TEJRAJ D. KOTHARI,MUMBAI vs. DCIT 24(2), MUMBAI

This appeal has been preferred by the assessee against order dated 26/06/2012 passed by the Ld. CIT (A), 34, Mumbai pertaining to the Assessment Year 2007-08, whereby the Ld. CIT(A) dismissed the appeal filed by the assessee against the assessment order passed u/s 143 (3) of the Income Tax Act, 1961 (for short ‘the Act’).

Brief facts of the case are that assessee a trader and retailer in jewellery business filed his return of income for the relevant assessment year declaring the total income of Rs. 10,20,510/-. The return was processed and in response to the notices issued u/s 143(2) and 142(1) the authorized representative of the assessee appeared before the AO and presented the case of the assessee. The 2 Assessment Year: 2007-08 AO after verification of the details filed by the assessee computed the total income of the assessee at Rs. 14,28,570/-(rounded off).

Aggrieved by the assessment order the assessee carried the matter before the CIT(A) in first appeal. The Ld. CIT(A) after hearing the assessee dismissed the appeal and upheld the findings of the AO. Still aggrieved, the assessee is in appeal before the Tribunal on the following effective grounds:-

The appellant craves leave to amend or alter any ground or add a new ground.” 4. This appeal was fixed for hearing for the first time on 2.7.2015, however, none appeared on behalf of the assessee on the said date. Since then the assessee has sought adjournments for more than five times. On the last date of hearing, i.e., on 23.02.17 the case was again adjourned at the written request of the assessee and posted the case for hearing for 05.04.17. On 05.04.17, again an application for adjournment was received through some person who was even not authorized by the assessee to appear before the Tribunal, stating therein that the authorized representative is out of station. In view of the conduct of the assessee, we rejected the application for further adjournment 3 Assessment Year: 2007-08 and decided to proceed ex-parte against the assessee and dispose of the appeals on the basis of material available on record, after hearing the departmental representative.

The Ld. departmental representative at the outset pointed out that the there is an inordinate delay of more than 600 days in filing the present appeal and the reasons for delay filed by the assessee is not sufficient to condone the delay, therefore, the appeal is not maintainable and is liable to be dismissed.

We have noticed that this appeal has already been dismissed by the SMC Bench of the Tribunal vide order dated 05.10.2015 on the ground that the appeal is barred by limitation. Later on the case was recalled in MA 289/M/15 and the assessee filed application dated 27.12.2016 for condonation of delay along with the copy of affidavit sworn by the assessee. Subsequently, vide application dated 14.02.17 the assessee submitted an affidavit sworn by Mr. Manish Oza, the then authorized representative of the assessee.

In the said affidavit, Mr. Manish Oza has stated that the assessee had handed over the original documents to him for filing appeal; the papers received were mixed up with other papers in his office due to which the present appeal could not be presented before the Tribunal within limitation period.

Sub-section 5 of section 253 of the Income Tax Act provides that the Tribunal may admit appeal or permit filing of memorandum of cross- objection of respondent after expiry of relevant period of limitation referred to in sub- section 3 and 4 section 253, if it is satisfied that there was sufficient cause for not presenting it within that period. So, sufficient cause is a condition precedent for condoning the delay. As per the settled law the question whether 4 Assessment Year: 2007-08 there exists a sufficient causes for condoning the delay or not is ordinarily a question of fact.