Income Tax Appellate Tribunal - Mumbai
Mohammedali A Shaikh, Mumbai vs Ito 13(2)(1), Mumbai on 11 October, 2017
1
ITA 5137/Mum/2014
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "B", MUMBAI
Before Shri D.T. Garasia (JUDICIAL MEMBER)
AND
Shri G Manjunatha (ACCOUNTANT MEMBER)
I.T.A No.5137/Mum/2014
(Assessment year 2009-10)
Mohammedali A Shaikh vs The ITO 13(2(1), Mumbai
32/33, Eastern Chambers,
128/A, Nandlal Jani Marg,
Poon Street, Mumbai-9
PAN : ALNPS9956P
APPELLANT RESPONDENT
Appellant by Shri Prakash G Jhunjhunwala
Respondent by Shri Suman Kumar
Date of hearing 27-09-2017
Date of pronouncement 11-10-2017
ORDER
Per G Manjunatha, AM :
This appeal filed by the assessee is directed against the order of CIT(A)- 24, Mumbai dated 27-03-2014 and it pertains to AY 2009-10. The assessee has raised the following grounds of appeal:-
1) "A humble prayer is made to condone the delay of 15 days in filing the appeal being caused under bonafide reason and compelling circumstances beyond control of the appellant.
2) On the facts & the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has 2 ITA 5137/Mum/2014 erred in adding a sum of Rs. 65,36,850/- being expenses incurred by the appellant on behalf of the company without considering the facts of the case that the same has already been considered in the books of account of the company.
3) a) On the facts & the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in treating the rent income as Income from house property while the appellant was doing the business of renting of shops and commercial premises in the complex.
b) On the facts & the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in disallowing the actual expenses incurred for earning the rental income.
4) On the facts & in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in adding a sum of Rs. 2,70,838/- being cash deposited in bank without considering the facts of the case.
5) On the facts & in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in disallowing a sum of Rs. 1,50,000/- on adhoc basis without considering the facts of the case."
2. At the time of hearing, the Ld.AR for the assessee submitted that there is a delay of 55 days in filing appeal before the Tribunal for which the assessee has filed a petition for condonation of delay along with affidavit explaining reasons for delay in filing appeal. The assessee further submitted that the assessee was under judicial custody at Arthur Road Jail for allegedly involved in criminal conspiracy of providing shelter to a criminal and was arrested on 21-09-2010 3 ITA 5137/Mum/2014 and kept in jail till he was acquitted by Hon'ble Judge of Greater Mumbai, MOCA Court on 21-03-2015. Therefore, the assessee could not be able to file appeal immediately on receipt of appellate order from the CIT(A) on 15-04- 2014. There is a reasonable cause in not filing the appeal within the time limit prescribed under the Act, therefore, the delay may be condoned and appeal may be disposed of on merits. The Ld.DR, on the other hand, strongly opposed the condonation petition filed by the assessee to argue that the reasons adduced by the assessee for condonation of delay in filing appeal is not in accordance with law. Therefore, the delay in filing appeal shall not be condoned.
3. Having heard both the sides and considered the material on record we find that the assessee was under judicial custody between 21-09-2010 to 20- 03-2015 in a criminal case and he was acquitted by a competent court on 20- 03-2015 for which the assessee has filed copy of court's order. We further observe that the CIT(A) has passed his order on 7-03-2014 which was served on the assessee on 15-04-2014 and during that time, the assessee was in judicial custody, therefore, could not file appeal in time. Therefore, considering the facts and also the reasons for not filing the appeal, we are of the view that appeal needs to be condoned in the interest of justice; hence, we condone delay in filing the appeal and admit the appeal for adjudication. 4
ITA 5137/Mum/2014
4. The brief facts of the case are that the assessee is an individual deriving income from salary and income from business, filed his return of income for AY 2009-2010 on 17-03-2010 declaring total income at Rs.8,62,840. The case was selected for scrutiny and notice u/s 143(2) and 142(1) of the Act along with questionnaire calling for various details were issued. In response, Shri Haroon M.A. Shaikh, son of the assessee appeared and furnished the details as called for. The assessment was completed u/s 143(3) on 30-12-2011 determining total income at Rs.85,25,193 inter alia making additions towards Income from house property, business income, cash received treated as income. Aggrieved by the assessment order, the assessee preferred appeal before the CIT(A).
5. Before CIT(A), the assessee neither appeared nor filed any details on various dates of hearing. Therefore, the CIT(A) passed exparte order and partly allowed appeal filed by the assessee, wherein he confirmed additions made by the AO towards cash receipts, business income of cycle shop and unexplained credits in bank account, however, partly allowed relief towards income from house property by allowing standard deduction against income from house property. Aggrieved by the order of CIT(A), the assessee is in appeal before us.
6. The Ld.AR for the assessee submitted that the CIT(A) has passed exparte order behind the back of the assessee without affording reasonable opportunity of hearing. The Ld.AR further submitted that as stated in the 5 ITA 5137/Mum/2014 petition for condonation of appeal, the assessee was under judicial custody between 21-09-2010 to 20-03-2015 because of which assessee was not able to appear before the AO to substantiate his case and was not able to file necessary evidences before the CIT(A) to justify his case. Therefore, the case may be set aside to the file of the AO to give one more opportunity of hearing to the assessee to furnish certain evidences.
7. The Ld.DR, on the other hand, strongly supported the order of the CIT(A) and submitted that the CIT(A) has given more than 15 dates of hearting to the assessee to file details, however, the assessee could not file any evidence to justify his case. Therefore, the order of the CIT(A) should be upheld.
8. We have heard both the parties, perused material available on record and gone through the orders of authorities below. The facts with regard to the assessee's judicial custody between 2010-2015 was not disputed by the lower authorities. The CIT(A), though has given number of hearings, the assessee could not attend the hearing for the reasons beyond his control. No doubt, the assessee has to appear before the authorities if he is interested in prosecuting his appeal and file necessary evidence to justify his case. In this case, the reasons quoted by the assessee for not appearing before CIT(A), is no doubt beyond his control. Before us, the assessee has filed a paper book which contains various details and contended that these evidences were not before 6 ITA 5137/Mum/2014 the AO as well as the CIT(A). Therefore, we are of the considered view that the issue needs to be re-examined by the AO in the light of the fact that the assessee was not able to appear during the assessment proceedings and appellate proceedings and also additional evidences filed by the assessee. Hence, we set aside the issue to the file of the AO and direct him to consider the issue afresh in the light of additional evidence filed by the assessee, after affording a reasonable opportunity of hearing.
9. In the result, appeal filed by the assessee is allowed, for statistical purposes.
Order pronounced in the open court on 11th October, 2017.
Sd/- sd/-
(D.T.Garasia) (G Manjunatha)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dt : 17th October, 2017
Pk/-
Copy to :
1. Appellant
2. Respondent
3. CIT(A)
4. CIT
5. DR
/True copy/ By order
Asstt. Registrar, ITAT, Mumbai