MOHD ISMAIL NOORMOHD SHAIKH,MUMBAI vs. ITO WD 2(2), THANE

The grounds of appeal raised by the assessee in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called “the Tribunal”) read as under:-

At the time of hearing before us, none appeared on behalf of the assessee. Therefore, we proceed to dispose of the appeal after hearing the learned D.R.

At the outset, we find that this appeal is delayed by 9 days in filing the appeal by the assessee before the Tribunal as per the time limit for filing the appeal before the Tribunal as stipulated u/s 253(3) of the Act. The assessee vide his letter dated 3rd February, 2014 along with affidavit of even date submitted that the appeal was filed on 23rd May, 2013 while the order dated 01-02-2013 of the learned CIT(A) was received on 14-03-2013 , resulting in delay of 9 days in filing the appeal with the Tribunal. In this connection, the assessee has filed affidavit dated 03-02-2014 for condonation of the delay of 9 ITA 4155/Mum/2013 3 days in filing of the appeal with the Tribunal, whereby the assessee prayed for the condonation of delay of 9 days. The assessee vide his affidavit dated 3-2-2014 and submitted that due to indisposition and illhealth of the assessee, the assessee could not file the appeal within the stipulated time as prescribed u/s 253(3) of the Act . The assessee submitted that the delay was not intentional and the delay occurred solely due to his ill health and indisposition and the assessee prayed for condonation of delay in filing the appeal before the Tribunal by 9 days.

The learned D.R., on the other hand, opposed the condonation of delay application in filing the appeal by the assessee late by 9 days.

We have considered the submissions of the assessee as made through letter and affidavit both dated 03-02-2014 as well the contentions of the learned DR. We have observed from the assessee’s affidavit dated 3-2-2014 that the assessee was prevented by sufficient cause being ill-health and indisposition in filing his appeal before the Tribunal within the time stipulated under the provisions of Section 253(3) of the Act whereby the filing of appeal is delayed by 9 days. In our considered view, there is no deliberate delay on the part of the assessee in filing this appeal late by 9 days and the assessee did had a sufficient cause being ill-health and indisposition for not filing appeal within time limit prescribed u/s 253(3) of the Act. In view of the bona-fide reasons submitted by the assessee vide affidavit dated 03-02-2014 and in the light of the decision of Hon’ble Supreme Court in the case of Collector of Land Acquisition v. Mst. Katiz and Others, (1987)167 ITR 471(SC), we deem it fit and proper to condone the delay of 9 days in filing this appeal by the assessee before the Tribunal as the assessee was prevented by a sufficient cause in filing this appeal late by 9 days with the Tribunal and accordingly we condone the same and admit this appeal.

The brief facts of the case are that the assessee is engaged in the business of crockery and cutlery items. The return of income was selected for scrutiny and notice u/s 143(2) r.w.s. 142(1) of the Act was issued by the AO to the assessee. The assessee did not submit the bank details etc. as were called by the AO. The summons were issued by the AO to the bankers of the assessee and in response the bank submitted the bank statement of the assessee , wherein the A.O. observed that assessee has deposited cash amounting to Rs. 15,01,000/- on 17th June, 2005 and on the same day the amount of Rs. 15,01,000/- was transferred to other account. The assessee was asked the source of income and the reason for transfer of the amount, but no explanation was offered by the assessee. Further, it was observed by the A.O. from the P&L account that net profit is declared at Rs. 1,22,890/- but in the computation of income, the net profit was shown at Rs. 62,890/-. When the assessee was asked by the AO, no explanation was given by the assessee with respect to the difference of Rs. 60,000/-. The A.O. observed from the submission received from Mr. Naval Karnik, the C.A. on 16th December, 2008 that the assessee is a partner of M/s Asia Group and invested an amount of Rs. 5 lakhs in cash and received interest of Rs. 30,000/- and the same was not shown in the computation of income filed along with return of income. Thus, the A.O. made addition of Rs. 15,91,000/- and added the same to the total income of the assessee as per details as stated above. Further, there was an addition of Rs. 5,600/- on account of expenses which were also not vouched properly, vide assessment orders dated 26.12.2008 passed by the AO u/s 143(3) of the Act.

Before the learned CIT(A) , the assessee did not comply with the various notices issued by the learned CIT(A) fixing the appeal for hearing but the assessee did not appear before the learned CIT(A). The learned CIT(A), hence, dismissed the appeal of the assessee at the threshold in limine without discussing the issues in appeal on merits, vide appellate orders dated 01-02- 2013.

Aggrieved by the appellate orders dated 01-02-2013 passed by the learned CIT(A), the assessee filed second appeal with the Tribunal.

None appeared for the assessee when the appeal was called for hearing. The learned D.R. on the other hand supported the order of the learned CIT(A) and submitted that the assessee did not comply with the various notices issued to him by the learned CIT(A) as well there was not proper appearances before the learned AO.

We have heard the learned D.R. and perused the material available on record. We have observed that it was incumbent on the learned CIT(A) to decide the appeal of the assessee on merits as provided u/s 250(6) of the Act which reads as under:-

In the result, the appeal filed by the assessee in ITA N0. 4155/Mum/2013 for the assessment year 2006-07 is allowed for statistical purposes.