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Income Tax Appellate Tribunal, “D” Bench, Mumbai
Before: Shri Ravish Sood & Shri N.K. Pradhan
O R D E R
PER RAVISH SOOD, JM
The present appeals filed by the assessee are directed against the respective orders passed by the CIT(A)-28, Mumbai, dated 05.04.2017, which in turn arises from the assessment orders passed by the A.O under Sec. 143(3) r.w.s 147 Income Tax Act, 1961 (for short „Act‟), dated 18.03.2014 for A.Y. 2009-10 to A.Y. 2011-12. As common issues are involved in the aforementioned appeals, therefore, the same are being taken up together and disposed off by way of a consolidated order. We shall first advert to the appeal of the assessee for A.Y. 2009-10. The assessee has assailed the impugned order by raising the following grounds of appeal before us:
P a g e | 2 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) “I. Natural Justice - Ex- Parte Order
1. The learned CIT(A) erred in passing an ex-parte order, as the reasonable opportunity was not given to the Appellant to present his case. Now under bona fide belief one more opportunity may be given and same may he set aside to the CIT(A). II. Deny to accept appeal as there was a sufficient cause for delay 2. The Learned CIT(A) erred in not accepting the appeal of the appellant as there was a sufficient and genuine cause for non- filling of appeal within the limitation period. Therefore, the appeal of the appellant maybe accepted. Without prejudice to above, III. Notices issued are not Proper 3. On the facts and circumstance of the case, the notice issued u/s.148 was not served on the appellant, hence the whole reassessment proceeding was bad in law and required to be quashed. 4. On the facts and circumstances of the case, the notice issued u/s.143(2) was not served on the appellant within the statutory period and hence it was barred by limitation. Without prejudice to above, IV. Addition of Rs.66, 70,861/- as Bogus Purchase 5. The learned CIT (A) erred in not deciding the appeal on merits as the addition of Rs.66,70,861/- was made on the basis of information received from Sales tax department treating the purchases as bogus, without appreciating that the Appellant had submitted explanation during assessment proceedings, thus the addition of Rs.66,70,861/- maybe deleted. 6. Without prejudice to the above, when the sales are accepted as genuine then purchases of the Appellant cannot be said to be as bogus purchase, merely on some alleged information received, therefore addition may be deleted. 7. Without prejudice to the above, the addition may be restricted to the GP percentage of the Appellant. 8. The Appellant craves leave to add, amend, delete, alter, substitute, any or all the above grounds of appeal
.”
2. Briefly stated, the assessee HUF had filed its return of income for A.Y. 2009-10 on 08.09.2009, declaring its total income at Rs.2,72,310/-. The return of income filed by the assessee was processed as such under Sec.143(1) of the Act. Subsequently, the case was reopened under Sec. 147 of the Act. In compliance to the notice issued under Sec.148 the assessee filed its return of income on 16.05.2013, declaring its total income at Rs.4,90,730/-.
P a g e | 3 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) 3. The A.O while framing the assessment made the following additions/disallowances in the hands of the assessee:
Sr. No. Particulars Amount 1. Disallowance of unproved/non-genuine purchases: Rs.66,70,861/- 2. Disallowance of commission/brokerage: Rs.2,66,834/- Accordingly, the income was assessed by the A.O vide his order passed under Sec.143(3) r.w.s 147, dated 18.03.2014 at Rs.74,28,430/-.
Aggrieved, the assessee assailed the assessment framed by the A.O in appeal before the CIT(A). It was observed by the CIT(A) that though the assessee had received the assessment order on 20.07.2014, however, it had filed the appeal on 04.11.2015, which thus involved a delay of almost 18 months. It was observed by the CIT(A) that the assessee had filed an application dated 04.11.2015 explaining the reason leading to delay in filing of the appeal before him. The CIT(A) in order to consider the justification of the delay involved in filing of the appeal called upon the assessee to put an appearance before him on 06.01.2017. However, as on the stipulated date none appeared, therefore, the matter was fixed for 22.03.2017, on which date also no compliance was made by the assessee. In the backdrop of the aforesaid conduct of the assessee who despite having been afforded an opportunity to explain the reason leading to delay in filing of the appeal had failed to put up an appearance before him, the CIT(A) held a conviction that the assessee had adopted a pedantic and a casual approach. Accordingly, the CIT(A) not inspired by the claim of the assessee that there was a bonafide reason for delay in filing of the appeal declined to condone the delay by exercising the powers vested with him under sub-section (3) of Sec.249 of the Act. Resultantly, the appeal filed by the assessee was dismissed in limine.
P a g e | 4 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) 5. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee, at the very outset of the hearing of the appeal submitted that the CIT(A) had disposed off the appeal by way of an ex-parte order. The ld. A.R explaining the reasons for not putting up an appearance in the course of the hearing before the first appellate authority submitted, that though the first notice dated 24.12.2016 was issued to the assessee at the address mentioned in the memorandum of appeal, however, the same was not received and was returned back. As regards the second notice that was issued by the CIT(A) on 14.02.2017, it was submitted by the ld. A.R that the same was addressed to the assesses chartered accountant viz. M/s Jagiwala & Co. and was received by the latters employee. It is submitted by the ld. A.R that as the aforesaid employee had failed to either inform the chartered accountant or the assessee, therefore, neither the assessee nor his counsel could put up an appearance before the CIT(A) on the stipulated date of hearing of the appeal. Accordingly, it was submitted by the ld. A.R that the respective notices issued by the CIT(A) could not be complied with by the assessee for bonafide reasons. Adverting to the delay in involved in filing of the present appeal, the ld. A.R took us through an „affidavit‟, dated 17.04.2018 of the assessee wherein the facts leading to the delay involved in the present appeal had been stated. It was submitted by the ld. A.R that the assessment in the case of the assessee was framed by the A.O vide his order passed under Sec. 143(3) r.w.s 147, dated 13.03.2014, and the assessment order was received by the assessee on 20.07.2014. It was submitted by the ld. A.R that the assessee on learning about the additions made in its case had approached its chartered accountant viz. M/s Suresh A. Shah, CA, who however expressed his inability to attend the matter before the P a g e | 5 ITA Nos. 2448 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) higher authority. Accordingly, the assessee approached M/s Jagiwala & Co., Chartered accountant for the aforesaid matter. It was submitted by the ld. A.R that as advised by M/s Jagiwala & Co., Chartered accountant, a rectification application under Sec.154 of the Act assailing the validity of the reopening of the assessment, and also the notices issued under Sec. 143(3)/142(1) was filed. It was submitted by the ld. A.R that the aforesaid chartered accountant viz. M/s Jagiwala & Co., who was engaged by the assessee had remained under a bonafide impression that as the A.O would dispose off the aforesaid application and pass an order under Sec. 154 allowing consequential relief to the assessee, therefore, he had advised the assessee not to file an appeal before the higher authority. However, as no order under Sec. 154 was passed by the A.O till October, 2015, therefore, as per the advise of the chartered accountant viz. M/s Jagiwala & Co., the assessee filed an appeal with the CIT(A) on 04.11.2015. The ld. A.R took us through the aforesaid facts and submitted that the delay involved in filing of the present appeal before the CIT(A) had arisen on account of bonafide reasons. It was submitted by the ld. A.R that as the assessee was advised by its chartered accountant viz. M/s Jagiwala & Co. for not filing an appeal before the higher authority as the necessary remedy was available by filing a rectification application under Sec. 154 with the A.O, therefore, going by the said professional advice and remaining under a bonafide belief the assessee had not preferred an appeal before the CIT(A) within the time period prescribed in the statute. In sum and substance, it was averred by the ld. A.R that the delay involved in filing of the appeal had occasioned on account of bonafide reasons and not backed by any lapses or laches on the part of the assessee. It was submitted by the ld. A.R that the matter may be restored to the file of the CIT(A) with a direction to him to hear the appeal on merits.
P a g e | 6 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) 6. Per contra, the ld. Departmental Representative (for short „D.R‟) did not object to the restoration of the matter to the file of the CIT(A).
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. Admittedly, the appeal filed by the assessee before the CIT(A) involved a substantial delay. As the assessee despite having been put to notice by the CIT(A) had however failed to put up an appearance before him, therefore, the said appellate authority being of the view that the assessee was a habitual offender who had adopted a pedantic and casual approach even in the course of the appellate proceedings, had thus declined to condone the delay in exercise of the powers vested with him under sub-section (3) of Section 249 of the Act. We find that the assessee had filed before us an “affidavit”, dated 17.04.2018, therein explaining the reasons due to which notices dated 24.12.2016 and 14.02.2017 could not be complied with. As observed by us hereinabove, it is the claim of the assessee that on the first occasion the notice dated 24.12.2016 was not served upon the assessee and was returned back, as a result whereof the same had remained uncomplied with. As regards the notice that was subsequently issued by the CIT(A) on 14.02.2017, it is the claim of the assessee that as the same was served upon the employee of his chartered accountant who had failed to convey the same either to his employer i.e the chartered accountant or to the assessee, therefore, the said notice also could not be complied with and no appearance could be put up before the CIT(A). We have given a thoughtful consideration to the aforesaid claim of the assessee which has been supported by him on the basis of depositions made in the “affidavit”, and find substantial force in the same. In our considered view, going by the principle of preponderance of human probability, an assessee after filing an appeal would normally not avoid putting up an P a g e | 7 ITA Nos. 2448 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) appearance before the appellate authority, as the said appellate proceedings are in itself triggered at his instance. Be that as it may, in our considered view there is substantial force in the claim of the assessee as regards the reasons due to which it had failed to put up an appearance before the CIT(A) on both the occasions when the matter was fixed for hearing. Accordingly, we are of the considered view that the matter requires to be restored to the file of the CIT(A), who shall in exercise of the powers vested with him under sub-section (3) of Sec. 249 consider the sufficiency of the reasons leading to the delay involved in filing of the appeal by the assessee before him. Needless to say, the CIT(A) shall in the course of the set aside proceedings afford a reasonable opportunity of being heard to the assessee. Accordingly, in terms of our aforesaid observations we restore the matter to the file of the CIT(A).
The appeal filed by the assessee is allowed for statistical purposes. A.Y. 2010-11 9. As the facts and the issue involved in the present appeal remains the same as were there before us in the appeal of the assessee for A.Y 2009-10 viz. , therefore, our order therein passed shall apply mutatis mutandis for disposal of the present appeal viz. ITA No. 2449/Mum/2018 for A.Y. 2010-11.
Accordingly, in terms of our aforesaid observations the matter is restored to the file of the CIT(A), who is directed to consider the sufficiency of the reasons leading to delay in filing of the appeal by the assessee before him, afresh.
P a g e | 8 to 2450/Mum/2018 AYs. 2009-10 to 2011-12 Shri Rajesh D. Sheth Vs. Income Tax officer -13(2)(2) A.Y. 2011-12 11. As the facts and the issue involved in the present appeal remains the same as were there before us in the appeal of the assessee for A.Y 2009-10 viz. , therefore, our order therein passed shall apply mutatis mutandis for disposal of the present appeal viz. ITA No. 2450/Mum/2018 for A.Y. 2011-12.
Accordingly, in terms of our aforesaid observations the matter is restored to the file of the CIT(A), who is directed to consider the sufficiency of the reasons leading to delay in filing of the appeal by the assessee before him, afresh.