STATED THAT THE ORIGINAL ORDER OF THE ASSESSMENT WAS MISPLACED AND COULD NOT BE RETRIEVED, THEREFORE I O BTAINED A COPY OF THE ORDER OF THE DEPARTMENT. IN THE STATEMENT OF FACTS , THE ASSESSEE STATED THAT THE SAID ORDER WAS NOT SERVED ON HIM AND WHEN HE RECEIVED A NOTICE REQUIRING HIM TO PAY THE TAXES, HE APPROACHE D THE ASSESSING OFFICER AND REQUESTED FOR COPIES OF THE SAID ORDERS . HE ALSO STATED THAT HE CAME TO KNOW THAT THE SAID ORDER WAS SERVED ON H IS WIFE WHO DID NOT HAND OVER THE ORDERS TO THE ASSESSEE HEREIN. T HE ASSESSEE HAS NOT FILED ANY PETITION IN THE FORM OF AFFIDAVIT FOR CON DONATION OF DELAY AND IN FORM NO.5 IN COLUMN I.E. THE DATE OF SERVICE OF THE RELEVANT NOTICE OF DEMAND, THE ASSESSEE SIMPLY STATED THE DATE OF SERV ICE AS 28.2.2008. 5. THE CIT(A) CONSIDERING THE RATIO OF THE DECISIO NS STATED ON THE FOLLOWING CASES: 1. MST KATIJI AND OTHERS (167 ITR 471) 2. RAM MOHAN KABRA (257 ITR 773) 3. VEDABAI ALIAS VAIJAYANTABAI BABURAO PATIL (253 ITR 798) HELD THAT THE DELAY IN FILING OF THE PENALTY APPEAL CANNOT BE CONDONED. AGGRIEVED, THE ASSESSEE IS IN APPEAL BOTH AGAINST T HE QUANTUM AND PENALTY ORDERS PASSED BY THE CIT(A) FOR THE BLOCK PERIOD CO MPRISING OF ASSESSMENT YEARS 1997-98 TO 2002-03 AND FROM 1.4.2002 TO 2.7.2 002. 6. THE LEARNED COUNSEL FOR THE ASSESSEE PLEADED TH AT SUFFICIENT REASON HAS BEEN THERE FOR NOT FILING THE APPEAL IN TIME. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE CIT(A). ITA NO.20 & 21 OF 2011 SHRI P. MOHAN VERMA, HYDERABAD 6. WE HEARD BOTH THE PARTIES. IT IS A FACT THAT T HE ASSESSEE HAS NOT FILED ANY AFFIDAVIT FOR CONDONATION OF DELAY EITHER BEFOR E THE CIT(A) OR BEFORE US. THE DELAY AROUND 39 MONTHS IN FILING THE QUANTUM AP PEAL AND 33 MONTHS IN FILING THE APPEAL AGAINST PENALTY LEVIED CANNOT BE DISREGARDED ON EQUITABLE GROUNDS. THE DELAY IN FILING THE APPEAL HAS NOT BE EN SUBSTANTIATED WITH SUFFICIENT REASONS AND HENCE THE DELAY CANNOT BE CO NDONED. WE RELY ON THE FOLLOWING CASE LAW FOR THE DECISION PRONOUNCED BY U S: 1. TRACTORS & FARM EQUIPMENTS LTD. (104 ITR 149) (3 RD MEMBER) 2. TRIBUNAL ORDER OF ITAT (HYD.) IN ITA NO.110/HYD/ 2008 IN AP HOUSING BOARD, HYDERABAD DATED 14.5.2010 WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE ASSESSEES APPEALS. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESS EE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 22.11.2011 SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 22 ND NOV., 2011 COPY FORWARDED TO: 1. SHRI P MOHAN VERMA, 105 SUBBARAJU TOWERS, KOTHAPET, SAROOR NAGAR, HYDERABAD. C/O SHRI S. RAMA RAO, ADVOCATE, 3-6-643, SHRIYAS E LEGANCE FLAT NO.102, ST. NO.9, HIMAYAT NAGAR, HYDERABAD-29. 2. THE ACIT, CENTRAL CIRCLE 5, HYDERABAD 3. CIT(A)- II, HYDERABAD. 4. CIT, HYDERABAD 5. THE D.R., ITAT, HYDERABAD. NP