SHRI. PRAVIN S. RAVASA, MUMBAI v. I.T.O.-15(3)(1), MUMBAI

ITA 6453/MUM/2008 | 2005-2006
Pronouncement Date: 14-09-2011 | Result: Dismissed

Appeal Details

RSA Number 645319914 RSA 2008
Assessee PAN AAHPR6477K
Bench Mumbai
Appeal Number ITA 6453/MUM/2008
Duration Of Justice 2 year(s) 10 month(s) 7 day(s)
Appellant SHRI. PRAVIN S. RAVASA, MUMBAI
Respondent I.T.O.-15(3)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Date Of Final Hearing 06-09-2011
Next Hearing Date 06-09-2011
Assessment Year 2005-2006
Appeal Filed On 06-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : MUMBAI BEFORE SHRI D.MANMOHAN VICE PRESIDENT AND SHRI T.R.SOOD ACCOUNTANT MEMBER ITA. NO. 6453/MUM/2008 ASSESSMENT YEAR 2005-2006 SHRI PRAVIN S. RAVASA MUMBAI 400 080 PAN AAHPR6477K VS. ITO 15(3)(1) MUMBAI. (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI PRAVIN S. RAVASA FOR RESPONDENT : SHRI ALEXANDER CHANDY SR. D.R. DATE OF HEARING : 06-09-2011 DATE OF PRONOUNCEMENT : 14-09-2011 ORDER PER D. MANMOHAN V.P. 1. THIS APPEAL IS FILED BY THE ASSESSEE AND IT PER TAINS TO THE ASSESSMENT YEAR 20052006. 2. AT THE OUT SET IT MAY BE NOTICED THAT THE REGI STRY HAS POINTED OUT THAT THERE IS A DELAY OF 150 DAYS IN FI LING THE APPEAL. ORDER PASSED BY THE CIT(A) WAS COMMUNICATED TO THE ASSESS EE ON 10-4-2008 WHEREAS APPEAL WAS FILED ON 6-11-2008. ASSESSEE FIL ED AN AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY. AS COULD BE N OTICED FROM THE AFFIDAVIT ORDER WAS PASSED BY THE CIT(A) ON 27-3-20 08 AND IT WAS RECEIVED ON 10-4-2008. LAST DATE FOR FILING THE APP EAL BEFORE THE APPELLATE TRIBUNAL IS 9-6-2008. SHRI PANKAJ SANGHAV I TAX CONSULTANT OF THE ASSESSEE HAS ADVISED THE ASSESSEE TO PREFER AN APPEAL. BUT DUE TO UNEMPLOYMENT AND FOR LACK OF FUNDS ASSESSEE HAD GREAT MENTAL PRESSURE AND SUFFERED PERIODIC MENTAL DEPRESSION AN D ONLY UPON NOTICING THAT ASSESSING OFFICER LEVIED PENALTY FOR THE SAME DEFAULT THE ASSESSEE BORROWED A SUM OF RS.10 000/- FROM HIS MAR RIED DAUGHTER AND PREFERRED AN APPEAL. IT WAS THEREFORE SUBMITTED THAT THE ASSESSEE HAS BONAFIDE REASONS. ASSESSEE APPEARED AS PARTY-IN -PERSON AND 2 EXPLAINED THE REASONS MENTIONED IN THE AFFIDAVIT AN D ALSO STATED HIS REASONS AS TO WHY ADDITION SHOULD NOT BE MADE. 3. ON THE OTHER HAND LEARNED DR STRONGLY OBJECTED FOR THE ADMISSION OF THE APPEAL. HE HAS SUBMITTED THAT ASSE SSEE WAS EARNING COMMISSION INCOME AND THE INTEREST INCOME IN THE YE AR UNDER CONSIDERATION AND THUS IT CANNOT BE SAID THAT HE WA S SOLELY DEPENDING FROM THE EMPLOYMENT. AT ANY RATE THERE WAS SUBSTAN TIAL DELAY WHICH WAS NOT PROPERLY EXPLAINED. HE HAS ALSO ADVERTED OU R ATTENTION TO THE FACTS OF THE CASE TO HIGHLIGHT THAT THE ORDER PASSE D BY THE LEARNED CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE RECORD. IN OUR CONSIDERED OPINION THE APPEAL DESERVES TO BE DISMISSED AS UN-ADMITTED BEING BARRED BY LIMITA TION FOR THE REASONS SET-OUT HEREIN BELOW. 4.1. ASSESSEE STATED AT PARA 5 OF THE AFFIDAVIT TH AT DUE TO UNEMPLOYMENT HE WAS UNDER GREAT MENTAL PRESSURE AND SUFFERED PERIODIC DEPRESSION AND IN SUPPORT THEREOF FILED A CERTIFICATE ISSUED BY THE DOCTOR WHEREIN IT IS STATED THAT MR. PRAVIN S. RAVASA WAS SUFFERING FROM HYPERTENSION SINCE 2000. WE ARE CONCERNED HERE IN WITH THE FINANCIAL YEAR 2004-2005 AND THE APPEAL BEFORE THE TRIBUNAL WAS TO BE FILED ON OR BEFORE 9 TH JUNE 2008. IT COULD THUS BE SEEN THAT THE AILMENT IF ANY IS A ROUTINE AILMENT WHICH SUBSIST ED SINCE 2000 AND IF IT HAD NOT COME IN THE WAY OF EMPLOYMENT AND EARNIN G COMMISSION THE SAME WOULD NOT HAVE BEEN THE SOLE REASON FOR NO T FILING AN APPEAL. IT WAS FURTHER CLAIMED THAT DUE TO BAD FINANCIAL PO SITION APPEAL COULD NOT BE FILED INTIME AND WHEN THE ASSESSEE RECEIVED PENALTY ORDER ON 5/9/2008 IT COMPELLED HIM TO PREFER AN APPEAL BY T AKING A LOAN FROM HIS MARRIED DAUGHTER FOR PAYMENT OF INSTITUTION FE ES. HERE ALSO THE CIRCUMSTANCES DO NOT SUPPORT THE STAND OF THE ASSES SEE. LOAN IF ANY WAS TAKEN ON OR BEFORE 21 ST OCTOBER 2008 SINCE PAYMENT WAS MADE IN THE STATE BANK OF INDIA ON 21 ST OCTOBER 2008. THERE WAS A FURTHER 3 DELAY OF 15 DAYS FOR FILING AN APPEAL WHICH WAS NOT PROPERLY EXPLAINED. UNDER THE CIRCUMSTANCES WE ARE OF THE OPINION THAT THE APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION AND THEREFO RE DESERVES TO BE DISMISSED AS UN-ADMITTED. 5. SINCE BOTH THE PARTIES HAVE ALSO ADVERTED OUR A TTENTION TO THE FACTS OF THE CASE FOR THE SAKE OF COMPLETENESS WE BRIEFLY REFER TO THE FACTS. ASSESSEE FILED HIS RETURN OF INCOME ON 2 6-3-2006 DECLARING NIL INCOME. THE RETURN WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT. IN THE SAID RETURN ASSESSEE APPEARS TO HAVE N OT DECLARED ANY INCOME UNDER THE HEAD SALARIES. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF EXAMINATION THE ASSESSING OFFICER POINTED OUT THAT ASSESSEE HAS RECEIVED INTEREST FRO M PARTIES ON LOANS ADVANCED AND THE ASSESSEES BANK ACCOUNT CONTAINS A DEPOSIT OF RS.15 LAKHS ON 28-3-2005 AND THE SOURCE WHEREOF WAS NOT E XPLAINED. IN RESPONSE TO THE SHOW CAUSE NOTICE THE ASSESSEE FILE D PHOTO COPY OF SAVINGS BANK PASS BOOK OF CENTRAL BANK OF INDIA AND MANDAVI COOP. BANK LIMITED BUT DID NOT FILE ANY DETAILS/EXPLANATI ON IN SUPPORT OF CASH DEPOSIT OF RS. 15 LAKHS. ASSESSING OFFICER TH EREUPON CONFRONTED THE ASSESSEE WITH THE PROVISIONS OF SECTION 68 OF T HE ACT WHEREBY SUCH DEPOSITS CAN BE ADDED AS UNEXPLAINED INCOME. ASSESS EE APPEARED ON 7-12-2007 AND SUBMITTED DETAILS OF CHEQUES ISSUED B Y HIM IN FAVOUR OF SHRI HARESH D. JIKADRA AND STATED THAT RS. 15 LA KHS WAS GIVEN AS INTEREST BEARING LOAN TO HIM AND HE HAS ALSO RECEIV ED A SUM OF RS. 2 LAHS BY CHEQUE ON 12-4-2006. HOWEVER THE ASSESSEE DID NOT FURNISH ANY DOCUMENT IN SUPPORT OF SOURCE OF THE CASH DEPOS ITED. SUBSEQUENT TO THE DATE OF HEARING ASSESSEE FILED A LETTER DATE D 17-12-2007 IN DESPATCH SECTION WHEREIN IT WAS STATED THAT HE WAS IN EMPLOYMENT OF M/S. MISTRY CONSTRUCTION CO. PVT. LTD. AND IN MARCH 2005 HIS EMPLOYER ASKED HIM TO DO HIM A FAVOUR BY ISSUING A CHEQUE TO ANOTHER PERSON THROUGH HIS BANK ACCOUNT. THE EMPLOYER STATE D THAT HE WAS NOT HAVING SUFFICIENT WHITE/OFFICIAL FUNDS AND PROM ISED THE ASSESSEE A CASH REWARD OF RS.5000/- IF CASH TAKEN FROM EMPLOYE R IS DEPOSITED IN 4 HIS BANK ACCOUNT SO AS TO ISSUE A CHEQUE IN FAVOUR OF THE PERSON TO WHOM THE EMPLOYER WANTS TO GIVE THE LOAN. IT WAS AL SO SUBMITTED THAT HE WAS UNDER PRESSURE AND TO RETAIN HIS LIVELIHOOD HE AGREED TO OBEY THE EMPLOYER AND THEREFORE CASH WAS DEPOSITED WHIC H WAS SOURCED FROM THE EMPLOYER. IN SUBSTANCE HIS CASE WAS THAT HE WAS A VICTIM OF CIRCUMSTANCES AND FINALLY HAD TO LEAVE THE JOB. 6. ASSESSING OFFICER OBSERVED THAT THE SUBMISSION OF THE ASSESSEE DESERVES TO BE REJECTED. IN THE YEAR UNDER CONSIDERATION ASSESSEES INCOME CONSISTS OF COMMISSION AND INTERE ST INCOME ONLY WHICH CONFIRMS THAT THE ASSESSEE WAS NOT IN EMPLOYM ENT WITH THE SAID COMPANY AND SINCE MAJOR SOURCE OF ASSESSEES INCOME WAS BY WAY OF INTEREST ON LOANS AND ADVANCES THE ENTIRE EXPLANAT ION IS FALSE. HE THEREFORE BROUGHT TO TAX A SUM OF RS. 15 LAKHS UND ER SECTION 68 OF THE ACT. 7. AGGRIEVED ASSESSEE CONTENDED BEFORE THE CIT(A) THAT THE EXPLANATION TENDERED BY HIM WAS NOT PROPERLY APPREC IATED BY THE ASSESSING OFFICER. LEARNED CIT(A) OBSERVED THAT THE AMOUNT WAS DEPOSITED IN ASSESSEES BANK ACCOUNT AND LOAN WAS G IVEN BY THE ASSESSEE ON WHICH HE HAS RECEIVED A SUM OF RS. 2 LA KHS BY CHEQUE FROM SHRI H.D. JIKARDE WHICH PROVES THAT HE HAS ALS O EARNED INTEREST ON THE LOANS ADVANCED AND HENCE WITHOUT SUFFICIENT EXPLANATION WITH REGARD TO NATURE AND SOURCE OF CASH DEPOSIT THE ASS ESSING OFFICER WAS JUSTIFIED IN MAKING AN ADDITION UNDER SECTION 68 OF THE ACT. THE INITIAL ONUS TO PROVE THE DEPOSIT IS UPON THE ASSESSEE AS P ROPOUNDED BY THE HONBLE SUPREME COURT IN THE CASE OF KALEKHAN MOHAM MED HANIF 50 ITR 1 AND IN THE ABSENCE OF TENDERING A PROPER EXPL ANATION THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSIN G OFFICER. FURTHER AGGRIEVED ASSESSEE IS IN APPEAL BEFORE US. 8. THOUGH THE ASSESSEE STATED THAT HE WAS WORKING AS A MARKETING MANAGER OF M/S. MISTRY CONSTRUCTION PVT. LTD. NO EVIDENCE WHATSOEVER COULD BE FURNISHED TO SHOW THAT HE WAS I N EMPLOYMENT 5 WITH THE SAID COMPANY. IN FACT HE HAS NOT DECLARED ANY SALARY INCOME. HE FURTHER STATED THAT THE EMPLOYER HAD FOR CIBLY TAKEN TWO BLANK SIGNED CHEQUES FROM THE ASSESSEE AND FORCIBLY DEPOSITED RS. 15 LAKHS IN HIS BANK ACCOUNT. IT IS NOT DISPUTED THAT SHRI JAGADISH MOHANLAL MISTRY CMD OF M/S. MISTRY CONSTRUCTION PV T. LTD. IS KNOWN TO HIM FROM CHILDHOOD AND BELONGING TO THE SAME NAT IVE PLACE. ASSESSEE ADMITS (SEE PAGE 6 OF PAPER BOOK) THAT HE ADVANCED A SUM OF RS. 2 LAKHS IN 2002 ON WHICH HE HAS CHARGED INTERES T @ 1.5% PER MONTH. IF THIS STATEMENT IS ACCEPTED THEN IT IS DIF FICULT TO APPRECIATE AS TO HOW THE ASSESSEE WAS FORCED TO SIGN CHEQUES AND TO DEPOSIT CASH IN HIS ACCOUNT AND IT IS ALSO STRANGE TO NOTICE THE CL AIM OF THE ASSESSEE THAT A PERSON WHO HAS TAKEN LOAN FROM THE ASSESSEE HAS THREATENED TO REMOVE HIM FROM SERVICE AS A SALARIED EMPLOYEE DESP ITE THE FACT THAT HE WAS NOT EARNING ANY SALARY. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE WE ARE OF THE VIEW THAT ASSESSEE FAILED T O PROVE THE NATURE AND SOURCE OF THE DEPOSIT. THEREFORE ASSESSING OFF ICER WAS JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT. T HUS EVEN IF THE APPEAL HAS TO BE ADMITTED THE SAME DESERVES TO BE D ISMISSED ON MERITS. ORDER PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON THIS THE 14 TH DAY OF SEPTEMBER 2011. SD/- SD/- (T.R.SOOD) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI DATE 14 TH SEPTEMBER 2011. VBP/- 6 COPY TO 1. SHRI PRAVIN S. RAVASA C/O. MEERA P. RAVASA 103 GRAHPAT CO-OP. HSC LTD. 1 ST FLOOR AMBICA NAGAR ROAD OFF. J.N. ROAD MULUND ( W) MUMBAI 400 080 PAN AAHPR6477K 2. ITO-15(3)(1) MUMBAI. 3. CIT(A)-XV MUMBAI 4. CIT CITY-15 MUMBAI. 5. D.R C BENCH 6. GUARD FILE TRUE COPY BY ORDER ASST. REGISTRAR ITAT MUMBAI BENCHES MUMBAI.