MIHIR H. BILAKHIA, V. ITO 25(3)(1),

MA 372/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3081 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 02-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: S R KHANNA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B.R. B A SKARAN , ACCOUNTANT MEMBER MA NO. 372/MUM/2014 (ARISING OUT OF ITA NO. 3828/MUM/2009 (ASSESSMENT YEAR: 2005 - 06 ) SHRI MIHIR H. BILAKHIA VS. INCOME TAX OFFICER - 25(3)(1) A - 502, GODS GRACE, ADARSH DUGDHALAYA COLONY, OFF MARVE RD. MALAD (W), MUMBAI 400064 BANDRA KURLA COMPLEX BANDRA (E), MUMBAI PAN - AEXPB1087P APPLICANT RESPONDENT APPLICANT BY: SHRI S.R. KHANNA RESPONDENT BY: SHRI JEETENDRA KUMAR DATE OF HEARING: 27.03.2015 DATE OF PRONOUNCEMENT: 08 .0 4 .2015 O R D E R PER D. MANMOHAN, V.P. BY THIS APPLICATION THE ASSESSEE SEEKS RECALL OF THE ORDER DATED 31.07.2014 PASSED BY ITAT F BENCH, MUMBAI ON THE GROUND THAT THE COMM ISSIONER OF INCOME TAX (APPEALS) OVERLOOKED THE CONFIRMATION PROVIDED BY THE PARTY WITH WHOM THE ASSESSEE HAD BUSINESS TRANSACTION AND FURTHER ADDING THE ENTIRE SALES PROCEED OF EQUITY SHARES AS CAPITAL GAIN WITHOUT DEDUC T ING THE COST OF EQUITY SHARES. 2. WITH REGARD TO THE REASONS FOR RESTORATION IT WAS STATED THAT THE FATHER OF THE ASSESSEE WAS SUFFERING FROM PARKINSON DISEASE AND MEMORY LOSS ON ACCOUNT OF WHICH THE ASSESSEE WAS OCCUPIED WITH THE MEDICAL TREATMENT OF HIS FATHER IN HINDUJA HOSPITAL AND THE LEARNED CHARTERED ACCOUNTANT HAD OTHER MATTERS TO BE ATTENDED TO IN OTHER BENCH OF THE TRIBUNAL ON THAT DAY AND HENCE HE COULD NOT TAKE ADJOURNMENT, WHICH RESULTED IN EXPARTE DISPOSAL OF THE APPEAL. 3. IT DESERVES TO BE NOTICED THAT WE ARE CONCERNED WITH A.Y . 2005 - 06 AND ON ACCOUNT OF NON - COOPERATION ON THE PART OF THE ASSESSEE, I.E. ON ACCOUNT OF MA NO. 372/MUM/2014 SHRI MIHIR H. BILAKHIA 2 NON - FURNISHING OF THE INFORMATION REQUIRED BY THE AO, T HE AO HAD NO OTHER ALTERNATIVE BUT TO CONCLUDE THAT THE DEPOSITS MADE IN THE BANK ACCOUNT, AMOUNTING TO ` 17,0 2,748/ - , HAS TO BE TREATED AS ASSESSEES INCOME FROM UNDISCLOSED SOURCE AND ACCORDINGLY ADDED THE SAME TO THE TOTAL INCOME DISCLOSED BY THE ASSESSEE. EVEN BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE COULD NOT PROVE ITS CASE AND IN FACT THE ASSESSEE W ENT ON CHANGING HIS STAND FROM TIME TO TIME; IT WAS STATED THAT THE ASSESSEE DOES NOT MAINTAIN BOOKS OF ACCOUNT WHEREAS THE CAPITAL GAIN IN THE BALANCE SHEET SHOWS SPECIFIC FIGURES, WHICH IS NOT POSSIBLE TO BE RECOLLECTED MERELY ON THE BASIS OF MEMORY. THE ODD FIGURES, IN PARTICULAR IN THE FINANCIAL STATEMENTS, LED THE LEARNED CIT(A) TO CONCLUDE THAT THE NEW STAND TAKEN BY THE ASSESSEE IS NOT TRUE. HE ALSO NOTICED THAT THE STANDARD & CHARTERED BANK ACCOUNT WAS IN HIS NAME AND IT IS NOT A JOINT ACCOUNT IN WH ICH EVENT THERE IS NO QUESTION OF THE BANK ACCOUNT BEING OPERATED BY HIS FATHER, WHICH WAS ADMITTED BY THE ASSESSEE HIMSELF WHILE SUBMITTING THE REVISED STATEMENT THROUGH LETTER DATED 22. 11 .2007. HE ALSO OBSERVED THAT THE ASSESSEE FAILED TO GIVE THE NAMES AND ADDRESS ES OF THE CUSTOMERS AND COPIES OF THEIR CONFIRMATIONS. HE THUS CONFIRMED THE ACTION OF THE AO. 4. THOUGH THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL ON 12.06.2009, WHEN THE CASE WAS LISTED FOR HEARING NONE APPEARED ON BEHALF OF THE ASSESSE E AND HENCE THE MATTER WAS DISPOSED OF EXPARTE, QUA ASSES SEE, ON 14.05.2010. AT THAT STAG E ASSESSEE FILED A PETITION UNDER SECTION 254(2) OF THE ACT SEEKING RECALL OF THE EXPARTE ORDER BUT EVEN AFTER RECALL THE ASSESSEE DID NOT CHOOSE TO APPEAR ON THE DATE FIXED FOR HEARING AND THUS THE APPEAL WAS AGAIN DISMISSED FOR NON - APPEARANCE ON 10.10.2011. IN A SECOND MISCELLANEOUS APPLICATION ASSESSEE AGAIN MADE A REQUEST THAT THERE WAS BOANFIDE REASON FOR NON - APPEARANCE AND REQUESTED FOR ONE MORE OPPORTUNITY AND AC CORDINGLY THE BENCH CONSIDERED THE REQUEST AND RECALLED THE EXPARTE ORDER AND POSTED THE CASE FOR FRESH HEARING. EVEN AT THAT STAGE NO ONE APPEARED ON BEHALF OF THE ASSESSEE. THUS, ON 31.07.2014 THE PETITION WAS DISPOSED OF EXPARTE, QUA THE ASSESSEE, WHERE IN THE BENCH DISCUSSED THE ISSUE ON MERITS AND NOTICED THAT THE ORDER PASSED BY THE CIT(A) IS IN ACCORDANCE WITH LAW AND THUS DISMISSED THE APPEAL FILED BY THE ASSESSEE. MA NO. 372/MUM/2014 SHRI MIHIR H. BILAKHIA 3 AGAINST THE ORDER DATED 31.07.2014 THE ASSESSEE FILED A MIS CELLANEOUS APPLICATION UNDE R SECTION 254(2) OF THE ACT, WHICH IS THE THIRD MISCELLANEOUS APPLICATION IN THE SAME APPEAL. HERE ALSO THE REASONS ARE VAGUE. EARLIER THE CASE OF THE ASSESSEE WAS THAT NOTICE WAS NOT SERVED UPON ON HIM AND HE CAME TO KNOW ABOUT THE EXPARTE DISPOSAL ONLY W HEN THE RECOVERY NOTICE WAS SERVED BY THE AO. IN THE SECOND MISCELLANEOUS APPLICATION IT WAS SUBMITTED THAT SHRI HARSHAD M. SAKHIA, CHARTERED ACCOUNTANT WAS PRE - OC CUPIED WITH ANOTHER MATTER IN OTHER BENCH AND AS A RESULT HE COULD NOT MANAGE TO APPEAR IN THIS CASE. MR. HARSHAD M. SAKHIA IS A PRACTISING CHARTERED ACCOUNTANT AND BECAUSE HE OWNS THE DEFAULT OF NON - APPEARANCE ONE MORE OPPORTUNITY WAS GIVEN BUT EVEN IN THE THIRD ROUND THE ASSESSEE COMES OUT WITH THE SAME PLEA THAT THE CHARTERED ACCOUNTANT HAD A NOTHER MATTER TO ATTEND WITH OTHER BENCH OF THE TRIBUNAL AND HENCE COULD NOT REACH IN TIME WHICH SHOWS LACK OF ANY RESPECT ON THE PART OF THE CHARTERED ACCOUNTANT IN A MATTER WHICH WAS TWICE DISMISSED AND COMING UP FOR THE THIRD TIME SPANNING OVER FOR MORE THAN SIX YEARS. UNDER THESE CIRCUMSTANCES WE ARE UNABLE TO TAKE A LENIENT VIEW ON THIS MATTER. IN FACT IN THIS ROUND OF LITIGATION THE ASSESSEE HAS NOT FURNISHED ANY PROOF TO SHOW THAT THE COUNSEL ENGAGED WAS BUSY IN OTHER COURT. EVEN IF IT IS PROVED, TH E BURDEN IS UPON THE CHARTERED ACCOUNTANT FOR NOT BEING DILIGENT IN DISCHARGE OF HIS DUTIES AND ASSESSEE COULD HAVE SUED HIM IN AN APPROPRIATE FOR U M INSTEAD OF SEEKING INDULGENCE OF THIS COURT. AT ANY RATE, NEITHER AN AFFIDAVIT WAS FILED NOR ANY MATERIAL W AS SHOWN IN SUPPORT OF HIS CONTENTION THA T NON - APPEARANCE WAS FOR GENUINE REASONS AND NOT ATTRIBUTABLE TO THE NEGLIGENCE ON THE PART OF THE ASSESSEE OR HIS CHARTERED ACCOUNTANT. UNDER THESE CIRCUMSTANCES WE DO NOT FIND ANY REASON TO RECALL THE ORDER DATED 31.07.2014 AND HENCE THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH APRIL, 2015. SD/ - SD/ - ( B.R. B A SKARAN ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 8 TH APRIL, 2015 MA NO. 372/MUM/2014 SHRI MIHIR H. BILAKHIA 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 35 , MUMBAI 4. THE CIT XXV , MUMBAI CITY 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.