IN INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE SHRI SANJAY GARG (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. No.1180 /Mum/2015 (Assessment Year: 2008-09) Rina S Mehta Vs ACIT, CC-23 (Now ACIT, CC 32, Madhuli, 3rd Floor 4(1), Mumbai Dr A.B. Road, Worli Mumbai-18 PAN : ABNPM8222C (Appellant) (Respondent) Appellant by Shri Dharmesh Shah Respondent by Dr. P Daniel Date of hearing : 17-10-2016 Date of pronouncement : 17 -10-2016 ORDER Per ASHWANI TANEJA, AM: This appeal has been filed against order of Commissioner of Income-tax (Appeals)-52, Mumbai [hereinafter called CIT(A)] dated 31-12- 2014 passed against assessment order u/s 144 dated 09-12-2010 for A.Y. 2008-09 on following grounds: Grounds of appeal against order dated 31.12.2014 u/s. 250 of Act passed by Ld. Commissioner of Income-tax (Appeals) -52, Mumbai. Following grounds of appeal are without prejudice to each other: 1. Ld. Commissioner of Income-Tax (Appeals) has 2 I.T.A. No.1180/Mum/2015 erred in law and in facts in dismissing appeal in Limine. 2. Ld. Commissioner of Income-tax (Appeals) has erred in law and in facts in not condoning delay of about 10 months in filing appeal before him. 3. Ld. Commissioner of Income-tax (Appeals) has erred in Law and in facts in confirming levy of penalty of Rs.2,23,17,740/- u/s 271(1)(c) of Act. 2. During course of hearing it was submitted at outset by Ld. Counsel that in this case, Ld. CIT(A) has not adjudicated appeal on merits for reason that appeal was filed late and he refused to grant condonation of delay in absence of proper explanation for delay. It was further submitted that in case of assessee, similar situation had arisen in earlier years wherein CIT(A) had refused to grant condonation of delay and matter reached upto Tribunal and Tribunal sent matter back to Ld.CIT(A) after condoning delay. Copies of following orders of Tribunal were placed before us :- 1. In case of assessee order dated 13-07-2006 2. Order in case of Reena & Sudhir S Mehta dated 23-09-16 3. Order in case of assessee dated 29-04-2016 Our attention was also drawn upon application for condonation of delay and other supporting evidence explaining reasons for delay in filing of appeal before Ld. CIT(A). 3. Per contra, Ld. DR opposed contentions of Ld. Counsel and relied upon order of Ld. CIT(A). But he did not make any distinction between facts of earlier years and year before us. 4. We have gone through order of Ld.CIT(A), application for condonation of delay along with requisite evidence filed before Ld.CIT(A) vide letter dated 09-120-2014 as well as aforesaid orders of 3 I.T.A. No.1180/Mum/2015 Tribunal passed in assessee s own case. It is noted by us that this issue has already been adjudicated by Tribunal in assessee s own case for earlier assessment years. Tribunal vide order dated 13-07-2006 disposing appeal for assessment years 2004-05, 2005-06, 2006-07 and 2007-08 observed as under :- 5. We have gone through orders of lower authorities, submissions made by both sides before us as well as petition for condonation of delay and detailed reasoning submitted by Ld. Counsel along with affidavit to explain delay in filing of appeals before Ld.CIT(A) and also lack of proper representation before Ld.CIT(A). For sake of ready reference, reasons explained in detail in writing by assessee before us are reproduced hereunder: Reasons for delay in filing appeal and non-appearance at time of hearing before Ld. CIT(A): 1. I submit that I am family member of Late Shri Harshad S. Mehta. I am also notified entity under provisions of Special Courts (Trail of Offences Relating to Transactions in Securities) Act, 1992 w.e.f. 04.01.2007. I state that my assets were attached since 08.06.1992 since they were jointly held with other members of my family who got notified on 08.06.1992. In view of my notification under Special Courts Act, all my assets including bank accounts are under control of Custodian appointed for this purpose who manages same under orders of Hon'ble Special Court. I submit that I have no other source of income except income earned on attached assets. 2. For A.Y. 2004-05 to 2006-07, assessment order was passed u/s 144 of Act on 01.12.2008. Appeals against said order were preferred before Ld. CIT(A) on 02.02.2009 with delay of 17 days. Similarly, for A.Y. 2007-08, assessment order was passed u/s 144 of Act on 16.12.2009. Appeal against said order was filed before Ld. CIT(A) on 18.02.2010 with delay of 34 days. 3. Ld. CIT(A) dismissed my appeals in limine for A.Y. 2004-05 to 2007-08 vide order dated 04.03.2013 on following grounds: a.That appeals were belatedly filed and no application for condonation of delay was filed. 4 I.T.A. No.1180/Mum/2015 b.That no one appeared on behalf of applicant at time of hearing. 4. As regards delay in filing of appeals, it is submitted that delay was primarily for reason that appeal fees were not released by custodian and hence appeal could not be filed in time. It is reiterated that I am notified entity and all my assets along with bank accounts are managed by custodian appointed under Special Court Act. applicant has to request custodian to release fees for filing appeal. Accordingly, I had addressed letter to custodian on 31.12.2008 for release of appeal fees. copy of said letter is enclosed at Annexure W. Since appeal fees were not released by custodian inspite of visits and personal follow ups, filing of appeal got delayed. 5. Moreover, during said period, particularly for A.Y. 2007-08, I was also facing several other difficulties including non-availability of tax consultants for preparing appeals and filing same. It is submitted that due to notification and attachment of my assets, I was unable to make payments to consultants and counsel for purpose of making tax compliances. Further, number of matters before Hon'ble Special Court and Honble Supreme Court had to be attended by me as result of which I could not attend to filing of impugned appeal before Ld. CIT (A). 6. Your Honours would observe that I had taken all initiatives to address letter to custodian for release of appeal fee for filing appeal and eventually as fees were not released, same was paid by cash obtained from others and appeal was filed before Ld. CIT(A). Thus, so far as appeals were concerned, I was very much diligent and anxious about pursuing appeals. delay was caused for reasons which were beyond control of applicant and there was no deliberate delay or any mala fide intention on part of applicant. 7. As regards non appearance before Ld. CIT (A), I reiterate that I did not have benefit of professional assistance regularly, more particularly due to non availability of complete records with me as well as my inability to seek presence of my consultants/ counsel. Further, during said year numbers of proceedings were being carried out before Hon'ble special court and Hon'ble Supreme Court. As result of same I had to frequently attend to these 5 I.T.A. No.1180/Mum/2015 matters, particularly because they were pertaining to sale of our residential house. Further, I also did not have sufficient staff to look after these proceedings before Ld. CIT (A). 8. Thus, applicant could not make compliances due to several reasons, which are summarised as under: a) No release of appeal filing fees by custodian. b) Attachment of assets including bank accounts. c) Non availability of counsels / Advocates to represent d) Other special court matters pending before Hon'ble Special Court at such point of time. e) No staff to get help for details gathering and attending to income tax proceedings as their services were dispensed with. 9. It is submitted that my above difficulties prevailing for very long period has been judicially noticed and considered by Hon'bte Tribunal in several matters. In this regard, reference may be drawn to order of Hon'ble Mumbai Tribunal vide in case of Ashwin S. Mehta v. DCIT & Ors. [ITA No. 7310/M/2003] dated 31 .03.2006, wherein all difficulties mentioned above are considered by Hon'ble Tribunal and delay in filling appeals was condoned. 10. Your Honours may also note that Hon'ble Supreme Court in case of Harshad Shantilal Mehta v. Custodian & Ors [231 ITR 871] has also taken judicial notice of peculiar conditions that would government notified person by observing that, "Then, on account of his property being attached, he may not be in position to deposit tax assessed or file appeals or further proceedings under relevant tax law which he could have otherwise done. ". 11. applicant also relies on decision of Hon'ble Supreme Court in case of Collector, Land Acquisition v. Mst. Katiji & Ors. (167 ITR 471) and N. Balakrishnan v. M. Krishnamoorthy (AIR 1998 S.C. 3222) wherein Hon'ble Court has held that liberal view shall be taken while deciding condonation of delay. 12. Further, in various cases of family members and other concerns, Hon'ble Tribunal has taken consistent view that delay shall be condoned in case of notified entities. Details of some of orders is mentioned as under: 6 I.T.A. No.1180/Mum/2015 Name of Case Delay condoned (No of Days) Rasita Mehta v. DOT [ ITA No. 36831M/2011] 11 days dated 28.11.2014 2 Rina Mehta v. DOT Et Ors [ITA No. 3047/M/2006] dated Upto 11.12.2007 [31 cases 1145 days Ashwin S. Mehta v. DOT [ITA No. 7310/Mum/2003] Upto dated 31.03.2006] [39_cases] 827days Growmore Research Assets Mgt Ltd. v. ACIT Upto [3576/Mum/2007] dated 17.12.07 [16 cases] 573 days 13. In view of aforesaid factual and legal position, it is humbly prayed that delay occurred in fitting of appeal before Ld. CIT(A) and subsequent non attendance was due to reasons beyond control of applicant. 6. It is further noted that aforesaid reasons have been supported with affidavit of assessee in which all these facts have been deposed on oath. Nothing wrong has been pointed out by Ld. Special Counsel of revenue in said affidavit and reasons explained by Ld. Counsel of assessee. It is noted that there was delay of 17 days in appeals for A.Ys 2004-05 to 2006-07 and delay of 34 days in appeal for A.Y. 2007-08. perusal of reasons explained by Ld. Counsel shows that there was sufficient cause which had led to delay in filing of appeals before Ld. CIT(A) and also caused improper representation before Ld.CIT(A). In our opinion, in given facts and circumstances of case doors of justice should not be closed to assessee without proper trial. final tax liability of assessee should not be determined without providing adequate opportunity of hearing. It is further noted that Tribunal in other cases of family has condoned delay, even for larger number of days. Further, Shri Dhaval Shah, Ld. Counsel of assessee gave undertaking before bench during course of hearing that if another opportunity is given, then proper representation shall be made before Ld. CIT(A). Thus, taking into account facts and circumstances of case, we condone delay of 17 7 I.T.A. No.1180/Mum/2015 days and 34 days in filing of appeals before Ld.CIT(A) and send these appeals back to file of Ld.CIT(A). assessee shall suo motto appear before Ld. CIT(A) on 17-10-2016. assessee shall also submit requisite written submissions and paper book and shall not take adjournment without valid reason. assessee shall also extend necessary cooperation to Ld. CIT(A) in expeditious disposal of these appeals. Ld. CIT(A) shall admit these appeals and dispose of same on merits. Ld. CIT(A) shall give adequate opportunity of hearing to assessee. 5. We have gone through observations of Tribunal and facts of year before us. It is noted that facts and circumstances and reasons involved in year before us are identical. Therefore, respectfully following orders of Tribunal, we send appeal before us to file of Ld. CIT(A) for adjudication on merits. Ld. CIT(A) as well as assessee shall follow our directions as have been given in our orders for earlier years. assessee shall suo motto appear before Ld. CIT(A) on 28-11-2016. Other directions shall remain same. 6. As result, this appeal may be treated as allowed, for statistical purpose. Order was pronounced in open court at conclusion of hearing. Sd/- Sd/- (SANJAY GARG) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dt : 17th October, 2016 Pk/- Copy to : 8 I.T.A. No.1180/Mum/2015 1. appellant 2. respondent 3. CIT(A) 4. CIT 5. Ld. Departmental Representative for Revenue, D-Bench (True copy) By order ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES Rina S Mehta v. ACIT, CC-23 (Now ACIT, CC-4(1), Mumbai