Jayesh N. Mehta Huf, Mumbai vs Assessee

ी िवजय पाल राव, याियक सद य, एवं ी डी. क णाकर राव, लेखा सद य के सम । BEFORE SHRI VIJAY PAL RAO , JM AND SHRI D. KARUNAKARA RAO, AM

आयकर अपील सं./I.T.A. No.3074/Mum/2013 ( िनधा रण वष / Assessment Year : 2009-10 )

Shri Jayesh N. Meh ta बनाम/ Income tax officer HUF Vs. Ward-25(1)(1) A/3, Ad itya Park, C. S. Mumbai.

Road, Dahisar (E) Mumbai-400 068.

था यी ले खा सं . / जी आ इ आ र सं ./PAN/GIR No. : AACHJ 8815 Q (अपीलाथ /Appellant) ... ( यथ / Respondent)

आयकर अपील सं./I.T.A. No.3076/M um/2013 ( िनधा रण वष / Assessment Year : 2009-10 )

Shri Jayesh N. Meh ta बनाम/ Income tax officer Prop. S.K. S. Lab Chem Vs. Ward-25(1)(1) Corporation Mumbai.

A/3, Ad itya Park, C. S. Road, Dahisar (E) Mumbai-400 068.

था यी ले खा सं . / जी आ इ आ र सं ./PAN/GIR No. : AAUPM 8476 G (अपीलाथ /Appellant) ... ( यथ / Respondent)

अपीलाथ ओर से / Appellant by : None यथ क ओर से/Respondent by : Shri Akhilendra Yadav

सुनवाई क तारीख / Date of Hearing : 03/02/2015 घोषणा क तारीख /Date of Pronouncement : 13/02/2015

आदेश / O R D E R PER BENCH:

These two appeals by two separate assessee's one is an individual and another is HUF for the same assessment year 2009-10 are directed against two separate orders of CIT(A) both dated 18/01/13 . Identical grounds have been raised in both the appeals. The grievance of the assessess' in these two appeals is dismissing the appeals of the 2

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assessees' in limine for non payment of appeal fee. None has appeared on behalf of the assessee despite the service of notice sent through RPAD as per acknowledgement on record. We further note that none appeared before the CIT(A) and the appeals were dismissed as not admitted for want of appeal fee. Accordingly, it appears that the assessees are not interested in prosecuting the present appeals and hence we propose to dispose these appeals exparte.

2. We have heard the ld. DR and carefully perused the impugned orders. The CIT(A) has recorded in para-4 of the impugned order that various notices dated 7/5/2012, 30/05/2012, 28/08/2012 and 13/12/2012 were issued to the assessee in respect of the date of hearing but none appeared on behalf of the assessee to explain the case. CIT(A) has noted in para-5 that the assessee has not attached any evidence for payment of fee regarding filing of appeal. Accordingly the notice was issued to the assessee vide letter dated 17/12/2012 to furnish the evidence of having paid appeal fee/challan. The CIT(A) further noted that there was no compliance by the assessee. Accordingly the CIT(A) has rejected the appeal of the assessee as not admitted for want of the appeal fee as under :-

"7. I have considered the letter dated 01-01-2013 in respect of non furnishing of challan of Rs.1,000/- towards filing of appeal. The appellant has not submitted the proper evidence regarding appeal filing fees of Rs.1000/-. The appellant has not made any submission addressing to this office for giving any reason as to why the challan in original were not enclosed.

In this regard relevant para of sec. 249(1) of I.T.Act,1961 is being reproduced -

"Form of appeal and limitation.

249. (1) Every appeal under this Chapter shall be in the prescribed form" and shall be verified in the prescribed manner 85 [and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of ) October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of, -

(i) where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is more than one hundred thousand rupees or less, two hundred fifty rupees;

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(ii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, five hundred rupees;

iii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one thousand rupees;]

(iv) where the subject matter of an appeal is not covered under clauses (i),

(ii) and (iii), two hundred fifty rupees.]

(2) The appeal shall be presented within thirty days of the following date, that is to say,--

[(a) where the appeal is under section 248, the date of payment of the tax, or]

(b) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty:

[Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, or]

(c) in any other case, the date on which intimation of the order sought to be appealed against is served.

[(2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October, 1998 but before the 1st day of june, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000.]

(3) The [***] '[Commissioner (Appeals)] may admit an appeal after the exp i ra tio n o f t he s a id per iod i f h e is s at is f ied t h at t h e a pp ell a nt h a d sufficient cause for not presenting it within that period.

[(4) No appeaI 9 - under this Chapter shall be admitted unless at the time of filing of the appeal,--

(a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or

(b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him:

Provided that, [in a case falling under clause (b) and] on an application made by the appellant in this behalf, the {* * *] [Commissioner (Appeals)] may, for 4

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any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of [that clause].]"

After considering the above provisions of law as well as the attitude of the appellant showing continuous non compliance and not furnishing of evidence of appeal fees, the appeal cannot be admitted."

2.1 In the ground raised before this Tribunal the assessee has not controverted the fact recorded by the CIT(A) about non-payment of appeal fee as recorded by CIT(A). Even the assessee has not filed any evidence before us to show the payment of appeal fee for filing the appeal before CIT(A). None has appeared on behalf of the assessee to explain this fact that the appeal fee was paid by the assessee for filing the appeal before CIT(A). We further note that on 28/7/2014 as well as on 17/11/2014 none appeared on behalf of the assessee and accordingly the Tribunal ordered for the notice to the assessee on both occasions. Despite notice to the assessee, the assessee chose not to appear when this case was called for hearing. In the absence of any fact pointed out by the assessee in these appeals as well as non production of any evidence to show the payment of appeal fee in respect of appeal filed before CIT(A) we do not find any error or illegality in the impugned order of CIT(A) for declining to admit the appeals of the assessee .

3. In the result, both the appeals of the assessee are dismissed.

Order pronounced in the open court on 13th February, 2015. आदेश क घोषणा खुले यायालय म! "दनांकः 13/2/2015 को क गई ।

Sd/- Sd/- (D. Karunakara Rao) (Vijay Pal Rao ) लेखा सद य / ACCOUNTANT MEMBER याियक सद य / JUDICIAL MEMBER मुंबई Mumbai; "दनांक Dated 13/02/2015 व.िन.स./ Jv, Sr. PS 5

ITA No.3074/ & 3076/M/13

आदेश क ितिलिप अ िे षत/Copy षत of the Order forwarded to : 1. अपीलाथ) / The Appellant 2. *+यथ) / The Respondent. 3. आयकर आयु,(अपील) / The CIT(A)- 4. आयकर आयु, / CIT

5. िवभागीय *ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड0 फाईल / Guard file.

आदेशानुसार/ ार BY ORDER,

स+यािपत *ित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai.