RINA S. MEHTA, MUMBAI v. ACIT CC 23, MUMBAI

ITA 1180/MUM/2015 | 2008-2009
Pronouncement Date: 17-10-2016

Appeal Details

RSA Number 118019914 RSA 2015
Assessee PAN ABNPM8222C
Bench Mumbai
Appeal Number ITA 1180/MUM/2015
Duration Of Justice 1 year(s) 7 month(s) 19 day(s)
Appellant RINA S. MEHTA, MUMBAI
Respondent ACIT CC 23, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 17-10-2016
Appeal Filed By Assessee
Bench Allotted D
Tribunal Order Date 17-10-2016
Assessment Year 2008-2009
Appeal Filed On 27-02-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI SANJAY GARG (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. NO.1180 /MUM/2015 (ASSESSMENT YEAR: 2008-09) RINA S MEHTA 32 MADHULI 3 RD FLOOR DR A.B. ROAD WORLI MUMBAI-18 VS ACIT CC-23 (NOW ACIT CC 4(1) MUMBAI PAN : ABNPM8222C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI DHARMESH SHAH RESPONDENT BY DR. P DANIEL DATE OF HEARING : 17-10-2016 DATE OF PRONOUNCEMENT : 17 -10-2016 O R D E R PER ASHWANI TANEJA AM: THIS APPEAL HAS BEEN FILED AGAINST THE ORDER OF CO MMISSIONER OF INCOME-TAX (APPEALS)-52 MUMBAI [HEREINAFTER CALLED CIT(A)] DATED 31-12- 2014 PASSED AGAINST THE ASSESSMENT ORDER U/S 144 DA TED 09-12-2010 FOR A.Y. 2008-09 ON THE FOLLOWING GROUNDS: GROUNDS OF APPEAL AGAINST THE ORDER DATED 31.12.2 014 U/S. 250 OF THE ACT PASSED BY THE LD. COMMISSIONER OF IN COME-TAX (APPEALS) -52 MUMBAI. FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDICE T O EACH OTHER: 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS 2 I.T.A. NO.1180/MUM/2015 ERRED IN LAW AND IN FACTS IN DISMISSING THE APPEAL IN LIMINE. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND IN FACTS IN NOT CONDONING THE DELAY OF A BOUT 10 MONTHS IN FILING THE APPEAL BEFORE HIM. 3. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND IN FACTS IN CONFIRMING LEVY OF PENALTY O F RS.2 23 17 740/- U/S 271(1)(C) OF THE ACT. 2. DURING THE COURSE OF HEARING IT WAS SUBMITTED AT TH E OUTSET BY THE LD. COUNSEL THAT IN THIS CASE LD. CIT(A) HAS NOT A DJUDICATED THE APPEAL ON MERITS FOR THE REASON THAT APPEAL WAS FILED LATE AN D HE REFUSED TO GRANT CONDONATION OF DELAY IN ABSENCE OF PROPER EXPLANATI ON FOR THE DELAY. IT WAS FURTHER SUBMITTED THAT IN THE CASE OF ASSESSEE SIMILAR SITUATION HAD ARISEN IN EARLIER YEARS WHEREIN CIT(A) HAD REFUSED TO GRANT CONDONATION OF DELAY AND THE MATTER REACHED UPTO THE TRIBUNAL AND THE TRIBUNAL SENT THE MATTER BACK TO THE LD.CIT(A) AFTER CONDONING THE DE LAY. COPIES OF FOLLOWING ORDERS OF THE TRIBUNAL WERE PLACED BEFORE US :- 1. IN THE CASE OF THE ASSESSEE ORDER DATED 13-07-2 006 2. ORDER IN THE CASE OF REENA & SUDHIR S MEHTA DAT ED 23-09-16 3. ORDER IN THE CASE OF THE ASSESSEE DATED 29-04-2 016 OUR ATTENTION WAS ALSO DRAWN UPON THE APPLICATION F OR CONDONATION OF DELAY AND OTHER SUPPORTING EVIDENCE EXPLAINING REAS ONS FOR DELAY IN FILING OF APPEAL BEFORE THE LD. CIT(A). 3. PER CONTRA THE LD. DR OPPOSED THE CONTENTIONS OF T HE LD. COUNSEL AND RELIED UPON THE ORDER OF THE LD. CIT(A). BUT H E DID NOT MAKE ANY DISTINCTION BETWEEN THE FACTS OF EARLIER YEARS AND THE YEAR BEFORE US. 4. WE HAVE GONE THROUGH THE ORDER OF THE LD.CIT(A) AP PLICATION FOR CONDONATION OF DELAY ALONG WITH REQUISITE EVIDENCE FILED BEFORE THE LD.CIT(A) VIDE LETTER DATED 09-120-2014 AS WELL AS AFORESAID ORDERS OF THE 3 I.T.A. NO.1180/MUM/2015 TRIBUNAL PASSED IN ASSESSEES OWN CASE. IT IS NOTE D BY US THAT THIS ISSUE HAS ALREADY BEEN ADJUDICATED BY THE TRIBUNAL IN ASS ESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS. THE TRIBUNAL VIDE ORDER DATED 13-07-2006 DISPOSING THE APPEAL FOR ASSESSMENT YEARS 2004-05 2005-06 2006-07 AND 2007-08 OBSERVED AS UNDER :- 5. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AU THORITIES SUBMISSIONS MADE BY BOTH THE SIDES BEFORE US AS WEL L AS PETITION FOR CONDONATION OF DELAY AND DETAILED REASONING SUBMITT ED BY THE LD. COUNSEL ALONG WITH THE AFFIDAVIT TO EXPLAIN THE DEL AY IN FILING OF THE APPEALS BEFORE LD.CIT(A) AND ALSO LACK OF PROPER RE PRESENTATION BEFORE THE LD.CIT(A). FOR THE SAKE OF READY REFEREN CE THE REASONS EXPLAINED IN DETAIL IN WRITING BY THE ASSESSEE BEFO RE US ARE REPRODUCED HEREUNDER: REASONS FOR DELAY IN FILING APPEAL AND NON-APPEARA NCE AT THE TIME OF HEARING BEFORE LD. CIT(A): 1. I SUBMIT THAT I AM A FAMILY MEMBER OF LATE SHRI HARSHAD S. MEHTA. I AM ALSO A NOTIFIED ENTITY UNDER THE PROVISIONS OF S PECIAL COURTS (TRAIL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT 1992 W.E.F. 04.01.2007. I STATE THAT MY ASSETS WERE ATTACHED SI NCE 08.06.1992 SINCE THEY WERE JOINTLY HELD WITH OTHER MEMBERS OF MY FAMILY WHO GOT NOTIFIED ON 08.06.1992. IN VIEW OF MY NOTIFICATION UNDER THE SPECIAL COURTS ACT ALL MY ASSETS INCLUDING BANK ACCOUNTS A RE UNDER CONTROL OF THE CUSTODIAN APPOINTED FOR THIS PURPOSE WHO MANAGE S THE SAME UNDER ORDERS OF HON'BLE SPECIAL COURT. I SUBMIT THA T I HAVE NO OTHER SOURCE OF INCOME EXCEPT THE INCOME EARNED ON ATTACH ED ASSETS. 2. FOR A.Y. 2004-05 TO 2006-07 THE ASSESSMENT ORDE R WAS PASSED U/S 144 OF THE ACT ON 01.12.2008. APPEALS AGAINST THE S AID ORDER WERE PREFERRED BEFORE LD. CIT(A) ON 02.02.2009 WITH A DE LAY OF 17 DAYS. SIMILARLY FOR A.Y. 2007-08 THE ASSESSMENT ORDER W AS PASSED U/S 144 OF THE ACT ON 16.12.2009. APPEAL AGAINST THE SAID O RDER WAS FILED BEFORE LD. CIT(A) ON 18.02.2010 WITH A DELAY OF 34 DAYS. 3. THE LD. CIT(A) DISMISSED MY APPEALS IN LIMINE FO R A.Y. 2004-05 TO 2007-08 VIDE ORDER DATED 04.03.2013 ON THE FOLLOWIN G GROUNDS: A.THAT THE APPEALS WERE BELATEDLY FILED AND NO APPL ICATION FOR CONDONATION OF DELAY WAS FILED. 4 I.T.A. NO.1180/MUM/2015 B.THAT NO ONE APPEARED ON BEHALF OF THE APPLICANT A T THE TIME OF HEARING. 4. AS REGARDS THE DELAY IN FILING OF APPEALS IT IS SUBMITTED THAT THE DELAY WAS PRIMARILY FOR THE REASON THAT THE APPEAL FEES WERE NOT RELEASED BY THE CUSTODIAN AND HENCE THE APPEAL COUL D NOT BE FILED IN TIME. IT IS REITERATED THAT I AM A NOTIFIED ENTITY AND ALL MY ASSETS ALONG WITH THE BANK ACCOUNTS ARE MANAGED BY THE CUSTODIAN APPOINTED UNDER THE SPECIAL COURT ACT. THE APPLICANT HAS TO R EQUEST THE CUSTODIAN TO RELEASE FEES FOR FILING APPEAL. ACCORD INGLY I HAD ADDRESSED A LETTER TO THE CUSTODIAN ON 31.12.2008 F OR RELEASE OF APPEAL FEES. THE COPY OF THE SAID LETTER IS ENCLOSE D AT ANNEXURE W. SINCE THE APPEAL FEES WERE NOT RELEASED BY THE CUST ODIAN INSPITE OF THE VISITS AND PERSONAL FOLLOW UPS THE FILING OF A PPEAL GOT DELAYED. 5. MOREOVER DURING THE SAID PERIOD PARTICULARLY F OR A.Y. 2007-08 I WAS ALSO FACING SEVERAL OTHER DIFFICULTIES INCLUDIN G NON-AVAILABILITY OF THE TAX CONSULTANTS FOR PREPARING THE APPEALS AND F ILING THE SAME. IT IS SUBMITTED THAT DUE TO THE NOTIFICATION AND THE ATTA CHMENT OF MY ASSETS I WAS UNABLE TO MAKE THE PAYMENTS TO THE CO NSULTANTS AND COUNSEL FOR THE PURPOSE OF MAKING TAX COMPLIANCES. FURTHER NUMBER OF MATTERS BEFORE THE HON'BLE SPECI AL COURT AND HONBLE SUPREME COURT HAD TO BE ATTENDED BY ME AS A RESULT OF WHICH I COULD NOT ATTEND TO FILING OF THE IMPUGNED APPEAL B EFORE THE LD. CIT (A). 6. YOUR HONOURS WOULD OBSERVE THAT I HAD TAKEN ALL THE INITIATIVES TO ADDRESS LETTER TO THE CUSTODIAN FOR THE RELEASE OF THE APPEAL FEE FOR FILING THE APPEAL AND EVENTUALLY AS THE FEES WERE N OT RELEASED THE SAME WAS PAID BY CASH OBTAINED FROM OTHERS AND APPE AL WAS FILED BEFORE LD. CIT(A). THUS SO FAR AS THE APPEALS WERE CONCERNED I WAS VERY MUCH DILIGENT AND ANXIOUS ABOUT PURSUING THE A PPEALS. THE DELAY WAS CAUSED FOR REASONS WHICH WERE BEYOND THE CONTRO L OF THE APPLICANT AND THERE WAS NO DELIBERATE DELAY OR ANY MALA FIDE INTENTION ON THE PART OF THE APPLICANT. 7. AS REGARDS NON APPEARANCE BEFORE THE LD. CIT (A) I REITERATE THAT I DID NOT HAVE THE BENEFIT OF THE PROFESSIONAL ASSIST ANCE REGULARLY MORE PARTICULARLY DUE TO NON AVAILABILITY OF COMPLETE RE CORDS WITH ME AS WELL AS MY INABILITY TO SEEK THE PRESENCE OF MY CON SULTANTS/ COUNSEL. FURTHER DURING THE SAID YEAR NUMBERS OF PROCEEDING S WERE BEING CARRIED OUT BEFORE THE HON'BLE SPECIAL COURT AND HO N'BLE SUPREME COURT. AS A RESULT OF THE SAME I HAD TO FREQUENTLY ATTEND TO THESE 5 I.T.A. NO.1180/MUM/2015 MATTERS PARTICULARLY BECAUSE THEY WERE PERTAINING TO THE SALE OF OUR RESIDENTIAL HOUSE. FURTHER I ALSO DID NOT HAVE SUF FICIENT STAFF TO LOOK AFTER THESE PROCEEDINGS BEFORE THE LD. CIT (A). 8. THUS THE APPLICANT COULD NOT MAKE COMPLIANCES DUE TO SEVERAL REASONS WHICH ARE SUMMARISED AS UNDER: A) NO RELEASE OF APPEAL FILING FEES BY THE CUSTODIA N. B) ATTACHMENT OF ASSETS INCLUDING BANK ACCOUNTS. C) NON AVAILABILITY OF COUNSELS / ADVOCATES TO REPR ESENT D) OTHER SPECIAL COURT MATTERS PENDING BEFORE HON'B LE SPECIAL COURT AT SUCH POINT OF TIME. E) NO STAFF TO GET HELP FOR DETAILS GATHERING AND A TTENDING TO INCOME TAX PROCEEDINGS AS THEIR SERVICES WERE DISPE NSED WITH. 9. IT IS SUBMITTED THAT MY ABOVE DIFFICULTIES PREV AILING FOR A VERY LONG PERIOD HAS BEEN JUDICIALLY NOTICED AND CONSIDE RED BY THE HON'BTE TRIBUNAL IN SEVERAL MATTERS. IN THIS REGARD REFERENCE MAY BE DRAWN TO THE ORDER OF HON'BLE MUMBAI TRIBUNA L VIDE IN THE CASE OF THE ASHWIN S. MEHTA V. DCIT & ORS. [ITA NO. 7310/M/2003] DATED 31 .03.2006 WHEREIN ALL THE DIF FICULTIES MENTIONED ABOVE ARE CONSIDERED BY THE HON'BLE TRIBU NAL AND DELAY IN FILLING THE APPEALS WAS CONDONED. 10. YOUR HONOURS MAY ALSO NOTE THAT THE HON'BLE SU PREME COURT IN THE CASE OF HARSHAD SHANTILAL MEHTA V. CUSTODIAN & ORS [231 ITR 871] HAS ALSO TAKEN JUDICIAL NOTICE OF PECULIAR CONDITIONS THAT WOULD GOVERNMENT A NOTIFIED PERSON BY OBSERVING THA T 'THEN ON ACCOUNT OF HIS PROPERTY BEING ATTACHED HE MAY N OT BE IN A POSITION TO DEPOSIT THE TAX ASSESSED OR FILE APPEAL S OR FURTHER PROCEEDINGS UNDER THE RELEVANT TAX LAW WHICH HE COU LD HAVE OTHERWISE DONE. '. 11. THE APPLICANT ALSO RELIES ON THE DECISION OF H ON'BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION V. MST. KATIJI & ORS. (167 ITR 471) AND N. BALAKRISHNAN V. M. KRISHN AMOORTHY (AIR 1998 S.C. 3222) WHEREIN THE HON'BLE COURT HAS HELD THAT A LIBERAL VIEW SHALL BE TAKEN WHILE DECIDING CONDONAT ION OF DELAY. 12. FURTHER IN VARIOUS CASES OF THE FAMILY MEMBERS AND OTHER CONCERNS THE HON'BLE TRIBUNAL HAS TAKEN A CONSISTE NT VIEW THAT DELAY SHALL BE CONDONED IN CASE OF NOTIFIED ENTITIE S. DETAILS OF SOME OF THE ORDERS IS MENTIONED AS UNDER: 6 I.T.A. NO.1180/MUM/2015 NAME OF THE CASE DELAY CONDONED (NO OF DAYS) RASITA MEHTA V. DOT [ ITA NO. 36831M/2011] 11 DAY S DATED 28.11.2014 2 RINA MEHTA V. DOT ET ORS [ITA NO. 3047/M/2006] DATED UPTO 11.12.2007 [31 CASES 1145 DAYS ASHWIN S. MEHTA V. DOT [ITA NO. 7310/MUM/2003] UPT O DATED 31.03.2006] [39_CASES] 827DAYS GROWMORE RESEARCH ASSETS MGT LTD. V. ACIT UPTO [3576/MUM/2007] DATED 17.12.07 [16 CASES] 57 3 DAYS 13. IN VIEW OF THE AFORESAID FACTUAL AND LEGAL POSI TION IT IS HUMBLY PRAYED THAT THE DELAY OCCURRED IN FITTING OF THE APPEAL BEFORE LD. CIT(A) AND SUBSEQUENT NON ATTENDANCE WAS DUE TO REASONS BEYOND THE CONTROL OF THE APPLICANT. 6. IT IS FURTHER NOTED THAT THE AFORESAID REASONS H AVE BEEN SUPPORTED WITH AN AFFIDAVIT OF THE ASSESSEE IN WHIC H ALL THESE FACTS HAVE BEEN DEPOSED ON OATH. NOTHING WRONG HAS BEEN POINTED OUT BY THE LD. SPECIAL COUNSEL OF REVENUE I N THE SAID AFFIDAVIT AND REASONS EXPLAINED BY THE LD. COUNSEL OF THE ASSESSEE. IT IS NOTED THAT THERE WAS DELAY OF 17 DA YS IN THE APPEALS FOR A.YS 2004-05 TO 2006-07 AND DELAY OF 34 DAYS IN THE APPEAL FOR A.Y. 2007-08. A PERUSAL OF THE REASONS E XPLAINED BY THE LD. COUNSEL SHOWS THAT THERE WAS SUFFICIENT CAU SE WHICH HAD LED TO DELAY IN FILING OF THE APPEALS BEFORE THE LD . CIT(A) AND ALSO CAUSED IMPROPER REPRESENTATION BEFORE THE LD.CIT(A) . IN OUR OPINION IN THE GIVEN FACTS AND CIRCUMSTANCES OF TH E CASE DOORS OF JUSTICE SHOULD NOT BE CLOSED TO THE ASSESSEE WITHOU T PROPER TRIAL. THE FINAL TAX LIABILITY OF AN ASSESSEE SHOULD NOT B E DETERMINED WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING. IT IS FURTHER NOTED THAT TRIBUNAL IN OTHER CASES OF THE FAMILY HAS CONDONED THE DELAY EVEN FOR LARGER NUMBER OF DAYS. FURTHER SHRI DHAVAL SHAH THE LD. COUNSEL OF THE ASSESSEE G AVE AN UNDERTAKING BEFORE THE BENCH DURING THE COURSE OF H EARING THAT IF ANOTHER OPPORTUNITY IS GIVEN THEN PROPER REPRES ENTATION SHALL BE MADE BEFORE THE LD. CIT(A). THUS TAKING INTO AC COUNT THE FACTS AND CIRCUMSTANCES OF THE CASE WE CONDONE THE DELAY OF 17 7 I.T.A. NO.1180/MUM/2015 DAYS AND 34 DAYS IN FILING OF APPEALS BEFORE LD.CIT (A) AND SEND THESE APPEALS BACK TO THE FILE OF THE LD.CIT(A). TH E ASSESSEE SHALL SUO MOTTO APPEAR BEFORE THE LD. CIT(A) ON 17-10-201 6. THE ASSESSEE SHALL ALSO SUBMIT REQUISITE WRITTEN SUBMIS SIONS AND PAPER BOOK AND SHALL NOT TAKE ADJOURNMENT WITHOUT A VALID REASON. THE ASSESSEE SHALL ALSO EXTEND NECESSARY CO OPERATION TO THE LD. CIT(A) IN EXPEDITIOUS DISPOSAL OF THESE APP EALS. LD. CIT(A) SHALL ADMIT THESE APPEALS AND DISPOSE OF THE SAME O N MERITS. THE LD. CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. 5. WE HAVE GONE THROUGH THE OBSERVATIONS OF THE TRIBUN AL AND FACTS OF THE YEAR BEFORE US. IT IS NOTED THAT THE FACTS AND CIR CUMSTANCES AND THE REASONS INVOLVED IN THE YEAR BEFORE US ARE IDENTICA L. THEREFORE RESPECTFULLY FOLLOWING THE ORDERS OF THE TRIBUNAL WE SEND THE APPEAL BEFORE US TO THE FILE OF LD. CIT(A) FOR ADJUDICATIO N ON MERITS. LD. CIT(A) AS WELL AS THE ASSESSEE SHALL FOLLOW OUR DIRECTIONS AS HAVE BEEN GIVEN IN OUR ORDERS FOR EARLIER YEARS. THE ASSESSEE SHALL SUO M OTTO APPEAR BEFORE THE LD. CIT(A) ON 28-11-2016. OTHER DIRECTIONS SHALL R EMAIN SAME. 6. AS A RESULT THIS APPEAL MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING. SD/- SD/- (SANJAY GARG) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DT : 17 TH OCTOBER 2016 PK/- COPY TO : 8 I.T.A. NO.1180/MUM/2015 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE D-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT MUMBAI BENCHES