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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI JOGINDER SINGH & SHRI ASHWANI TANEJA (ACOUNTANT MEMBER)
O R D E R Per ASHWANI TANEJA, AM
These appeals have been filed by the assessee against different orders of Commissioner of Income-tax (Appeals), Mumbai [hereinafter called CIT(A)]. These appeals pertain to the same assessee and identical issue is involved in these appeals, therefore, these were heard together and being disposed of by this common order.
It is noted that in this case, the Ld CIT(A) had dismissed all these appeals on the ground that appeals were filed belatedly and therefore, Ld. CIT(A) refused to grant condonation and dismissed the appeals u/s 249(2) in limine.
Before us, the Ld. Counsel appearing on behalf of the assessee, Shri Dhawal Shah contended on behalf of the assessee that there were reasons beyond the control of the assessee and that is why appeals could not be filed in time and proper representation could not be made before the Ld. CIT(A). He drew our attention on the detailed petition filed supported by an affidavit wherein facts and circumstances under which the appeals could not be filed in time before the Ld CIT(A), have been narrated. He also made a statement at the bar that if an opportunity is given before the Ld.CIT(A), then proper representation would be made and every cooperation shall be extended to Ld.CIT(A) by submitting requisite information and paper book.
4. Per contra, Dr P Daniel, Special Counsel appearing on behalf of the revenue submitted that in case assessee undertakes to make proper representation before the lower authorities, then, he would have no serious objection. It was also submitted that the assessee should submit and justify the reasons for non-appearance before the Ld.CIT(A) on many occasions.
We have gone through the orders of the lower authorities, submissions 5. made by both the sides before us as well as petition for condonation of delay and detailed reasoning submitted by the Ld. Counsel along with the affidavit to explain the delay in filing of the appeals before Ld.CIT(A) and also lack of proper representation before the Ld.CIT(A). For the sake of ready reference, the reasons explained in detail in writing by the assessee before us are reproduced hereunder: “Reasons for delay in filing appeal and non-appearance at the time of hearing before Ld. CIT(A):
I submit that I am a family member of Late Shri Harshad S. Mehta. I am also a notified entity under the provisions of Special Courts (Trail of Offences Relating to Transactions in Securities) Act, 1992 w.e.f. 04.01.2007. 1 state that my assets were attached since 08.06.1992 since they were jointly held with other members of my family who got notified on 08.06.1992. In view of my notification under the Special Courts Act, all my assets including bank accounts are under control of the Custodian appointed for this purpose who manages the same under orders of Hon'ble Special Court. I submit that I have no other source of income except the income earned on attached assets.
2. For A.Y. 2004-05 to 2006-07, the assessment order was passed u/s 144 of the Act on 01.12.2008. Appeals against the said order were preferred before Ld. CIT(A) on 02.02.2009 with a delay of 17 days. Similarly, for A.Y. 2007-08, the assessment order was passed u/s 144 of the Act on 16.12.2009. Appeal against the said order was filed before Ld. CIT(A) on 18.02.2010 with a delay of 34 days. 3. The Ld. CIT(A) dismissed my appeals in limine for A.Y. 2004-05 to 2007-08 vide order dated 04.03.2013 on the following grounds: a.That the appeals were belatedly filed and no application for condonation of delay was filed. b.That no one appeared on behalf of the applicant at the time of hearing.
As regards the delay in filing of appeals, it is submitted that the delay was primarily for the reason that the appeal fees were not released by the custodian and hence the appeal could not be filed in time. It is reiterated that I am a notified entity and all my assets along with the bank accounts are managed by the custodian appointed under the Special Court Act. The applicant has to request the custodian to release fees for filing appeal. Accordingly, I had addressed a letter to the custodian on 31.12.2008 for release of appeal fees. The copy of the said letter is enclosed at Annexure W. Since the appeal fees were not released
by the custodian inspite of the visits and personal follow ups, the filing of appeal got delayed.
5.Moreover, during the said period, particularly for A.Y. 2007-08, I was also facing several other difficulties including non-availability of the tax consultants for preparing the appeals and filing the same. It is submitted that due to the notification and the attachment of my assets, I was unable to make the payments to the consultants and counsel for the purpose of making tax compliances. Further, number of matters before the Hon'ble Special Court and Honble Supreme Court had to be attended by me as a result of which I could not attend to filing of the impugned appeal before the Ld. CIT (A).
Your Honours would observe that I had taken all the initiatives to address letter to the custodian for the release of the appeal fee for filing the appeal and eventually as the fees were not released, the same was paid by cash obtained from others and appeal was filed before Ld. CIT(A). Thus, so far as the appeals were concerned, I was very much diligent and anxious about pursuing the appeals. The delay was caused for reasons which were beyond the control of the applicant and there was no deliberate delay or any malafide intention on the part of the applicant.
7. As regards non appearance before the Ld. CIT (A), I reiterate that I did not have the benefit of the professional assistance regularly, more particularly due to non availability of complete records with me as well as my inability to seek the presence of my consultants/ counsel. Further, during the said year number of proceedings were being carried out before the Hon'bte special court and Hon'ble Supreme Court. As a result of the same I had to frequently attend to these matters, particularly because they were pertaining to the sale of our residential house. Further, I also did not have sufficient staff to look after these proceedings before the Ld. CIT (A).
Thus, the applicant could not make compliances due to several reasons, which are summarised as under: a) No release of appeal filing fees by the custodian. b) Attachment of assets including bank accounts. c) Non availability of counsels / Advocates to represent d) Other special court matters pending before Hon'ble Special Court at such point of time.
e) No staff to get help for details gathering and attending to income tax proceedings as their services were dispensed with.
It is submitted that my above difficulties prevailing for a very long period has been judicially noticed and considered by the Hon'bte Tribunal in several matters. In this regard, reference may be drawn to the order of Hon'ble Mumbai Tribunal vide in the case of the Ashwin S. Mehta v. DCIT & Ors. [ITA No. 7310/M/2003] dated 31 .03.2006, wherein all the difficulties mentioned above are considered by the Hon'ble Tribunal and delay in filling the appeals was condoned.
Your Honours may also note that the Hon'ble Supreme Court in the case of Harshad Shantilal Mehta v. Custodian & Ors [231 ITR 871] has also taken judicial notice of peculiar conditions that would government a notified person by observing that, "Then, on account of his property being attached, he may not be in a position to deposit the tax assessed or file appeals or further proceedings under the relevant tax law which he could have otherwise done. ".
The applicant also relies on the decision of Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji & Ors. (167 ITR 471) and N. Balakrishnan v. M. Krishnamoorthy (AIR 1998 S.C. 3222) wherein the Hon'ble Court has held that a liberal view shall be taken while deciding condonation of delay.
Further, in various cases of the family members and other concerns, the Hon'ble Tribunal has taken a consistent view that delay shall be condoned in case of notified entities. Details of some of the orders is mentioned as under:
Name of the Case Delay condoned (No of Days)
Rasita Mehta v. DOT [ dated 11 days 28.11.2014 2 Rina Mehta v. DOT Et Ors [ITA No. 3047/M/2006] dated Upto 11.12.2007 [31 cases] 1145 days Ashwin S. Mehta v. DOT [ITA No. 7310/Mum/2003] Upto dated 31.03.2006]_[39_cases] 827days Growmore Research a Assets Mgt Ltd. v. ACIT E Ors Upto [3576/Mum/2007] dated 17.12.2007 [16 cases] 573 days
In view of the aforesaid factual and legal position, it is humbly prayed that the delay occurred in fitting of the appeal before Ld. CIT(A) and subsequent non attendance was due to reasons beyond the control of the applicant.”
6. It is further noted that the aforesaid reasons have been supported with an affidavit of the assessee in which all these facts have been deposed on oath. Nothing wrong has been pointed out by the Ld. Special Counsel of revenue in the said affidavit and reasons explained by the Ld. Counsel of the assessee. It is noted that there was delay of 17 days in the appeals for A.Ys 2004-05 to 2006-07 and delay of 34 days in the appeal for A.Y. 2007-08. A perusal of the reasons explained by the Ld. Counsel shows that there was sufficient cause which had led to delay in filing of the appeals before the Ld. CIT(A) and also caused improper representation before the Ld.CIT(A). In our opinion, in the given facts and circumstances of the case doors of justice should not be closed to the assessee without proper trial. The final tax liability of an assessee should not be determined without providing adequate opportunity of hearing. It is further noted that Tribunal in other cases of the family has condoned the delay, even for larger number of days. Further, Shri Dhaval Shah, the Ld. Counsel of the assessee gave an undertaking before the bench during the course of hearing that if another opportunity is given, then proper representation shall be made before the Ld. CIT(A). Thus, taking into account the facts and circumstances of the case, we condone the delay of 17 days and 34 days in filing of appeals before Ld.CIT(A) and send these appeals back to the file of the Ld.CIT(A). The assessee shall suo motto appear before the Ld. CIT(A) on 17-10-2016. The assessee shall also submit requisite written submissions and paper book and shall not take adjournment without a valid reason. The assessee shall also extend necessary cooperation to the Ld. CIT(A) in expeditious disposal of these appeals. Ld. CIT(A) shall admit these appeals and dispose of the same on merits. The Ld. CIT(A) shall give adequate opportunity of hearing to the assessee.
With these directions, these appeals are sent back to the file of the Ld. CIT(A) for disposal on merits.
8. A result, these appeals may be treated as allowed for statistical purpose.
Order pronounced in the court on this _13th day of July, 2016.