Ita/45/2017 Of M.faisal v. The Commission Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 2 DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 ITA NO. 45 OF 2017 AGAINST THE ORDER/JUDGMENT IN ITA 259/2013 OF I.T.A.TRIBUNAL,COCHIN BENCH, ERNAKULAM APPELLANT/APPELLANT: M.FAISALAGED 38 YEARSS/O. ABU HAJI, MULLAMBALATH HOUSE,KODUVALLY, CALICUT BY ADV SRI.SUNNY MATHEW ADV SONU AUGUSTINE RESPONDENT/RESPONDENT: THE COMMISSIONER OF INCOME TAX, CALICUT SC CHRISTOPHER ABRAHAM., THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA NO. 45 OF 2017 -2- J U D G M E N T S.V.Bhatti,J.Heard Adv.Sonu Augustin and Standing CounselMr.Christopher Abraham for parties. 2.The assessee is the appellant. The Income TaxAppeal is filed questioning the order of the Income TaxAppellate Tribunal dated 05.09.2013 in I.T.A No.259/Coch/2013.The disputes relate to the orders made by the Assessing Officerfor the assessment order 2008-09. The appeal is filed with adelay of 1282 days. The Standing Counsel Mr.ChristopherAbraham opposes the prayer for condonation of delay of 1282days. The circumstances necessary in this behalf are statedthus: ITA NO. 45 OF 2017 3.The assessee is the proprietor of a jewellery atKoduvally, Kozhikode. On 07.11.2007, a sum of Rs.33,00,000/-was seized by the Sulthan Bathery Police. The individuals fromwhom the said amount was claimed stated that the seizedamount belonged to the assessee. Upon seizure, statementswere recorded by the authorities, then the assessmentproceedings were initiated and finally, the Assessment orderunder Section 143(3) of the Income Tax Act, 1961 (for short, theAct) was made on 29.12.2010, determining the tax payable bythe assessee as Rs.12,17,384/-. The assessee filed the appealagainst the order dated 29.12.2010 before the Commissioner ofIncome Tax (Appeals) and the Appellate Authority vide orderdated 28.02.2013 dismissed the appeal. The assessee filed I.T.ANo.259/Coch/2013 before the Income Tax Appellate Tribunaland the Tribunal on the merits of the matter recorded thefollowing findings and dismissed the appeal: “We have considered the rival submissions on eitherside and also perused the material available on record.Though the assessee claims that he purchased goldornaments in the neighbourhood and sold the same inBangalore, there is no material to substantiate either thepurchase or sale of gold. However, from the assessmentorder it appears that the assessing officer called for thedetails form Dulhan Fine Jewellers, Bangalore and it wasfound that Dulhan Fine Jewellers purchased gold fromthe assessee for an amount of Rs.33,30,000/- and thepayment was made through cheque. When the paymentwas made by cheque to the assessee against sale ofJewellery, it is not known how the assessee was able toget Rs.30 lakhs in cash at Bangalore so as to bring thesame to Calicut through individual carriers. This fact isunexplained by the assessee, in view of thisunsatisfactory explanation offered by the assessee tobring Rs.30 lakhs from Bangalore to Calicut throughthree different individuals, this Tribunal is of theconsidered opinion that the assessing officer has rightlydisbelieved the statement made by the five persons, whoclaim themselves that they have advanced money forpurchase of jewelleries. As rightly submitted by theId.DR, there is no occasion for a middlemen to borrowmoney from assessee's own brother and loan the sameto the assessee for making investment in the goldjewellery. This kind of explanation clearly shows thatthe assessee is suppressing the material fact. Therefore,this Tribunal do not find any infirmity in the order ofthe lower authority. Accordingly, the same isconfirmed.” 4.The assessee was subjected to the penalty 4.The assessee was subjected to the penalty proceedings under Section 271(1)(c) of the Act and on ITA NO. 45 OF 2017 30.09.2013 the penalty order was levied on the assessee. Theassessee filed appeal before the Commissioner of Income Tax(Appeals) and on 04.05.2016 the Commissioner of Income Tax(Appeals) set aside the order dated 30.09.2013. The instantappeal before this Court was filed on 24.07.2017. Hence thedelay of 1282 days. 5.Adv.Sonu Augustin submits that the order ofCommissioner of Income Tax (Appeals) dated 04.05.2016 is apointer to the case stated by the assessee and which was notproperly understood by the Authorities while passing theorder under Section 143(3) of the Act. He invites our attentionto the affidavit of assessee filed for condoning the delay whichis to the effect that the assessee could raise substantialquestions of law only by taking note of the findings recordedby the Commissioner of Income Tax (Appeals) in the penaltyorder dated 04.05.2016. The affidavit as pointed out by ITA NO. 45 OF 2017 Mr.Christopher Abraham is with sufficient over-writings andthat this Court is concerned with the cause shown by theassessee for filing the appeal with a delay of 1282 days. Thereasons set out are that the assessee waited till a finding isrecorded in the penalty proceedings by the Commissioner andchosen to review that remedy of appeal. The order of theCommissioner is dated 04.05.2016. The appeal is filed on24.07.2021, merely after one year and two months from thedate of order by Commissioner of Income Tax (Appeals) inpenalty proceedings. We are of the view that the assessee if desirous toquestion the order of the Income Tax Appellate Tribunal dated05.09.2013, the assessee is expected to act duly and diligent.The assessee waits firstly, to see the outcome of the penaltyproceedings and secondly, by treating the findings recorded inthe penalty proceedings, intends to challenge the findings ITA NO. 45 OF 2017 recorded in the assessment proceedings. We are of the viewthat the assessee is not duly and diligently prosecuting the lisand cause shown does not satisfy even a liberal understandingof reason and no sufficient cause is not made out forcondoning the delay of 1282 days. Hence the prayer tocondone the delay is rejected. Consequently, Income TaxAppeal is dismissed. No order as to costs. Sd/-S.V.BHATTIJUDGE Sd/-VIJU ABRAHAMJUDGE JS ITA NO. 45 OF 2017 -8- APPENDIX APPELLANT'S ANNEXURES: ANNEXURE AA TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2010 ANNEXURE B A TRUE COPY OF THE ORDER No.ITA-74/R2/CIT/CLT/2010-11 DATED 28.2.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ANNEXURE C A TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 5.9.2013 ANNEXURE D A TRUE COPY OF THE ORDER No.ITA 265/R2/CIT/CLT/2013-14 BY THE COMMISSIONER OFINCOME TAX (APPEALS), KOZHIKODE