Income Tax Appellate Tribunal - Delhi
Shri Shambhu Dayal Sharma, Delhi vs Ito, New Delhi on 2 February, 2018
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ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu
Dayal Sharma, Delhi.
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "SMC" : DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
ITA.Nos.211, 212 213/Del./2015
Assessment Years 1998-99, 1999-2000 & 2000-2001
Shri Shambhu Dayal Sharma,
500, Sainik Vihar, Pitampura,
Delhi-110034 vs. The Income Tax Officer
PAN AATPS5269C Ward-25(1) New Delhi.
(Appellant) (Respondent)
For Assessee : Ms. Parul Aggarwal, C.A.
For Revenue : Shri Kaushlendra Tiwari, Sr. D.R.
Date of Hearing : 25.01.2018
Date of Pronouncement : 02.02.2018
ORDER
All the appeals by assessee are directed against the common order of the Ld. CIT(A)-XXIV, New Delhi, dated 29th December, 2010, for the A.Y. 1998-1999, 1999-2000 and 2000-2001.
2. Briefly, the facts of the case are that in pursuance of ITAT's order dated 11th September, 2008, a notice under section 142(1) was issued to assessee requiring the assessee to file details in respect of unexplained deposit in his bank accounts. The A.O. noted the history of the assessee that earlier assessment was completed under section 147 of the I.T. Act, by making addition on account of unexplained bank deposits. The appeal of assessee were dismissed by the Ld. 2 ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
CIT(A) vide order dated 06th December, 2016. The assessee then preferred an appeal before ITAT and the Tribunal has set aside the assessment order and directed the Revenue to decide the issue afresh, after allowing reasonable opportunity to assessee by imposing cost of Rs.5000 on the assessee for not furnishing necessary evidence at the time of assessment. The assessee was directed to cooperate with the A.O. and not to seek adjournments. The matter was taken-up for hearing and instead of cooperating with the A.O. the assessee sought adjournments. Ultimately, break-up of the deposits in Bank account was given to the department which is in the nature of bank interest, sale of agricultural produce and advance received from various parties and transfer of amounts from family members. The assessee did not produce the details of crops cultivated. No evidence was filed for earning agricultural income. The assessee explained that agricultural produce was sold to certain parties who were summoned under section 131 of the Act, but none responded. The A.O. therefore, rejected the theory of earning of agricultural income. As regards amounts received from various parties and family members, the assessee did not file complete details and even addresses were incomplete. Summons were issued to them but the same were returned unserved with the remarks "Incomplete Address". None of them responded to the summons. The details of money so received from family members could not be verified. The A.O. in the absence of any details and 3 ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
material on record, rejected the explanation of assessee and noted that assessee filed incomplete, incorrect and misleading details, therefore, assessee failed to explain the unexplained bank deposits including the interest and made the addition in the order passed under section 147/143(3)/254 of the I.T. Act, 1961.
3. The Ld. CIT(A) noted that despite taking 14 adjournments, assessee did not produce any material evidence in support of his contention. Therefore, assessee did not comply with the directions of the Tribunal to explain the bank deposits. Therefore, appeals of the assessee were dismissed.
4. The Office of the Tribunal pointed out that all the appeals of the assessee are time barred by 1403 days. The assessee in column No.9 mentioned 11.01.2011 as date of communication of the impugned order. However, the appeals are filed in O/o. Tribunal on 10.01.2015. The assessee filed application for condonation of delay in which it is confirmed that the impugned order have been received on 10.01.2011 and there is delay of 1403 days in not filing the appeals within the period of limitation. It is explained in the application that appeals could not be filed due to lack of proper timely advise by the earlier two Counsels. It is stated that Shri Sushil Pruthi, C.A. who appeared before Ld. CIT(A), has not advised the assessee to file appeal before the Tribunal. Thereafter, new Counsel C.A. Santosh Garg was appointed who has also did not advise the assessee to file appeal before the Tribunal in quantum proceedings. 4
ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
Shri Santosh Garg expired on 12th March, 2013. Thereafter, on receipt of penalty order of the Ld. CIT(A) dismissing the appeals of the assessee vide order dated 13th October, 2014, the present Counsel has advised to file appeal in quantum appeals also. Learned Counsel for the Assessee, therefore, submitted that due to advise has not been given by both the C.As earlier, the appeals could not be filed on time. Learned Counsel for the Assessee argued that legal advise tendered by the professional and litigant acting upon, would be sufficient cause to seek condonation of delay and relied upon the decision of the Hon'ble Bombay High Court in the case of Vijay Vishin Meghani vs. DCIT Income Tax Appeal Nos.493 & 508 of 2015 and order of ITAT, Delhi Bench in the case of ACIT vs. Vireet Investment (P) Ltd., 165 ITD 27 (SB).
5. The Ld. D.R. on the other hand opposed for the condonation of delay on the ground that since the assessee did not comply with the order of the ITAT and no evidence was furnished before the authorities below on quantum addition, therefore, correct advise was given by earlier Counsels not to file appeal before the Tribunal. Therefore, delay cannot be condoned.
6. I have considered the rival submissions and perused the material on record. It is not in dispute that earlier the A.O. considered the issue of unexplained Bank deposits and made the addition because of sufficient evidence was not furnished before him. The Ld. CIT(A) dismissed the appeal of assessee. 5
ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
The Tribunal however, restored the matter to the file of A.O. subject to cost and assessee was directed to cooperate with the A.O. The assessee explained before A.O. that bank deposits are made, out of the sale of agricultural produce and funds received from various parties and family members but the explanation of assessee was not supported by any relevant and cogent documents or material on record. The A.O. issued summons against all the parties which were referred to by the assessee but none appeared and responded to the summons. Thus, the assessee failed to comply with the directions of the Tribunal to adduce sufficient evidence before A.O. in support of the unexplained bank deposits. The Ld. CIT(A), similarly noted that assessee has taken 14 adjournments before him and ultimately, did not produce any material evidence before him to explain the bank deposits. The Ld. CIT(A), therefore, dismissed the appeal of assessee. These facts clearly show that assessee did not have any evidence in support of any of the grounds of appeal even in the set aside proceedings. Therefore, the earlier Counsels of assessee have rightly not advised the assessee to file appeals before the ITAT because the appeals of the assessee would be without merits. It is, therefore, not a case of improper legal advise tendered by the professionals. The assessee was aware of the fact that he has no material evidence with him to explain the unexplained bank deposits. Therefore, assessee rightly did not choose to file appeals before the Tribunal within the period of limitation. The application 6 ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
for condonation of delay makes it clear that later on when penalty appeals were dismissed by the Ld. CIT(A), assessee thought that when no appeals have been filed on quantum which were rightly not filed, assessee would not get any relief in penalty matter, then the assessee filed these appeals before the Tribunal without any sufficient cause. However, such reason is improper and could not be accepted. Both the judgments relied upon by the assessee are not applicable to the case of the assessee. It is well settled Law that Tribunal can condone the delay if there was sufficient cause for delay in submission of appeals. The word "sufficient cause" would mean 'a cause which is beyond the control of the assessee'. Sufficient Cause means - which prevents a reasonable man of ordinary prudence acting under normal circumstances without negligence or inaction or want of bonafides. In the present case, assessee was aware of the fact that he has no material evidence with him to explain the unexplained deposits in the bank account, despite the matter is restored by the Tribunal to the file of A.O. subject to cost. Therefore, assessee never wanted to file any appeals in the matter. The assessee was rightly not advised to file appeals before Tribunal. The assessee did not act to file appeals within time because all appeals of assessee would be without merits. Therefore, the story now set-up by the assessee would not disclose any sufficient cause for delay in submission of the appeal. 7
ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
7. I t wo u l d b e a p p r o p r i a t e t o r e f e r t o s o me o f t h e ju d i c i al p r o n o u n c e me n t s o n t h e i s s u e o f d e l a y i n f i l i n g t h e a p p e a l s . I n t h e c a s e o f H i n d De v e l o p me n t C o r p n . v . I T O [ 1 9 7 9 ] 1 1 8 I TR 8 7 3 , t h e C a l c u t t a H i g h C o u r t h e l d t h a t a Tr i b u n a l c a n c o n d o n e t h e d e l a y i f t h e r e wa s s u f f i c i e n t c a u s e f o r t h e d e l a y i n t h e s u b mi s s i o n o f t h e a p p e a l . I n t h e c a s e o f Ve d a b a i a l i a s V i ja ya n a t a b a i B a b u r a o P a t i l v . S h a n t a r a m B a b u r a o P a t il [ 2 0 0 2 ] 2 5 3 I TR 7 9 8 ( S C ) , wh e r e i t wa s h e l d t h a t wh i l e e x e r c i s i n g d i s c r e t i o n u n d e r s e c t i o n 5 o f t h e Li mi t a t i o n Ac t , 1963, to condone delay for sufficient cause in not filing the a p p e a l wi t h i n t he p e r i o d p r e s c r i b e d , C o u r t s s h o u l d a d o p t a p r a g ma t i c a p p r o a c h . A d i s t i n c t i on mu s t b e ma d e b e t we e n a c a s e wh e r e t h e d e l a y i s i n o r d i n a t e a n d a c a s e wh e r e t h e d e l a y i s o f a f e w d a ys . Th e C o u r t o b s e r v e d t h a t wh e r e a s i n t h e f o r me r c o n s i d e r a t i o n o f p r e ju d i c e t o t h e o t h e r s i d e wi l l b e a r e l e v a n t f a c t o r a n d c a l l s f o r a mo r e c a u t i o u s a p p r o a c h . I n t h e l a t t e r c a s e n o s u c h c o n s i d e r a t i o n ma y a r i s e a n d s u c h a c a s e d e s e r v e s a l i b e r a l a p p r o a c h . No w i n t h e p r e s e n t c a s e s d e l a y 8 ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
i s n o t o f a f e w d a ys b u t of 1403 days. B e s i d e s , t h e r e i s a b s o l u t e l y n o v a l i d e x p l a n a t i o n / r e a s o n f o r t h e d e l a y. I n t h e c a s e o f C I T v . R a m M o h a n Ka b r a [ 2 0 0 2 ] 2 5 7 I T R 7 7 3 , t h e H o n ' b l e P u n j a b & H a r ya n a Hi g h C o u r t h a s o b s er v e d t h a t w h e r e t h e Le g i s la t u r e s p e l l s o u t a p e r i o d o f l i mi t a t i o n a n d p r o v i d e s f o r p o we r t o c o n d o n e t he d e l a y a s we l l , s u c h d e l a y can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. It is a settled principle of law that provisions relating to the specified p e r i o d o f l i mi t a t i o n mu s t b e a pp l i e d wi t h t h e i r r i g o r a n d effective consequences. In this case, delay for filing the a p p e a l l a t e f o r o n l y a f e w d a ys wa s n o t c o n d o n e d . I n t h e c a s e o f As s t t . C I T v . T a g g a s I n d u s t r i e s De v e l o p me n t Lt d . [ 2 0 0 2 ] 80 ITD 21(Cal.), Tribunal, Calcutta Bench, Calcutta, did not c o n d o n e t h e d e l a y f o r f i l i n g t he a p p e a l l a t e b y 1 3 d a ys b e c a u s e t h e d e l a y w a s n o t d u e t o s u f f i c i e n t c a u s e . Th u s, r e l yi n g o n t h e a bo v e ju d g me n t s , I h o l d t h a t a s s e s s e e f a i l e d t o e x p l a i n t h a t d e l a y i n f i l i n g t h e a pp e a l s wa s d u e t o s u f f i c i e n t cause.
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ITA.Nos.211, 212 & 213/Del./2015 Shri Shambhu Dayal Sharma, Delhi.
8. Considering the above discussion, the application for condonation of delay is rejected. I hold all the appeals of the assessee are time barred and are accordingly, dismissed in limine.
9. In the result, all the appeals of the assessee are dismissed.
Order pronounced in the open Court.
Sd/-
(BHAVNESH SAINI) JUDICIAL MEMBER Delhi, Dated 02nd February, 2018 VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT 'SMC' Bench, Delhi
6. Guard File.
//BY Order// Asst. Registrar : ITAT Delhi Benches :
Delhi.