Panchi Bibi Wakf Estate,Feroze Belal(Mutwalli), Kolkata V. CIT(A)-XIV, Kolkata, Kolkata

ITA 1193/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75079 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 14-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

I.T.A. NOS. 1193-1 198/KOL./2012 ASSESSMENT YEAR: -2003-04 TO 2008-09 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NOS. 1193, 1194, 1195, 1196, 1197 & 1198/KOL . / 2012 ASSESSMENT YEARS : 2003-2004 TO 2008-2009 PANCHI BIBI WAKF ESTATE,...................... .....APPELLANT FEROZE BELAL (MUTWALLI), 54/2, RAFI AHMED KIDWAI ROAD, 6 TH FLOOR, P.O. & P.S.- PARK STREET, KOLKATA-700 016 [PAN : AAATP 8292 K] -VS.- DEPUTY DIRECTOR OF INCOME TAX (E)-II,............. .RESPONDENT KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016 APPEARANCES BY: SHRI RAJENDRANATH BARIK, ADVOCATE, FOR THE ASSESSEE SHRI A. K. MAITRA, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MARCH 03, 2014 DATE OF PRONOUNCING THE ORDER : MARCH 03, 2014 O R D E R PER GEORGE MATHAN : THESE ARE SIX APPEALS FILED BY THE ASSESSEE AGAINS T THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA I N APPEAL NOS. 377 TO 382/CIT(A)-XIV/K OL /10-11 DATED 29.06.2012 FOR THE ASSESSMENT YEARS 2003-04 TO 2008-09. 2. SHRI RAJENDRA NATH BARIK, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE AND SHRI A. K. MAITRA, JCIT, SR. D.R. REPR ESENTED ON BEHALF OF THE REVENUE. I.T.A. NOS. 1193-1 198/KOL./2012 ASSESSMENT YEAR: -2003-04 TO 2008-09 PAGE 2 OF 5 3. AT THE BEGINNING OF THE BENCH, LD. ADVOCATE ON B EHALF OF THE ASSESSEE REQUESTED FOR ADJOURNMENT THROUGH A LETTER SIGNED BY ONE OF THE MUTWALLIS SHRI FEROZE BELAL. IN THE ADJOURNMENT REQ UEST, THE ASSESSEE IS REQUESTING FOR AN ADJOURNMENT SINE DIE. HOWEVER, BE FORE THE BENCH LD. COUNSEL, WHO HAS APPEARED, REQUESTED THAT ADJOURNME NT MAY BE GRANTED TILL 5 TH OF MARCH, 2014. LD. COUNSEL ALSO BROUGHT TO OUR AT TENTION THAT THE APPEAL IS POSTED AS PER THE DIRECTIONS OF THE HONB LE JURISDICTIONAL HIGH COURT OF KOLKATA AS PER THE WRIT ORDER IN G.A. NO. 663 OF 2013 IN WRIT PETITION NO. 1007 OF 2012 DATED 28.01.2014 AND THE COPY OF WHICH WAS SERVED ON THE TRIBUNAL ON 24.02.2014 THROUGH A LETT ER FROM ONE SHRI FEROZE BELAL. 4. AFTER PERUSAL OF THE ORDER OF THE HONBLE JURISD ICTIONAL HIGH COURT IT WAS INFORMED TO THE LD. COUNSEL THAT THE HONBLE HI GH COURT HAD DIRECTED EARLY DISPOSAL OF THE APPEALS WITHIN THREE WEEKS FR OM THE DATE OF COMMUNICATION OF THE ORDER AND AFTER GIVING OPPORTU NITY OF HEARING TO THE PETITIONERS, BY PREPONING THE DATE. HONBLE HIGH CO URT HAS ALSO DIRECTED THAT THE HONBLE HIGH COURT IS TO BE INFORMED ON 6 TH OF MARCH, 2014 AS TO THE FATE OF THESE APPEALS. IT WAS THEN INFORMED TO THE LD. COUNSEL WHO APPEARED THAT ADJOURNMENT OF ALL THESE SIX APPEALS TO 5 TH OF MARCH, 2014 WOULD BE PRACTICALLY DIFFICULT IN SO FAR AS THERE A RE ALREADY A NUMBER OF OTHER APPEALS POSTED ON THAT DATE AND THE TRIBUNAL WOULD NOT BE IN A POSITION TO PASS ORDERS ON THE IMPUGNED APPEALS WIT HIN ONE DAY. HE WAS THEN REQUESTED TO SHOW HIS VAKALATNAMA IN RESPECT O F THESE APPEALS TO APPEAR BEFORE THE TRIBUNAL. HE MENTIONED THAT HE DI D NOT HAVE THE VAKALATNAMA. DESPITE THIS, THIS TRIBUNAL REQUESTED THE LD. COUNSEL TO REPRESENT HIS CASE ON MERITS IF HE SO DESIRES. AT T HIS POINT, LD. COUNSEL SAID YOU MAY PASS THE ORDER ON MERITS. THIS BEING SO, THESE APPEALS ARE BEING DISPOSED OF ON MERITS. I.T.A. NOS. 1193-1 198/KOL./2012 ASSESSMENT YEAR: -2003-04 TO 2008-09 PAGE 3 OF 5 5. IN REPLY, LD. D.R. SUBMITTED THAT SINE DIE ADJOU RNMENT HAS BEEN SOUGHT AND THERE IS A DIRECTION FROM THE HONBLE HI GH COURT, THE SAME SHOULD BE DISPOSED OF. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE PR AYER FOR ADJOURNMENT SOUGHT BY THE ASSESSEE IS DENIED. ALL T HE APPEALS OF THE ASSESSEE ARE BEING DISPOSED OF AS PER THE DIRECTION S OF THE HONBLE JURISDICTIONAL HIGH COURT, AND ALSO CONSIDERING THE PLEA OF LD. COUNSEL TO DISPOSE OF THE APPEALS ON MERITS, IF ADJOURNMENT SO UGHT BY HIM WAS NOT GRANTED. A PERUSAL OF THE ASSESSMENT ORDER IN THE P RESENT CASE MORE SO FOR THE ASSESSMENT YEAR 2003-04 CLEARLY SHOWS THAT THE ASSESSING OFFICER HAS BROUGHT OUT THE ISSUE OF THE MUTWALLI ALLOWANCE BEING 10% OF THE GROSS RECEIPTS OF THE ESTATES AND THAT THE THREE MU TWALLIS ARE INTERESTED PERSONS AND CONSEQUENTLY THE PAYMENT TO THE MUTWALL IS IS IN VIOLATION OF THE PROVISIONS OF SECTION 13(3) OF THE ACT. THE ASS ESSING OFFICER HAS ALSO CATEGORICALLY BROUGHT OUT THAT THE PROPERTY BEING SIX STORIED BUILDING BEARING NUMBER 54/2, RAFI AHMED KIDWAI ROAD, KOLKAT A WAS OWNED BY THE ASSESSEE WAKF AND THE SIXTH FLOOR OF THE SAID B UILDING WAS USED FOR THE RESIDENTIAL PURPOSE OF THE MUTWALLIS, WHO WERE DIRE CT DESCENDANTS OF THE AUTHOR OF THE TRUST. THE ASSESSING OFFICER HAS ALSO BROUGHT OUT THE DETAILS OF THE RENT RECEIPTS IN RESPECT OF THE VARIOUS FLOO RS OF THE SAID BUILDING AND HAVE ALSO SHOWN THAT NO RENT HAVING BEEN PAID B Y THE MUTWALLIS, WHICH IS FAIR AND REASONABLE, THERE IS A CLEAR VIOL ATION OF THE PROVISIONS OF SECTION 13 OF THE INCOME TAX ACT. CONSEQUENTLY HE H AS REWORKED THE TOTAL INCOME OF THE ASSESSEE. A PERUSAL OF THE ORDER OF T HE LD. CIT(APPEALS) IN THE PRESENT CASE ALSO CLEARLY SHOWS THAT EVEN BEFOR E THE LD. CIT(APPEALS) ADJOURNMENT HAD BEEN SOUGHT REPEATEDLY AND THE LD. CIT(APPEALS) LEFT WITH NO OTHER ALTERNATIVE HAS DECIDED THE APPEALS O N MERITS. EVEN BEFORE US, NO SPECIFIC SUBMISSION TO DISLODGE THE FINDING OF FACTS AS HAS BEEN BROUGHT OUT BY THE ASSESSING OFFICER HAS BEEN MADE EVEN BEFORE US. I.T.A. NOS. 1193-1 198/KOL./2012 ASSESSMENT YEAR: -2003-04 TO 2008-09 PAGE 4 OF 5 7. EVEN THOUGH THERE ARE DIRECTIONS OF THE HONBLE JURISDICTIONAL HIGH COURT FOR EARLY DISPOSAL OF THESE APPEALS, ADJOURNM ENT ARE BEING SOUGHT. THE PRESENT ADJOURNMENT IS ALSO ON THE GROUND THAT ONE OF THE ADVOCATES THAT THE ASSESSEE WISHES TO ENGAGE, IS PRE-OCCUPIED IN THE SUPREME COURT OF INDIA. HOWEVER, A PERUSAL OF THE ORDER OF THE HO NBLE JURISDICTIONAL HIGH COURT SHOWS THAT IT HAS BEEN PRAYED BEFORE THE HONBLE HIGH COURT THAT DESPITE ORDERS FOR EARLY DISPOSAL OF THE APPEA LS PASSED BY THE HONBLE HIGH COURT ADJOURNMENTS ARE SOUGHT BY THE A SSESSEE AND THE ASSESSEE HAS ASSURED THE HONBLE COURT THAT THEY WO ULD COOPERATE WITH THE TRIBUNAL AND SHALL NOT SEEK ANY UNNECESSARY ADJ OURNMENT. THIS PRAYER HAVING BEEN MADE BEFORE THE HONBLE HIGH COU RT, AGAIN, HAS BEEN VIOLATED BY SEEKING ADJOURNMENT. SECTION 13(2)(B) O F THE ACT, IS A SPECIFIC PROVISION WHICH APPLIES WHEN PROPERTY OF A TRUST IS USED BY TRUSTEES AND/OR OTHER INTERESTED PERSONS, WHICH RESULT IN AN UNJUST ENRICHMENT OF SUCH PERSONS TO THE DEPRIVATION OF THE TRUST. WE AR E ALIVE TO THE FACT THAT MUTWALLIS WERE APPOINTED BY HONBLE JURISDICTIONAL HIGH COURT. BUT THIS WILL NOT IN OUR OPINION OUST THE APPLICATION OF SEC TION 13 OF THE ACT. VIOLATION OF SECTION 13 HAS BEEN CLEARLY BROUGHT OU T BY THE LOWER AUTHORITIES. SUCH VIOLATION HAVING NOT BEEN CORRECT ED NOR SHOWN TO BE WRONGLY INVOKED, NOR THE FACTS AS ENUMERATED BY THE LD. A.O. HAVING NOT BEEN SHOWN TO BE WRONG OR PERVERSE, THE ADDITION AS MADE BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE LD. CIT(A PPEALS) IS FOUND TO BE ON THE RIGHT FOOTING AND DOES NOT CALL FOR ANY INTE RFERENCE. 8. IN THE RESULT, APPEALS FILED BY THE ASSESSEE STA ND DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD DAY OF MARCH, 2014. SD/- SD/- ABRAHAM P. GEORGE GEORGE MATHA N (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 3 RD DAY OF MARCH, 2014 I.T.A. NOS. 1193-1 198/KOL./2012 ASSESSMENT YEAR: -2003-04 TO 2008-09 PAGE 5 OF 5 COPIES TO : (1) PANCHI BIBI WAKF ESTATE, FEROZE BELAL (MUTWALLI), 54/2, RAFI AHMED KIDWAI ROAD, 6 TH FLOOR, P.O. & P.S.- PARK STREET, KOLKATA-700 016 (2) DEPUTY DIRECTOR OF INCOME TAX (E)-II, KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.