VIJAYKUMAR SHIVLAL JAIN, MUMBAI V. INCOME TAX OFFICER 19(3)(5), MUMBAI

MA 614/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3521 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MIS SAMATHA MULLAMLUDI
• Keywords: Bogus purchase; Condonation of delay

Judgement Text

1 MA 614/MUM/2019 IN ITA NO. 1685/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI PAWAN SINGH (JM) & SHRI S.R. RAHMAN ( A.M.) M.A. NO.614/MUM/2019 (ARISING OUT OF ITA NO. 1850/MUM/2018 (ASSESSMENT YEAR : 2010-11) MR. VIJAYKUMAR SHIVLAL JAIN ROOM NO.101, 2 ND FLOOR BADRIKA ASHRAM BUILDING 1 ST KHETWADI LANE, MUMBAI PAN : ADXPJ8872B VS INCOME-TAX OFFICER 19(3)(5), MUMBAI APPLICANT RESPONDEDNT APPLICANT BY SHRI S.L. JAIN RESPONDENT BY MIS. SAMATHA MULLAMLUDI DATE OF HEARING 14-02-2020 DATE OF PRONOUNCEMENT 14 -02-2020 O R D E R PER PAWAN SINGH, JM : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE FOR RECALLING THE ORDER DATED 02-08-2018 FOR THE ASSESSMENT YEAR 2010 -11. 2. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HA S CONTENDED THAT THE ORDER DATED 02-08-2018 WAS RECEIVED BY THE ASSESSEE ON 04-09-2018. THE PRESENT APPLICATION IS FILED ON 05-12-2019. IN SUP PORT OF HIS CONTENTION OF DELAY IN FILING THE APPLICATION, THE ASSESSEE HAS F ILED HIS AFFIDAVIT. IN THE AFFIDAVIT, THE ASSESSEE HAS DEPOSED THAT HIS TAX CO NSULTANT, SHRI SL JAIN WAS SUFFERING FROM LEG PAIN AND WAS NOT ABLE TO WALK AN D FINALLY HE HAS UNDERGONE SURGERY AT KOKILABEN AMBANI HOSPITAL ON 0 6-08-2018. THE 2 MA 614/MUM/2019 IN ITA NO. 1685/MUM/2018 ASSESSEE FURTHER PLEADED THAT HIS AUTHORISED REPRES ENTATIVE WAS SUFFERING FROM 2017 AND WAS FINALLY OPERATED AT KOKILABEN AMBANI H OSPITAL AND WAS ADVISED SIX MONTHS REST. 3. THE LD.AR OF THE ASSESSEE MADE HIS SUBMISSION O N SIMILAR LINE THAT HE WAS SUFFERING FROM SPINAL INJURY AND WAS ADMITTED I N KOKILABEN AMBANI HOSPITAL AND WAS DISCHARGED ON 10-08-2018 ONLY. TH E LD AR FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE CAME TO KNOW ABOUT THE EX -PARTY ORDER ONLY ON THE SERVICE OF THE ORDER TO HIM. THE LD.AR OF THE ASSE SSEE SUBMITS THAT THERE IS SUFFICIENT CAUSE FOR RECALLING THE EX-PARTE ORDER A S THE ASSESSEE ENGAGED HIM TO REPRESENT BEFORE TRIBUNAL AND WAS NOT WELL AND W AS IN HOSPITALISED ON THE DAYS, WHEN THE APPEAL CAME UP HEARING BEFORE THE TR IBUNAL. 4. THE LD.AR FURTHER SUBMITS THAT IN THE GROU NDS OF APPEAL THE ASSESSEE HAS BASICALLY RAISED TWO GROUNDS OF APPEAL, OUT OF WHICH GROUND 1 RELATES TO DISALLOWANCE ON ACCOUNT OF BOGUS PURCHASES; AND GRO UND 2 RELATES TO DEDUCTION UNDER CHAPTER VIA OF THE INCOME-TAX ACT, 1961. THE LD.AR SUBMITS THAT HE WOULD NOT PRESS GROUND 2 WITH REGAR D TO DEDUCTION UNDER CHAPTER VIA. 5. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SU BMITS THAT THE TRIBUNAL PASSED THE ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE TRIBUNAL CONSIDERED ALL THE MATERIAL ON RECORD AND PASSED THE ORDER. THE 3 MA 614/MUM/2019 IN ITA NO. 1685/MUM/2018 ASSESSEE IS SEEKING REVIEW OF THE ORDER PASSED BY T HE TRIBUNAL, WHICH IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 254(2 ) OF THE INCOME-TAX ACT. THE LD. DR FURTHER SUBMITS THAT THE MISCELLANEOUS A PPLICATION IS FILED BELATEDLY. THE ASSESSEE FILED HIS OWN AFFIDAVIT WIT HOUT SUPPORTING DOCUMENTARY EVIDENCE OF THE REPRESENTATIVE, WHO WAS ALLEGEDLY NOT BEING WELL. THE LD. DR FURTHER SUBMITS THAT THE AUTHORIT Y LETTER OF SHRI SL JAIN IS NOT PLACED ON RECORD. THE AUTHORITY LETTER WAS NEI THER FILED ALONG WITH THE APPEAL PAPERS NOR SUCH AUTHORITY LETTER IS FILED IN THE PAPER BOOK OF MISCELLANEOUS APPLICATION. THE LD. DR SUBMITS THAT APPLICATION OF ASSESSEE IS TIME BARRED AND NOT LIABLE TO BE ENTERTAINED AS NO SUFFICIENT REASON TO CONDONE THE DELAY IS EXPLAINED BY ASSESSEE. EVEN O N MERITS, THE ASSESSEE IS NOT ENTITLED AS THE ASSESSEE IS SEEKING REVIEW OF T HE ORDER WHICH IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 254(2). 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. PERUSAL OF RECOR D REVEALS THAT THE APPEAL WAS ADJOURNED ON THREE OCCASIONS AT THE REQUEST OF ASSESSEE I.E ON 28.05.2018, 14.06.2018 AND ON 28.06.2018. THE APPEA L CAME UP HEARING ON 31-07-2018; FURTHER AN APPLICATION FOR ADJOURNMENT WAS MADE ON 31.07.2018. HOWEVER, NONE APPEARED ON BEHALF OF ASSESSEE ON 31. 07.2018. THEREFORE, ADJOURNMENT WAS DECLINED AND ON THE BASIS OF WRITTE N SUBMISSION ON RECORD 4 MA 614/MUM/2019 IN ITA NO. 1685/MUM/2018 AND CONSIDERING THE SUBMISSIONS OF THE LD. DR FOR T HE REVENUE, THE APPEAL WAS DECIDED. 7. NOW, THE ASSESSEE HAS FILED THE PRESENT APPL ICATION FOR RECALLING THE ORDER DATED 02-08-2018. FOR CONDONATION OF DELAY I N FILING THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS FILED AN AFFIDAVIT. IN THE AFFIDAVIT, ASSESSEE DEPOSED THAT HIS COUNSEL SHRI SL JAIN WAS SUFFERING FROM LEG PAIN AND WAS OPERATED AT KOKILABEN AMBANI HOSPITAL. THE ASSESSE E HAS ALSO FILED DISCHARGE SLIP DATED 10-08-2018. THE DISCHARGE SLI P DISCLOSES HISTORY OF LEG PAIN AND THE SUBSEQUENT OPERATION. CONSIDERING THE SUBMISSION OF LD.AR OF THE ASSESSEE AND THE AFFIDAVIT OF ASSESSEE WHICH IS COUPLED WITH THE MEDICAL DISCHARGE SLIP OF SHRI SL JAIN AFTER OPERATION, WE FIND THAT THERE IS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN FILING MISCELLANEO US APPLICATION. THEREFORE, THE DELAY IN FILING MISCELLANEOUS APPLICATION IS CO NDONED. 7. CONSIDERING THE FACT THAT DURING THE RELEVANT PE RIOD, WHEN THE APPEAL CAME UP FOR HEARING BEFORE TRIBUNAL, THE LD.AR OF T HE ASSESSEE WAS NOT WELL. THEREFORE, WE FIND SUFFICIENT REASON AS PER RULE 24 OF INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1962. THEREFORE, THE ORDER DATED 02-08-2018 IS RECALLED AND THE APPEAL IS FIXED FOR HEARING BY REGULAR BENCH. THE HEARING OF APPEAL IS FIXED FOR 07 TH APRIL, 2020. NOTICE OF HEARING BE SERVED UPON THE PARTIES. 8. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. 5 MA 614/MUM/2019 IN ITA NO. 1685/MUM/2018 ORDER PRONOUNCED IN THE OPEN COURT ON 14 -02-2020 . SD/- SD/- (S. RIFAUR RAHMAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 14 TH FEBRUARY, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI