SHRI HEERACHAND SALECHA, MUMBAI V. THE DY CIT CEN CIR-XXXIC,

ITSSA 26/MUM/2008

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8267 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 25-07-2012
• Assessment Year: misc
• Appeal Filed On: 27-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GOLI SRINIWAS RAO
• Keywords: Block assessment; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER IT(SS)A NO. 26/MUM/2008 BLOCK PERIOD 01-04-1987 TO 11-11-1997 IT(SS)A NO. 27/MUM/2008 BLOCK PERIOD 01-04-1987 TO 11-11-1997 SHRI HEERACHAND SALECHA 603, WING NO.2, SHRI VISHAL COMPLEX NURSING LANE, S.V. ROAD, MALAD (W), MUMBAI 400 064 PAN: ASDPS 4479 E VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE XXXIV, MUMBAI. (APPELLANT ) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI GOLI SRINIWAS RAO DATE OF HEARING : 25-07-2012 DATE OF PRONOUNCEMENT : 25-07-2012 ORDER PER RAJENDRA, A.M. FOLLOWING IDENTICAL 12 GROUNDS OF APPEAL WERE FILED BY THE ASSESSEE AGAINST ORDER DTD. 05.03.2001 OF THE CIT(A)-CENTRAL-VI, MUMBAI FO R BOTH THE APPEALS (IT(SS)A/ 26/M/08 AND (IT(SS)A/ 27/M/08): 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD. CIT(A) ERRED IN HOLDING THAT THE REASONS/EXPLANATION GIVEN BY THE A PPELLANT FOR CONDONATION OF DELAY IN FILING APPEAL BEFORE LD. CIT(A) DO NOT PROVE THA T THE APPELLANT HAD EXERCISED DUE CARE AND CAUTION DILIGENTLY TO SEE THAT THE APPEAL SHOULD BE FILED IN TIME. IT(SS)A NO. 26/MUM/2008 IT(SS)A NO. 27/MUM/2008 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN HOLDING THAT THE APPELLANT DOES NOT HAVE GOOD AND S UFFICIENT CAUSE FOR THE DELAY IN FILING APPEAL. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN NOT HOLDING THAT THE APPELLANT, CIRCUMSTANCED AS HE WAS , GOT INCAPACITATED / OBSTACLED TO HAVE HIS APPEAL AGAINST THE BLOCK ASSESSMENT ORDER PREPARED AND FILED IN TIME BEFORE ID CIT(A). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN NOT HOLDING THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT FILING APPEAL IN TIME WHEN ALL THE BANK ACCOUNTS OPERATED/HELD BY APPELLANT HAD BE EN SEIZED BY THE INCOME TAX DEPARTMENT, AND WHICH STILL ARE UNDER SEIZURE TILL DATE, AND THE APPELLANT, DUE TO EXTREME FINANCIAL STRINGENCY AND HIS TARNISHED IMAG E, WAS NOT ABLE TO HIRE THE SERVICES OF A QUALIFIED TAX CONSULTANT/ADVOCATE FOR PREPARING AND FILING THE APPEAL AND ULTIMATELY THE ASSESSEE HIMSELF PERSONALLY HAD TO PREPARE AND FILE THE APPEAL BEFORE LD. CIT(A). 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW ID CIT(A) ERRED IN NOT CONDONING THE DELAY AND IN HOLDING THE ASSESSEES A PPEAL AS NOT MAINTAINABLE U/S 249(3) OF HONBLE I.T.A.T AND IN DISMISSING THE SAI D APPEAL. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN NOT ADMITTING THE APPELLANTS APPEAL AND NOT DECIDING T HE GROUNDS OF APPEAL RAISED BY ASSESSEE BEFORE HIM ON MERITS. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW ID CIT(A) ERRED IN NOT CANCELING / QUASHING THE ORDER DATED 25.07.2000 LEV YING PENALTY U/S 271(1 )(C) OF THE ACT BY HOLDING THE IMPUGNED BLOCK ASSESSMENT ORDER AS BAD IN LAW AND FACTS, ILLEGAL AND VOID FOR THE REASON THAT THE VERY INCOME, DETER MINED AND ASSESSED BY ASSESSING OFFICER IN THE HANDS OF PRESENT APPELLANT, AS ALLEG EDLY HAVING GENERATED BY TURNOVER RESULTING FROM SEVENTY SEVEN BANK ACCOUNTS OF DIFFE RENT COMPANIES, AS HELD BY ASSESSING OFFICER, STANDS ALREADY ASSESSED/TAXED IN THE HANDS OF THE SAID COMPANIES INVOLVED IN THE SAID SEVENTY SEVEN BANK ACCOUNTS AN D SO THE SAME AMOUNTS TO DOUBLE TAXATION AND DOUBLE ASSESSMENT. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN NOT CANCELING / QUASHING THE PENALTY ORDER DATED 25.07. 2000 HOLDING THE PENALTY TO BE NOT LEVIABLE FOR THE REASON OF ASSESSMENT ITSELF BEING HAD IN LAW AND FACTS, ILLEGAL AND VOID. IN THE ALTERNATIVE 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW LD CIT(A) ERRED IN NOT CONSIDERING, IN THE MATTER OF QUANTUM OF PENALTY TO BE LEVIED, THE APPELLANTS OBJECTION THAT ONLY FIFTY OUT OF SEVENTY SEVEN BANK ACCOUNTS, BEING SERIAL NO. 7, 16, 23, 29, 50, 53, 54, 56 TO 61, 63 TO 74, 76 AND 77, AS M ENTIONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, BELONG TO APPELLANT AND THE R EMAINING TWENTY SEVEN DO NOT BELONG TO THE APPELLANT AND SO THESE REMAINING TWEN TY SEVEN ACCOUNTS OUGHT NOT TO HAVE BEEN TAKEN INTO CONSIDERATION WHILE COMPUTING ASSESSEES TOTAL INCOME, AND SO ALSO IN THE RESULTANT CONCEALMENT AND IN DETERMININ G QUANTUM OF PENALTY ACCORDINGLY. 10. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW LD CIT(A) ERRED IN NOT CONSIDERING AND NOT EXCLUDING, IN THE MATTER OF QUANTUM OF PENALTY TO BE LEVIED, THE COMMISSION AMOUNT RECEIVABLE BUT NOT RECEIVED F ROM THE PARTIES, WHICH THE IT(SS)A NO. 26/MUM/2008 IT(SS)A NO. 27/MUM/2008 3 ASSESSING OFFICER TOOK INTO ACCOUNT WHILE COMPUTING ASSESSEES TOTAL INCOME ALLEGEDLY DERIVED FROM THE SEVENTY SEVEN ACCOUNTS, AND SO ALSO IN THE RESULTANT CONCEALMENT AND IN DETERMINING QUANTUM OF PENALTY A CCORDINGLY. 11. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW ID CIT(A) ERRED IN NOT REDUCING THE ADDITION / QUANTUM OF COMMISSION I NCOME FROM ONE PERCENT TO ZERO POINT ONE PERCENT AND SO ALSO IN NOT REDUCING THE R ESULTANT CONCEALMENT AND THE QUANTUM OF CONSEQUENT LEVIABLE PENALTY. 12. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW ID CIT(A) ERRED IN NOT CONSIDERING AND NOT SETTING OFF THE ALLOWABLE E XPENSES / OUTGOINGS AGAINST COMMISSION RECEIPTS WHILE DETERMINING TOTAL INCOME AND SO ALSO IN NOT REDUCING THE RESULTANT CONCEALMENT AND THE QUANTUM OF CONSEQUENT LEVIABLE PENALTY. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER A NY OR ALL THE GROUNDS OF APPEAL. 2. FROM THE RECORDS IT TRANSPIRES THAT APPEALS FI LED BY THE ASSESSEE WERE FIXED FOR HEARING FROM TIME TO TIME. THE ASSESSEE HAS REQUES TED FOR ADJOURNMENTS ON 25.06.2009, 22.03.2010, 25.05.2010, 21.09.2010, 13. 06.2011, 29.07.2011, 12.03.2012 AND ON 04.06.2012. ON LAST HEARING DATE, WHEN MAT TER WAS ADJOURNED BOTH THE PARTIES WERE INFORMED ABOUT THE NEXT DATE OF HEARING. ON 2 5-07-2012, THE MATTERS WERE CALLED FOR THREE TIMES, BUT NOBODY APPEARED, NOR AN Y APPLICATION FOR ADJOURNMENT WAS ALSO FILED BEFORE US. 3. IN VIEW OF ABOVE, IT APPEARS THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING THIS APPEAL. HENCE, THIS APPEAL OF THE ASSESSEE IS LIABL E TO BE DISMISSED FOR NON- PROSECUTION. IN THIS REGARD, WE ARE SUPPORTED BY THE DECISION IN THE CASE OF CIT VS. B.N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 460 (RELEVANT PAGES 477 & 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE AP PEAL BUT EFFECTIVELY PURSUING IT. 4. IN THIS REGARD WE ARE ALSO SUPPORTED BY THE DECISIO N IN THE CASE OF CIT VS MULTIPLAN INDIA (P) LTD., 38 ITD 320 (DEL). 5. IN VIEW OF THE ABOVE, AND ALSO CONSIDERING THE PROV ISION OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963, APPEAL OF THE ASSES SEE IS DISMISSED. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE DIS MISSED FOR NON- PROSECUTION. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2012 SD/- SD/- (B.R. MITTAL) (RAJENDRA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATE 25 TH JULY, 2012 IT(SS)A NO. 26/MUM/2008 IT(SS)A NO. 27/MUM/2008 4 TNMM COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR H BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI