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Shri Mihir H. Bilakhia A-502, Gods Grace, Adarsh Dugdhalaya Colony, Off Marve Rd. Malad (W), Mumbai 400064 Vs. Income Tax Officer-25(3)(1) Bandra Kurla Complex Bandra (E), Mumbai
April, 09th 2015
                          "F" Bench, Mumbai

                Before Shri D. Manmohan, Vice President
               and Shri B.R. Baskaran, Accountant Member

                           MA No. 372/Mum/2014
                   (Arising out of ITA No. 3828/Mum/2009
                          (Assessment Year: 2005-06)

     Shri Mihir H. Bilakhia                Income Tax Officer-25(3)(1)
     A-502, Gods Grace, Adarsh             Bandra Kurla Complex
     Dugdhalaya Colony, Off Marve Rd.      Bandra (E), Mumbai
     Malad (W), Mumbai 400064
                             PAN - AEXPB1087P
                 Applicant                        Respondent

                    Applicant by:      Shri S.R. Khanna
                    Respondent by:     Shri Jeetendra Kumar

                    Date of Hearing:       27.03.2015
                    Date of Pronouncement: 08.04.2015


Per D. Manmohan, V.P.

      By this application the assessee seeks recall of the order dated
31.07.2014 passed by ITAT "F" Bench, Mumbai on the ground that the
Commissioner of Income Tax (Appeals) overlooked the confirmation provided
by the party with whom the assessee had business transaction and further
adding the entire sales proceed of equity shares as capital gain without
deducting the cost of equity shares.

2.     With regard to the reasons for restoration it was stated that the father
of the assessee was suffering from Parkinson disease and memory loss on
account of which the assessee was occupied with the medical treatment of
his father in Hinduja Hospital and the learned Chartered Accountant had
other matters to be attended to in other Bench of the Tribunal on that day
and hence he could not take adjournment, which resulted in exparte
disposal of the appeal.

3.     It deserves to be noticed that we are concerned with A.Y. 2005-06 and
on account of non-cooperation on the part of the assessee, i.e. on account of
                                      2                  MA No. 372/Mum/2014
                                                           Shri Mihir H. Bilakhia

non-furnishing of the information required by the AO, the AO had no other
alternative but to conclude that the deposits made in the bank account,
amounting to `17,02,748/-, has to be treated as assessee's income from
undisclosed source and accordingly added the same to the total income
disclosed by the assessee. Even before the first Appellate Authority the
assessee could not prove its case and in fact the assessee went on changing
his stand from time to time; it was stated that the assessee does not
maintain books of account whereas the capital gain in the Balance Sheet
shows specific figures, which is not possible to be recollected merely on the
basis of memory. The odd figures, in particular in the financial statements,
led the learned CIT(A) to conclude that the new stand taken by the assessee
is not true. He also noticed that the Standard & Chartered Bank account
was in his name and it is not a joint account in which event there is no
question of the bank account being operated by his father, which was
admitted by the assessee himself while submitting the revised statement
through letter dated 22.11.2007. He also observed that the assessee failed to
give the names and addresses of the customers and copies of their
confirmations. He thus confirmed the action of the AO.

4.    Though the assessee preferred an appeal before the Tribunal on
12.06.2009, when the case was listed for hearing none appeared on behalf of
the assessee and hence the matter was disposed of exparte, qua assessee,
on 14.05.2010. At that stage assessee filed a petition under section 254(2) of
the Act seeking recall of the exparte order but even after recall the assessee
did not choose to appear on the date fixed for hearing and thus the appeal
was again dismissed for non-appearance on 10.10.2011. In a second
miscellaneous application assessee again made a request that there was
boanfide reason for non-appearance and requested for one more opportunity
and accordingly the Bench considered the request and recalled the exparte
order and posted the case for fresh hearing. Even at that stage no one
appeared on behalf of the assessee. Thus, on 31.07.2014 the petition was
disposed of exparte, qua the assessee, wherein the Bench discussed the
issue on merits and noticed that the order passed by the CIT(A) is in
accordance with law and thus dismissed the appeal filed by the assessee.
                                      3                   MA No. 372/Mum/2014
                                                            Shri Mihir H. Bilakhia

Against the order dated 31.07.2014 the assessee filed a miscellaneous
application under section 254(2) of the Act, which is the third miscellaneous
application in the same appeal. Here also the reasons are vague. Earlier the
case of the assessee was that notice was not served upon on him and he
came to know about the exparte disposal only when the recovery notice was
served by the AO. In the second miscellaneous application it was submitted
that Shri Harshad M. Sakhia, Chartered Accountant was pre-occupied with
another matter in other Bench and as a result he could not manage to
appear in this case. Mr. Harshad M. Sakhia is a practising Chartered
Accountant and because he owns the default of non-appearance one more
opportunity was given but even in the third round the assessee comes out
with the same plea that the Chartered Accountant had another matter to
attend with other Bench of the Tribunal and hence could not reach in time
which shows lack of any respect on the part of the Chartered Accountant in
a matter which was twice dismissed and coming up for the third time
spanning over for more than six years. Under these circumstances we are
unable to take a lenient view on this matter.       In fact in this round of
litigation the assessee has not furnished any proof to show that the counsel
engaged was busy in other court. Even if it is proved, the burden is upon the
Chartered Accountant for not being diligent in discharge of his duties and
assessee could have sued him in an appropriate forum instead of seeking
indulgence of this court. At any rate, neither an affidavit was filed nor any
material was shown in support of his contention that non-appearance was
for genuine reasons and not attributable to the negligence on the part of the
assessee or his Chartered Accountant. Under these circumstances we do not
find any reason to recall the order dated 31.07.2014 and hence the
miscellaneous application filed by the assessee is rejected.

Order pronounced in the open court on 8th April, 2015.

                Sd/-                                     Sd/-
          (B.R. Baskaran)                          (D. Manmohan)
        Accountant Member                           Vice President

Mumbai, Dated: 8th April, 2015
                                       4                   MA No. 372/Mum/2014
                                                             Shri Mihir H. Bilakhia

Copy to:

   1.   The   Appellant
   2.   The   Respondent
   3.   The   CIT(A) ­ 35, Mumbai
   4.   The   CIT­ XXV, Mumbai City
   5.   The   DR, "F" Bench, ITAT, Mumbai

                                                       By Order

//True Copy//
                                                    Assistant Registrar
                                            ITAT, Mumbai Benches, Mumbai
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