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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI D. MANMOHAN, VP & SHRI SANJAY ARORA, AM
Per Sanjay Arora, A. M.: Vide this Appeal the Assessee agitates the Order by the Commissioner of Income Tax (Appeals)-36, Mumbai (‘CIT(A)’ for short) dated 30.08.2011, dismissing the Assessee’s appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the assessment year (A.Y.) 2008- 09 dated 16.12.2010.
Hassan Ali Khan v.ACIT (A.Y. 2008-09) 2. None appeared when the assessee’s appeal was called out for hearing. It was, however, observed by the Bench that the assessee’s appeal is delayed by a period of 118 days, being filed on 24.02.2012, as against the due date of 29.10.2011, which fact stands duly communicated to the assessee by the Registry of the Tribunal, per a defect memo dated 04/2/2013 on the receipt of the appeal. Condonation application of even date is enclosed along with the appeal. The same states that the assessee’s counsel, Shri S.V. Shinde, CA, was subject to search by the Enforcement Directorate (ED) on 23.03.2011. As a result, the entire documentation prepared, including that maintained on the hard disk of the computer, as well as hard copies (of the books of account/Balance-Sheet, etc.), pertaining to the assessee, were seized. The appeal papers, prepared thus with much delay, had to be approved by the assessee, in judicial custody since March 7, 2011, leading to further delay, and which thus came to be filed in February, 2012. The delay is accordingly prayed for being condoned, being neither intentional nor deliberate.
We shall at first consider the assessee’s condonation petition. The same is, firstly, not accompanied or supported by an Affidavit by the assessee’s counsel, Shri S.V. Shinde, CA, seizure of the relevant records from whose office on search, and the delay in obtaining the same, is the stated principal cause for the delay. The same is also sans any reference to dates, viz. the date on which the application for the copy of the seized material was filed, as well as the date on which the same stood granted and, accordingly, the copies obtained. There is in fact no material accompanying the assessee’s appeal, viz. in the form of a paper-book, etc. – so much for the relevant material, as well as the approval thereof by the assessee. In this regard, we note that the only addition in assessment and, thus, agitated in appeal by the assessee, is for Rs.10,60,060/-, made under section 69C of the Act. The Revenue, estimated the unexplained (as to source) expenditure on living expenses, as for the earlier years (AYs. 2001-02 to 2007-08), at Rs.30 lacs, based on the assessee’s statement under section 132(4) dated 05.01.2007, noticing him to be maintaining a lavish lifestyle, allowing though credit for the income returned, 2 Hassan Ali Khan v.ACIT (A.Y. 2008-09) being Rs.19.40 lacs for the current year. The assessee, whose case for the earlier years is not supported by any material, claiming to be misconstrued in-as-much as he specified the amount only in relation to the year of deposition, i.e., the previous year relevant to AY 2007-08 and not the earlier years, would not be applicable in- as-much the year under reference is a later, following, year. The assessee’s case for the current year, as borne out by the extensive grounds of appeal, is of being unable to lead a lavish (usual) lifestyle for the relevant year as he was under heavy litigation in India. What material, we wonder, does one need to establish this, apart from (say) furnishing copies of the notices or show-causes being issued to him by different Departments, much less, that prepared, as claimed, assiduously, by his CA, Sh. Shinde. How would the books of account or balance-sheet/s, stated to be painstakingly prepared by Sh. Shinde, also on his computer, seized by ED, would be relevant in the matter? No doubt, we do not find any such material by the assessee in substantiation of his case on record. Such material, if any, could in fact also be produced subsequent to the filing of the appeal, even at the time of its’ hearing. Again, it stands to reason that if the assessee could engage counsels for, or be otherwise involved in, litigation, this matter could also be attended to? Finally, the search by ED is on 23.3.2011, while the impugned order is dated 30.08.2011. The non-obtaining of the papers/documentation, even as the assessee’s case is without reference to any such material, would therefore be, if at all, before the first appellate authority. We observe no plea qua lack of opportunity by him before us. The plea of non-availability of the relevant materials - which remain unspecified, could thus not be validly taken before the Tribunal. In fact, as afore- stated, the material, if any, could be furnished even subsequent to filing the appeal, or at the time of its’ hearing. All that the assessee is required to state, at the stage of filing the appeal, is the reason/s that informs his grievance, i.e., the grounds on which the Revenue’s action is assailed by him.
4. We, therefore, on all fours, find the state reason/s for the delay as un- substantiated; rather, incorrect, and merely excuses, so that the same remains totally unexplained. The law on condonation, as explained by the Hon’ble Apex 3 Hassan Ali Khan v.ACIT (A.Y. 2008-09) Court time and again, is of a liberal approach in the matter in-as-much as all that an appellant gets, when the admitted delay is condoned, is a decision on merits, so that the endeavour should be that the substantial cause of justice prevails. At the same time, it cannot be that the law of limitation is disregarded as of no consequence, so that a breach thereof is disregarded even where deliberate, which becomes apparent from the record in-as-much as the seizure – the stated cause, occurred months prior to the date of the impugned order, with it (seizure) being in fact itself of no relevance as no accounts, balance-sheet, etc. or documentation, stated to be prepared with much time and labour, were either required for the purpose of filing the appeal, or in fact filed at any stage, leading us to state of it as being not valid. The assessee, who is represented by a separate counsel in tax matters, has, we may add, nowhere shown his engagement with litigation during the intervening period, ascribing the delay to his tax counsel. It is all this that led us to state of the stated reason for the delay as incorrect, and of it being, consequently, deliberate or, in any case, occasioned by laches. A petition based on a wrong claim or incorrect premise cannot surely be accepted. Further, the assessee had already filed appeals for the earlier years before this Tribunal, so that it is not the case, nor is contended to be so, that he was not aware of the procedure in its respect. We, accordingly, consider it to be not a fit case to condone the delay.
Before parting with this order, it may be pertinent to state that this appeal, tagged along with other appeals, was posted for 17.2.2016 for the purpose of seeking clarifications. A junior Advocate, Shri Ramanath Prabhu, for HSA Advocates, who are not Advocates on record, appeared and sought adjournment. There is also no vakalatnama in his favour. The question of adjournment under the circumstances does not arise. Written submissions, allowed to be filed for the years (appeals) for which they stand authorized, were filed on 22.2.2016, which bear reference to this appeal (number) as well. The same stand though perused, to find no reference to the matter/s in issue.
Hassan Ali Khan v.ACIT (A.Y. 2008-09) 6. In the result, the assessee’s appeal is dismissed as unadmitted. Order pronounced in the open court on February 29, 2016.