Shri Manilal Jivram Dasudiya, Ahmedabad v. The Dy.CIT., Circle-10(1),, Ahmedabad

ITSSA 123/AHD/2007 | misc
Pronouncement Date: 31-03-2011 | Result: Dismissed

Appeal Details

RSA Number 12320516 RSA 2007
Bench Ahmedabad
Appeal Number ITSSA 123/AHD/2007
Duration Of Justice 3 year(s) 8 month(s) 4 day(s)
Appellant Shri Manilal Jivram Dasudiya, Ahmedabad
Respondent The Dy.CIT., Circle-10(1),, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-03-2011
Date Of Final Hearing 24-03-2011
Next Hearing Date 24-03-2011
Assessment Year misc
Appeal Filed On 27-07-2007
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND D.C.AGRAWAL A M SHRI MANILAL JIVRAM DASUDIYA DESAI-NI-POLE SARASPUR CHAR RASTA AHMEDABAD. VS. DY. CIT CIR-10(1) AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S. N. DIVETIA AR RESPONDENT BY:- SHRI S. J. JHA SR.D.R. O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- 1.1 THE ORDER PASSED BY CIT(A)-XVIII AHMEDABAD ON 7.3. 2003 CONFIRMING THE ORDER PASSED BY DCIT CIR.10(1) AHM EDABAD ON 25.6.2001 U/S 158BC RWS 158BD RWS 143(3) IS WHOLLY ILLEGAL UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUST ICE. 1.2 THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THERE COULD NOT BE COMPLIANCE TO THE NOTICES OF HEARING FOR GOOD AND S UFFICIENT REASONS. SINCE THE APPELLANT WAS STAYING OUTSIDE AH MEDABAD AND THE SERVICE OF NOTICE AS WELL AS ADJOURNMENT WERE T AKEN BY HIS TAX CONSULTANT THE APPELLANT WAS NOT AWARE ABOUT THE P ROCEEDINGS AND HE COULD NOT COMPLY TO THE SAME OR FURNISH NECESSAR Y DETAILS/PARTICULARS FOR THE PURPOSE OF APPEAL. 2.1 WITHOUT PREJUDICE TO THE ABOVE THE LD. CIT(A ) HAS ERRED IN LAW AND/OR ON FACTS IN CONFIRMING THAT THE APPELLANT HA D MADE ITSS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO31.1.1997 IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 2 UNEXPLAINED INVESTMENT OF RS.75 000/- BY WAY OF CAP ITAL CONTRIBUTIONS WITH M/S UMIYA INVESTMENT. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITION OF RS.75 0 00/- AS UNEXPLAINED INVESTMENT. 3.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/OR ON FACTS IN CONFIRMING THE ADDITIONS OF RS.4 25 000/- AS UNEXPL AINED IN PURCHASE OF LAND. 3.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITIONS OF RS.4 2 5 000/- 4.1 IN THE ALTERNATIVE THE LD. CIT(A) HAS FAI LED TO APPRECIATE THAT IN CASE OF NONE OF THE CO-OWNERS RS.4 25 000/- HAS BE EN HELD AS UNEXPLAINED INVESTMENT. 4.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN C ONFIRMING RS.9 52 261/- AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD OF THE A PPELLANT. IT IS THEREFORE PRAYED THAT THE ALLEGED UNDISCLO SED INCOME OF RS.9 52 261/- UPHELD BY CIT(A) MAY PLEASE BE DELETE D. 2. AT THE OUTSET THE LD. DR POINTED OUT THAT APPEAL IS LATE BY FOUR YEARS AND 35 DAYS AND APPARENTLY THERE IS NO CONDONATION PETITION FILED BY THE ASSESSEE. THEREFORE THE APPEAL SHOULD NOT BE ADMIT TED. 3. THE LD. AR POINTED OUT THAT ASSESSEE HAS FILED O NE AFFIDAVIT WHOSE CONTENTS ARE AS UNDER :- AFFIDAVIT I THE UNDERSIGNED MANILAL JIVRAM DASADIYA AGED AD ULT RELIGION HINDU RESIDING AT DESAIPOLE SARASPUR AHM EDABAD DO HEREBY SOLEMNLY AFFIRM AND DECLARE ON OATH. I AM RESIDING AT ABOVE MENTIONED ADDRESS. IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 3 THAT MY WIFE HAS EXPIRED IN APRIL 2003 AND AFTER HER DEATH I HAVE LOST INTEREST IN LIFE AND SOCIETY AND I MADE A PRIE ST THENAFTER I COME BACK ON 12.6.07 IN THE SOCIETY AND LIVED WITH ELDER SON KANUBHAI MANILAL THENAFTER CHANGE OF MY MIND I AGAIN ACCEPTED THE WA Y OF RELIGIOUS AND MAKE AGAIN PRIEST. SO IT MEANS WHEN I LOST INTEREST IN SOCIETY AND PUBLIC LIFE I MADE PRIEST AND WHEN I REMEMBER MY FAMILY SO I AGAIN ACCEPT THE SOCIAL LIFE AND IT IS OFTENLY MAY CONTINUE WHEN MY FAMILY SHOULD NOT SUIT ME I SHALL LEFT MY HOUSE AND MADE PRIEST. THERE IS NO MOVABLE AND IMMOVABLE PROPERTY IN MY NAME. I HAVE TWO SONS BUT I DID NOT MATCH WITH THEM & AL SO MY ELDER SON HAS SOME BAD HABITS AND MAKE AN QUARREL WITH HIM SO I LEFT MY HOUSE OFTENLY AND RETURNED OFTENLY. MY YOUNGER SON MADE A LOVE MARRIAGE AND SO I AVOID HIM. I HAVE NO PERSONAL INTEREST IN PUBL IC AND SOCIAL LIFE AND WISH TO LIVE IN TEMPLE/ASHRAM AS A PRIEST MORE AND MORE TIME. I MADE THIS AFFIDAVIT TO PRODUCE BEFORE CONCERN AU THORITY OF INCOME-TAX DEPARTMENT AHMEDABAD. WHAT STATED ABOVE ARE TRUE AND CORRECT. AHMEDABAD SD/- MANILAL JIVRAM DASADIYA DT.7.7.10. HOWEVER HE COULD NOT POINT OUT TO ANY PETITION APP LYING FOR CONDONATION OF DELAY. THE REGISTRY HAD ISSUED A DEFECT MEMO TO THE ASSESSEE VIDE ITS LETTER DATED 24.8.2007 BUT EVEN THEREAFTER TILL DAT E NO APPLICATION FOR CONDONATION OF DELAY IN ADDITION OR APART FROM AF FIDAVIT AS REFERRED TO ABOVE HAS BEEN FILED OR IS NOT BROUGHT TO OUR NOTIC E. PERUSAL OF RECORD ALSO DID NOT INDICATE THAT ASSESSEE HAS FILED ANY PETITI ON FOR CONDONATION OF DELAY OTHER THAN ABOVE AFFIDAVIT. 4. AFTER HEARING THE LD. DR & THE LD. AR WE DECLINE TO ADMIT THE APPEAL ON ACCOUNT OF DELAY IN FILING THE APPEAL LAT E WHICH IS 4 YEARS AND 35 DAYS FOR THE REASONS THAT ASSESSEE HAS FAILED TO PROVIDE ANY REASON FOR NOT FILING THE APPEAL IN TIME. THE CONTENTS OF THE AFFIDAVIT DO NOT SPEAK ANYTHING AS TO WHEN HE HAD RECEIVED THE ORDER OF LD . CIT(A) AND WHY HE IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 4 WAS NOT ABLE TO PREFER APPEAL BEFORE THE TRIBUNAL I N TIME. WHATEVER HAS BEEN STATED IN THE AFFIDAVITS ARE MERELY AVERMENTS OF PERSONAL LIFE AS TO WHY HE HAS BEEN FREQUENTLY SWITCHING OVER FROM BECO MING A PRIEST TO A PART OF HIS FAMILY AND VICE-VERSA. HE HAS AVERTED T HAT HE HAD PROBLEMS WITH HIS SONS BUT THERE IS NO STATEMENT AS TO WHY H E WAS NOT ABLE TO FILE HIS APPEAL BEFORE THE TRIBUNAL AND HOW THESE CHANGE S IN APPROACH TOWARDS LIFE AND SOCIETY WERE THE REASONS FOR NOT P REFERRING THE APPEAL. THE LD. AR FOR THE ASSESSEE HAS PLEADED FOR DECIDIN G THE APPEAL ON MERIT IN THE INTEREST OF JUSTICE BY CONDONING THE DELAY. HE HAD FURTHER SUBMITTED THAT ASSESSEE HAS BEEN A PARTNER IN M/S UMIYA INVES TMENT AND CERTAIN INCOME HAS BEEN ASSESSED ON SUBSTANTIVE BASIS IN TH E CASE OF FIRM AND PROTECTIVE BASIS IN THE CASE OF THE PARTNERS. THE C ASES OF CERTAIN PARTNERS HAVE ALREADY BEEN CONSIDERED BY THE TRIBUNAL THERE FORE THE CASE OF THE ASSESSEE SHOULD BE DECIDED AT PAR AS THE CASES OF O THER PARTNERS AND DIFFERENT DECISION ON ACCOUNT OF NON-ADMISSION OF A SSESSEES APPEAL WOULD BE CONTRARY TO THE DECISION IN OTHER CASES OF PARTNERS. 5. HOWEVER THIS PLEA OF THE LD. AR IS NOT LEGALLY ACCEPTABLE BECAUSE DISMISSAL OF APPEAL FOR NON-PROSECUTION OR FOR LATC HES CANNOT BECOME A PRECEDENCE IN OTHER CASES. THE LAW OF PRECEDENCE IS NOW CLEAR. UNLESS AN ISSUE IS DECIDED ON MERIT AFTER GIVING REASONS CANN OT BECOME PRECEDENCE TO AFFECT THE RIGHTS OF OTHER PARTIES. SO FAR AS TH E DECISION RENDERED BY THE TRIBUNAL IS CONCERNED CHANGES IN FACTS OR LEGAL AR GUMENTS WHICH CANNOT BE RAISED IN THE CASE OF SUCH AN APPEAL DISMISSED F OR LATCHES WILL NOT MAKE SUBSTANTIVE DIFFERENCE IN THE CASE OF OTHER PA RTIES WHERE PRECEDENCE IS SOUGHT TO BE RAISED. 6. IN ANY CASE DELAY IN THE PRESENT CASE CANNOT BE CONDONED BECAUSE NO REASONS HAVE BEEN ADVANCED AND NO APPLICATION FO R CONDONATION OF IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 5 DELAY HAS BEEN FILED. THIS AFFIDAVIT OF ASSESSEE CA NNOT BE TREATED AS AN APPLICATION FOR CONDONATION OF DELAY AS IT DOES NOT SPEAK SO. IN FORAMER FRANCE VS. CIT IN ITA NOS.3369 & 3370/DEL/2007 PRO NOUNCED ON OCTOBER (2008) BY ITAT C BENCH DELHI IT IS HELD T HAT RULE OF LIMITATION ALSO CONTAINS RULE OF JUSTICE. WHERE A PERSON CHOOS ES NOT TO TAKE UP REQUISITE LEGAL REMEDIES FOR AN INORDINATE LENGTH O F TIME WITOUT REASONABLE CAUSE THE TRIBUNAL IS DUTY BOUND TO APPLY THE RULE OF LIMITATION. THERE IS AN APPARENT NEGLIGENCE IN THIS CASE AND LACK OF BON A FIDE ON THE PART OF THE ASSESSEE IN NOT PREFERING AN APPEAL WHICH IS FU RTHER SUPPORTED BY THE FACT THAT THERE IS NO APPLICATION FOR CONDONATION O F DELAY AND THERE IS APPARENTLY NO REASONS ADVANCED FOR SUCH DELAY. EVEN WHERE LIBERAL CONSTRUCTION IS GIVEN TO THE RULE OF CONDONATION OF DELAY THERE ARE ALWAYS REASONS ADVANCED BY THE ASSESSEE SO AS TO ENABLE TH E COURT TO CONSIDER THEIR SUFFICIENCY OR OTHERWISE. WHERE ASSESSEE WITH OUT ANY CAUSE DOES NOT FILE AN APPEAL REVENUE HAS A JUSTIFIABLE REASON TO COME TO THE CONCLUSION THAT DECISION GIVEN BY LD. CIT(A) HAS BEEN ACCEPTED BY THE ASSESSEE. THE ADMISSION OF APPEAL AFTER SUCH INORDINATE DELAY WIT HOUT REASONABLE CAUSE WOULD FRUSTRATE THE LEGITIMATE EXPECTATION OF THE R EVENUE. TO CONDONE THE DELAY IN MECHANICAL OR ROUTINE MANNER MAY AMOUN T TO JEOPARDIZE THE LEGISLATIVE INTENT BEHIND SECTION 5 OF THE LIMITATI ON ACT. EVEN THOUGH IN RECENT TIME THIS SECTION HAS BEEN LIBERALLY INTERPR ETED BUT SUCH LIBERAL INTERPRETATION DOES NOT MEAN THAT WITHOUT A JUSTIFI CATION OR CAUSE AN ACCRUED RIGHT IN FAVOUR OF THE NON-APPLICANT CAN BE TAKEN AWAY IF DELAYS ARE CONDONED IN A CASUAL MANNER WITHOUT THE APPLICA NT TAKING TROUBLE OF SHOWING A CAUSE FOR SUCH INORDINATE DELAY. BOTH THE REVENUE AS WELL AS THE ASSESSEE ARE EXPECTED TO ACT WITH CARE AND EXPE DITIOUSNESS IN EXERCISING THEIR RIGHTS TO FILE AN APPEAL AND NOT T O LET THINGS LIE UNPROCESSED FOR MONTHS/YEARS TOGETHER. IF PRINCIPLE OF PUBLIC ACCOUNTABILITY AND TRUST TO THE ACTION OF THE GOVER NMENT OFFICER/OFFICIALS IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 6 CAN BE EXPECTED FROM REVENUE DEPARTMENT THEN SIMILA R ACCOUNTABILITY IS EXPECTED FROM THE TAX PAYING ASSESSEES AS TAX LIABI LITY ACCRUED ON THEM GOES TO PUBLIC EXCHEQUER FOR WELFARE OF PUBLIC AT L ARGE. WHERE NEGLIGENCE CASUAL ATTITUDE OF THE GOVERNMENT OFFIC ER/OFFICIAL DEALING WITH THE REVENUE APPEALS CAN CAUSE THEIR APPEAL TO BE DISMISSED ON ACCOUNT OF INORDINATE DELAY THERE IS NO REASON WHY SIMILAR YARD STICK BE APPLIED AGAINST DELAYING APPELLANTS FROM THE PUBLIC WHO HAVE NO REASON TO EXPLAIN SUCH DELAY. IN SURENDER KR. VAVEJA VS. C WT (2006) 287 ITR 52 (DEL) WHERE THERE WAS A DELAY OF ABOUT 5 YEARS IN FILING THE APPEAL BEFORE THE TRIBUNAL HON. DELHI HIGH COURT HELD THA T IN ORDER TO GET CONDONATION OF DELAY IN FILING AN APPEAL A PARTY HA S TO SHOW SUFFICIENT CAUSE. SUFFICIENT CAUSE IS A CAUSE BEYOND THE CONTR OL OF THE PARTY E.G. MISTAKE MADE IN THE GOOD FAITH IN RESPECT OF EXERCI SE OF DUE CARE AND ATTENTION BUT WHERE THERE IS WANT OF DUE CARE AND ATTENTION OR WANT OF DILIGENCE OR SUFFICIENT CAUSE THE DELAY CANNOT BE C ONDONED. IN THE PRESENT CASE EVEN IF WE CONSIDER THE RENOUNCING OF THE WORL D OR FAMILY AND BECOMING A PRIEST AND SWITCHING OVER AGAIN AND AGAI N FROM ONE FORM OF LIVING TO ANOTHER IS TREATED AS A CAUSE THEN IT CA NNOT BE SAID THAT IT WAS SOMETHING BEYOND HIS CONTROL AND HE HAD TAKEN DUE D ILIGENCE IN PURSUING HIS APPEAL. IT WAS ASSESSEES PERSONAL DECISION TO BECOME PRIEST AND IGNORE TAXATION MATTERS BUT WHEN HE CAME OVER TO TH E SOCIETY HE DID NOT HAVE ANY DUE CARE AND DILIGENCE. THUS IT WAS VERY C LEAR THAT HE HAD PRACTICALLY IGNORED THE TAXATION MATTERS. THIS IS N OTHING BUT A SHEER NEGLIGENCE AND CANNOT BE CONSIDERED AS A CAUSE WHIC H WAS BEYOND HIS CONTROL. ACCORDINGLY WE DECLINE TO CONDONE THE DEL AY AND DISMISS THE APPEAL FOR LATCHES. IT(SS)A NO.123/AHD/2007 BLOCK PERIOD 1.4.86 TO 31.1.1997 7 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 31.3.11. SD/- SD/- (BHAVNESH SAINI) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD DATED : 31.3.11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 25/3/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 28/3/ 2011 MEMBER .OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..