Shri Jayantilal Nathalal Patel, Ahmedabad v. The DY.CIT., Circle-1,, Ahmedabad

ITSSA 86/AHD/2007 | misc
Pronouncement Date: 23-04-2010 | Result: Dismissed

Appeal Details

RSA Number 8620516 RSA 2007
Bench Ahmedabad
Appeal Number ITSSA 86/AHD/2007
Duration Of Justice 2 year(s) 11 month(s) 20 day(s)
Appellant Shri Jayantilal Nathalal Patel, Ahmedabad
Respondent The DY.CIT., Circle-1,, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-04-2010
Date Of Final Hearing 21-04-2010
Next Hearing Date 21-04-2010
Assessment Year misc
Appeal Filed On 03-05-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND N.S. SAINI A M) IT (SS) A NO.86/AHD/2007 BLOCK PERIOD: 01-04-1985 TO 31-3-1995 & 01-04-1995 TO 23-04-1996. JAYANTIBHAI NATHALAL PATEL 2 TEJAS APARTMENT 38 AZAD SOCIETY AMBAWADI AHMEDABAD VS THE D. C. I. T. CIRCLE- 1 JITENDRA CHAMBER ASHRAM ROAD AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI RAJEEV AGARWAL DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST ORDER OF THE DCIT AHMEDABAD CIRCLE-1 AHME DABAD DATED 29 TH DECEMBER 2006 PASSED U/S 144 READ WITH SECTION 158 BC AND 254 OF THE INCOME TAX ACT FOR THE ABOVE BLOCK PERIOD. 2. NONE PRESENT ON BEHALF OF THE ASSESSEE DESPITE S ERVICE OF THE NOTICE. THE ASSESSEE HOWEVER FILED A LETTER FOR FI XING THE HEARING IN THE CASE OF THE ASSESSEE ALONG WITH THE CASE OF ASHIS P . PATEL. NO CLUBBING IS REQUIRED IN THE MATTER. ADJOURNMENT WAS FOUND TO BE UNNECESSARY AND WAS ACCORDINGLY REJECTED. 3. WE HAVE HEARD THE LEARNED DR AND PERUSED THE FIN DINGS OF THE AUTHORITIES BELOW. BRIEFLY THE BACKGROUND OF THIS CASE IS THAT SEARCH U/S 132 OF THE IT ACT WAS CARRIED OUT ON 14 TH MARCH 1996 AT THE BUSINESS PREMISES AS WELL AS RESIDENTIAL PREMISES OF THE ASS ESSEE. THE BLOCK ASSESSMENT ORDER WAS PASSED EARLIER ON 30 TH APRIL 1997 U/S 158 BC IT(SS)A NO.86/AHD/2007 JAYANTIBHAI NATHALAL PATEL 2 READ WITH SECTION 143(3) OF THE IT ACT. THE ASSESSE E AGGRIEVED AGAINST THE ABOVE ORDER OF DCIT (ASSESSMENT) SPECIAL RANGE-5 AHMEDABAD PREFERRED APPEAL BEFORE THE ITAT AHMEDABAD B BEN CH WHO VIDE ORDER DATED 16 TH MARCH 2005 IN IT (SS)A NO.112/AHD/2007 SET ASIDE THE ORDER AND RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR RE-ADJUDICATION. THE AO ACCORDINGLY TOOK UP THE MATER AFRESH IN ORDER TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL. DESPITE GIVING SEVERAL NOTIC ES TO THE ASSESSEE FOR COMPLETION OF THE HEARING THE ASSESSEE DID NOT ATT END AND DID NOT COOPERATE WITH THE AO. THE AO CONSIDERING THE NON-C OOPERATIVE ATTITUDE OF THE ASSESSEE PROCEEDED EX-PARTE U/S 144 OF THE I T ACT AND RE-FRAMED THE BLOCK ASSESSMENT ORDER DATED 29 TH DECEMBER 2006. THIS ORDER IS PASSED BY THE DCIT AHMEDABAD CIRCLE-1 AHMEDABAD. THE ASSESSEE PREFERRED APPEAL AGAINST THE ABOVE BLOCK ASSESSMENT ORDER DATED 29 TH DECEMBER 2006 BEFORE THE LEARNED CIT(A)-V AHMEDAB AD WHO VIDE ORDER DATED 15 TH MARCH 2007 NOTED THAT THE APPEAL CANNOT BE ENTERT AINED BECAUSE IN THIS CASE SEARCH WAS CARRIED OUT PRIOR T O 1 ST JANUARY 1997 IN TERMS OF SUB SECTION (1) (B) OF SECTION 153 OF THE IT ACT. THE APPEAL OF THE ASSESSEE WAS TO BE FILED DIRECTLY TO THE TRIBUNAL A S WAS FILED EARLIER AND ACCORDINGLY THE APPEAL OF THE ASSESSEE WAS DISMISSE D BEING NON- MAINTAINABLE. THE ASSESSEE ACCORDINGLY PREFERRED TH E PRESENT APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE DCIT AHMEDABAD CICLE-1 AHMEDABAD DATED 29 TH DECEMBER 2006. COLUMN NO.9 OF THE APPEAL PAPER WAS BLANK BECAUSE IT WAS NOT FILLED IN GIVING THE PARTICULARS OF DATE OF COMMUNICATION OF THE ORDER APPEALED. SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE. THE ASSESSEE IN RESPONSE THERETO S UBMITTED THAT THE ORDER OF THE AO U/S 144 READ WITH SECTION 158BC AND 254 OF THE IT ACT WAS RECEIVED ON 09 TH APRIL 2007 AND PARA 9 OF THE APPEAL PAPER WAS ACCORDINGLY FILLED IN BY MENTIONING THE DATE OF COM MUNICATION OF THE ORDER APPEALED AS 09 TH APRIL 2007. IT WAS THEREFORE PRAYED THAT THIS WAS THE MAIN REASON FOR NOT SUBMITTING THE APPEAL ON TI ME BEFORE THE TRIBUNAL. IT(SS)A NO.86/AHD/2007 JAYANTIBHAI NATHALAL PATEL 3 4. THE LEARNED DR SUBMITTED THAT DESPITE THE MATTER WAS RESTORED TO THE FILE OF THE AO BY THE ORDER OF THE TRIBUNAL TH E ASSESSEE DID NOT CO- OPERATE WITH THE AO AND AS SUCH THE AO HAS TO FRAME EX-PARTE BLOCK ASSESSMENT ORDER AGAINST THE ASSESSEE. THE LEARNED DR FURTHER SUBMITTED THAT THE AVERMENTS CONTAINED IN THE APPLI CATION FOR CONDONATION OF DELAY ARE FALSE AND INCORRECT BECAUS E THE LEARNED CIT(A) IN THE ORDER DATED 15 TH MARCH 2007 NOTED THAT THE APPEAL IS INSTITUTED BEFORE HIM ON 18 TH JANUARY 2007. IT WOULD THEREFORE SHOW THAT THE ORDER OF THE AO DATED 29 TH DECEMBER 2006 WAS RECEIVED BY THE ASSESSEE PRIOR TO 18 TH JANUARY 2007. THE ASSESSEE HAS THEREFORE FALSEL Y MENTIONED 09 TH APRIL 2007 AS DATE OF RECEIPT OF THE ORDER OF THE AO. THE LEARNED DR SUBMITTED THAT CONSIDERING THE NON-COOPE RATIVE ATTITUDE OF THE ASSESSEE AND THAT FALSE AVERMENTS ARE CONTAINED IN THE APPEAL PAPER WOULD SHOW THAT THE ASSESSEE HAS NO REASONABLE CAUS E TO EXPLAIN THAT DELAY IN FILING OF THE APPEAL WAS DUE TO SUFFICIENT CAUSE. THE LEARNED DR THEREFORE SUBMITTED THAT THE APPEAL OF THE ASSESSE E MAY BE DISMISSED. 5. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ONS OF THE LEARNED DR WE ARE OF THE VIEW THAT THE APPEAL OF THE ASSES SEE IS NOT MAINTAINABLE BEING TIME BARRED AND IS LIABLE TO BE DISMISSED. TH E ASSESSEE FILED THE APPEAL IN THE OFFICE OF THE TRIBUNAL ON 03 RD MAY 2007. THE APPEAL TO THE TRIBUNAL LIES WITHIN SIXTY DAYS OF THE DATE ON WHIC H THE ORDER SOUGHT TO BE APPEALED AGAINST IS COMMUNICATED TO THE ASSESSEE . THE LEARNED CIT(A) IN THE ORDER DATED 15 TH MARCH 2007 SPECIFICALLY NOTED THAT THE APPEAL IS INSTITUTED AGAINST THE ORDER OF THE DCIT AHMEDABAD CIRCLE-1 AHMEDABAD BEFORE HIM ON 18 TH JANUARY 2007. IT WOULD SHOW THAT THE BLOCK ASSESSMENT ORDER DATED 29 TH DECEMBER 2006 WAS COMMUNICATED TO THE ASSESSEE PRIOR TO 18 TH JANUARY 2007. WHEN THE OFFICE OF THE TRIBUNAL ISSUED A NOTICE TO THE ASSESSEE BECAUSE CO LUMN NO.9 OF THE APPEAL PAPER WAS NOT FILLED IN THE ASSESSEE EXPLAI NED THAT THE BLOCK ASSESSMENT ORDER OF THE AO WAS RECEIVED ON 09 TH APRIL 2007 AND THAT IT(SS)A NO.86/AHD/2007 JAYANTIBHAI NATHALAL PATEL 4 DUE TO FILING OF THE APPEAL BEFORE THE LEARNED CIT( A) WRONGLY THERE IS A DELAY WHICH MAY BE CONDONED. THE EXPLANATION OF THE ASSESSEE IS FACTUALLY INCORRECT BECAUSE THE ORDER OF THE AO WAS NOT COMMUNICATED TO THE ASSESSEE ON 09 TH APRIL 2007 AS ALLEGED. IT WAS COMMUNICATED TO THE ASSESSEE PRIOR TO 18 TH JANUARY 2007 WHEN THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A). IT IS ALSO HIGHLY UNBELI EVABLE THAT THE ASSESSEE WAS NOT AWARE OF THE PROVISIONS OF LAW THAT APPEAL HAS TO BE FILED DIRECTLY BEFORE THE TRIBUNAL BECAUSE SEARCH WAS CONDUCTED BE FORE 01 ST JANUARY 1997 AS PER SECTION 253(1) (B) OF THE IT ACT BECAU SE THE ASSESSEE ON THE FIRST INSTANCE PREFERRED APPEAL BEFORE THE TRIBUNAL AGAINST THE ORIGINAL BLOCK ASSESSMENT ORDER IN IT(SS)A NO.112/AHD/1997. WHEN THE ASSESSEE WAS AWARE OF THE FACT THAT APPEAL LIES DIRECTLY TO THE TRIBUNAL AGAINST THE BLOCK ASSESSMENT ORDER THERE WAS NO REASON FOR THE ASSESSEE TO HAVE PREFERRED THE APPEAL BEFORE THE LEARNED CIT(A) AHM EDABAD IN THIS MATTER. CONSIDERING THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE BEFORE THE AO AND THAT THE ASSESSEE MADE FACTUALLY INCORRE CT STATEMENT IN THE APPLICATION FOR CONDONATION OF DELAY WE ARE OF THE VIEW THAT THERE WAS NO SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL BEFO RE THE TRIBUNAL WITHIN THAT PERIOD. WE ACCORDINGLY ACCEPT THE CONTENTION O F THE LEARNED DR THAT THE APPEAL IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED. IN VIEW OF THE ABOVE DISCUSSIONS THE APPEAL OF THE ASSESSEE IS DISMISSED BEING TIME BARRED. 6. AS A RESULT THE APPEAL OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED ON 23-04-2010 SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 23-04-2010 LAKSHMIKANT/- IT(SS)A NO.86/AHD/2007 JAYANTIBHAI NATHALAL PATEL 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD