AMIT KUNDANMALJI KOTHARI,MUMBAI vs. ITO 24(1)(3), MUMBAI
In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that the assessee failed to show sufficient cause for the delay. The explanation provided was vague and lacked substantiation, such as an affidavit from the tax professional. Therefore, the delay could not be condoned.
What were the facts?
The assessee filed an appeal before the ITAT with an inordinate delay of 338 days. The assessee claimed the delay was due to a tax professional mixing up appeal papers. However, the name of the professional and details of the circumstances were not provided.
What were the issues?
Whether the delay in filing the appeal can be condoned based on the explanation provided by the assessee. The primary issue is the sufficiency of cause shown for the inordinate delay.
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: SHRI SANJAY ARORA (AM) & SHRI RAM LAL NEGI (JM)
This appeal has been filed by the assessee against order dated 30/05/2012 passed by Ld CIT(A)-34, Mumbai for the assessment year 2007- 08.
The assessee has challenged the impugned order on the following effective grounds:- “1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the disallowance made by the Assessing Officer towards purchase of Rs. 3,32,114/- due to non furnishing of authenticate vouchers and payments.
2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the disallowance made by the Assessing
Officer towards business promotion expenses of Rs. 15,000/- due to non furnishing of vouchers.
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the disallowance made by the Assessing Officer towards interest on loan of Rs. 59,255/- on account of high rate of interest compared to market interest rate.
4. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the disallowance made by the Assessing Officer towards shop insurance of Rs. 16,686/- due to non furnishing of insurance receipt.
5. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the disallowance made by the Assessing Officer towards benefit claimed u/s 80C of Rs. 21,155/- due to non furnishing of evidence.
6. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the addition made by the Assessing Officer of Rs. 52,413/- on account of low withdrawals for household expenses.” 3. This case was fixed for hearing on 03.05.16. Shri Khushal Shah, partner Modi Mehta & Associates LLP Chartered Accountants, sought adjournment on the ground that the authorized representative is out of station. We notice that initially this case was fixed for hearing on 27/10/2014. However, none appeared on behalf of the assessee. Hearing was accordingly adjourned to 31.3.2015 and the notice was sent to the assessee through registered post with acknowledge due (RPAD). Again on 31.03.15 none appeared on behalf of the assessee. The case was adjourned to 07.10.15 by way of last opportunity of being heard to the assessee and notice to this effect was issued to the assessee through RPAD. On 07.10.15 neither the assessee nor his authorized representative appeared. In the interest of justice the case was adjourned once again to 03.05.2016 and notice through RPAD served upon the assessee. From the conduct of the assessee it appears that the assessee is not serious and does not intend to pursue his appeal. Despite several adjournments granted with a view to enable the assessee to present his case, allowing an opportunity subsequent to a ‘final’ opportunity on an earlier occasion, the assessee has failed to avail the same. Since the assessee has been allowed abundant opportunity by the Tribunal, the assessee’s application for grant of adjournment was rejected by the Bench so that the hearing in the matter was proceeded with.
At the very outset, the Ld. Departmental representative (DR) pointed out that the present appeal is barred by the law of limitation as there is an inordinate delay of 338 days in filing the present appeal and the appellant has even not filed any application for condonation of delay. Therefore, the assessee’s appeal is not maintainable. On the other hand, the Ld. Authorised Representative (AR) submitted that the delay was caused due to the reasons mentioned in the affidavit submitted by the assessee. The reasons mentioned in the affidavit are sufficient to condone the delay, which may, therefore, be condoned and the appeal heard on merits.
We notice that the assessee has filed an affidavit (not attested by any authority) stating that the papers for filling appeal before the ITAT were handed over to a tax professional. The tax professional mixed up the appeal papers with the other papers in his office, due to which the appeal could not be filed within the limitation period.
As per the settled law, in order to claim condonation of delay, the appellant must show that he was diligent all along in taking appropriate steps and the delay was caused despite his due diligence. When the appellant has been negligent, not taking necessary steps for pursuing his remedy before the closing of the limitation period prescribed, he must be prepared to have his remedy barred without expecting condonation. In the present case, the assessee has neither disclosed the name of the tax professional to whom he states to have handed over the appeal papers for filing appeal nor any tax professional has sworn affidavit to this effect. Further, when were the appeal papers handed over to the counsel, and how and under what circumstances were they recovered, is not explained; rather, not even referred to. Who, ultimately, filed the appeal memo is also not divulged. In our view, the affidavit must have been submitted by the concerned tax professional who could not file the present appeal within the limitation period. The assessee has thus failed to show sufficient cause for condonation of delay of 338 days. We, therefore, dismiss the request of the appellant/assessee for condonation of unexplained and inordinate delay. The present appeal is accordingly dismissed in limine being barred by limitation.
In the result, the appeal filed by the assessee for the Asst. year 2007-08 is dismissed as not maintainable.
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