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Income Tax Appellate Tribunal, C Bench, Mumbai
Before: Shri Jason P. Boaz & Shri Sandeep Gosain
This appeal by the assessee is admittedly directed against the order of the CIT-II, Thane dated 28.03.2013 passed under section 263 of the Income Tax Act, 1961 (in short 'the Act') for A.Y. 2005-06.
In this case, the hearings were fixed on at least 7-8 occasions, but on all these dates none appeared for the assessee nor was any adjournment sought on its behalf. On two occasions when the Bench did not function, the hearings were adjourned through intimation on the notice board. Even issue of notice by RPAD on more than one occasion did not elicit any response from the assessee. Finally, when the case was called for hearing on 06.04.2017, none was present for the assessee, nor was any adjournment sought on its behalf. The learned D.R., however, was present and ready to represent the case for Revenue. In these circumstances, we are constrained to take the view that the assessee is not interested in pursuing the matter and therefore proceed to dispose off the same with the assistance of the learned D.R. for Revenue and the material on record.
M/s. Om Gagangiri Stone Cursher 3.1 We have heard the learned D.R. for Revenue and perused and carefully considered the material on record. From a perusal of Form No. 36 (Revised), it is seen that the order appealed against in this appeal is the order of the CIT-II, Thane passed under section 263 of the Act vide order dated 28.03.2013 for A.Y. 2005-06, which is said to have been served on the assessee on 27.03.2014 (Form36, S.No. 9). We also observe from the details filed in this appeal that the order of assessment passed subsequent to the revision order under section 263 of the Act was completed under section 143(3) r.w.s. 263 of the Act vide order dated 21.03.2014. The fact that the assessee has actively participated in the re-assessment proceedings under section 143(3) r.w.s. 263 of the Act that resulted in order of assessment dated 21.03.2014 being passed is evident from a reading thereof. Hence, it is certain that the revision passed by the CIT-II, Thane under section 263 of the Act dated 28.03.2013, i.e. the order appealed against in this appeal, could not have been served on the assessee as late as 27.03.2014, which is after the date of subsequent assessment order passed under section 143(3) r.w.s. 263 of the Act for A.Y. 2005-06, i.e. 21.03.2014. In these factual circumstances, it is clearly evident that this appeal against the order under section 263 of the Act for A.Y. 2005-06 dated 28.03.2013 which was filed on 26.05.2014; has been filed belatedly. 3.2 Though it is not clear as to the date on which the order under section 263 of the Act dated 28.03.2013 passed by the CIT-II was served upon the assessee, from the discussion of facts/dates, etc. in para 3.1 of this order (supra) it is certain that this order was certainly not served on the assessee on 27.03.2014 as stated in Form NO. 36, but much earlier, since there was active participation by the assessee’s partners in post 263 order’s assessment proceedings as is evident from mention of AO’s questionnaire/ letters to the assessee dated 26.02.2013, 24.02.2014, 07.03.2014, etc. No petition for condonation of delay/affidavit, etc. has been filed by the assessee. What is clear is that the order appealed against, i.e. the order under section 263 of the Act was dated 28.03.2013 and the appeal directed against it was filed more than a year later on 26.05.2014, so there is no M/s. Om Gagangiri Stone Cursher doubt that this appeal was filed belatedly by at least a little under a year after excluding the period for filing the appeal before the ITAT. After a careful consideration of the records before us, we are of the considered view that condonation of delay in filing appeals is not a right and there has to be reasonable cause for the same; each case being weighted by its own facts and circumstances. In the case on hand, it would appear to us that this appeal has been filed before the Tribunal only after the order of assessment for A.Y. 2005-06 under section 143(3) r.w.s. 263 of the Act dated 21.03.2014 was passed in pursuance of the order under section 263 of the Act dated 28.03.2013. It is pertinent to note that the assessee did not file any petition before the Tribunal for condoning the delay. 3.3 The Hon'ble Apex Court in the case of Vedabai vs. Shantaram Baburao Patil & Others (2002) 253 ITR 798 has held that while exercising discretion in dealing with case of condonation of delay, it would depend on the facts of each case. In the case on hand, in the absence of any petition for condonation of delay being filed and the assessee/authorised representative not being present before the Tribunal, we are of the view that no case for condonation of the delay in filing the appeal can be made out merely because the assessee’s case may call for sympathy or out of benevolence. In coming to this finding we draw support from the decisions of the Hon'ble Apex Court in the case of MST Katiji (116 ITR 471), Vedabai (253 ITR 798); and of the ITAT Chennai Bench (Third Member) in the case of Tractors & Farm Equipment Ltd. (2007) 104 ITD 149 (Chennai) (TM). We accordingly do not condone the delay in filing this appeal or admitting the same for adjudication and dismiss the same in limini. 4.1 Additionally, it is also relevant to peruse the grounds of appeal raised by the assessee in this appeal, which are as under: - “The Learned Assessing Officer has made the following additions to the returned income, during course of fresh assessment u/s 143 r.w.s 263 of the Income Tax Act: A. Revision u/s 263
1. On the facts and circumstances of the case and in law, learned CIT has erred In revising the original assessment order u/s 263.
M/s. Om Gagangiri Stone Cursher 2. On the facts and circumstances of the case the learned Assessing Officer has erred in assessing the assessee's income at Rs.21,20,043 as against returned loss of Rs.1,32,157 B. Unexplained cash credit Rs.15,50,000 3. On the facts and circumstances of the case the learned Assessing Officer has erred in treating unsecured loan of Rs.15.50,000 as unexplained cash credit. C. Capital introduction of Rs. 6,50,000 4. On the facts and circumstances of the case and in law, the learned Assessing Officer has erred in considering capital introduction of Rs 6,50,000 as income of the firm.
On the facts and circumstances of the case and in law, the Learned Assessing Officer has erred in considering capital introduction as income, even if such capital introduction was not part of show cause notice dated 18-3-2013 u/s 263.” 4.2 On perusal of the grounds of appeal
raised (supra), we observe that in the grounds (supra) the assessee appears to have challenged issues arising out of the order of assessment for A.Y. 2005-06 passed under section 143(3) r.w.s. 263 of the Act vide order dated 21.03.2014, which was passed subsequent to the order of the CIT-II, Thane under section 263 of the Act vide order dated 28.03.2013. An appeal against this order of assessment, in our view, would not lie before the Tribunal as in the case on hand but before the concerned CIT(A). Therefore, this appeal is not maintainable before the Tribunal is liable to be dismissed in linine. We hold and direct accordingly, by also dismissing this appeal being unmaintainable in limine.