ACIT 10(1), MUMBAI V. LANDMARK LTD, MUMBAI

ITA 1347/MUM/2013

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 101341 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.1347/M/2013 ASSESSMENT YEAR: 2009-10 DCIT -10(1), 455, 4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 VS. M/S. LANDMARK LTD., ENTERPRISE CENTRE, 2 ND FLOOR, 17/5, OFF NEHRU ROAD, VILE PARLE (E), MUMBAI 400 099 PAN: AABCL1748E (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI A.B. KOLI, D.R. DATE OF HEARING : 25.08.2016 DATE OF PRONOUNCEMENT : 25.08.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [ HEREINAFTER REFERRED TO AS THE CIT (A)] DATED 09.11.2012. 2. WE HAVE NOTICED FROM THE FILE THAT THIS APPEAL W AS FILED BY THE DEPARTMENT ON 18.02.13 BUT TILL DATE NO SERVICE OF THE RESPONDENT-ASSESSEE HAS BEEN AFFECTED. MANY A TIMES IT HAS BEEN DIRECTED B Y THIS TRIBUNAL TO EFFECT THE SERVICE OF THE RESPONDENT THROUGH DEPARTMENT. ON 1 8.05.15 AN ADJOURNMENT WAS SOUGHT BY THE LD. D.R. STATING THAT DUE TO OVER LOAD OF WORK AND NON AVAILABILITY OF ASSESSMENT OF RECORDS HE COULD NOT PROPERLY PREPARE IN THIS CASE. ON THE SAID DATE I.E. ON 18.05.15 IT WAS NOTICED BY THE TRIBUNAL THAT THE SERVICE OF THE ASSESSEE WAS ALSO NOT EFFECTED. HENCE, ON T HE REQUEST OF THE LD. D.R., THE MATTER WAS ADJOURNED AND IT WAS DIRECTED THAT T HE NOTICE BE ISSUED TO THE RESPONDENT THROUGH DEPARTMENT AND THE MATTER WAS AD JOURNED FOR 28.10.15. ITA NO.1347/M/2013 M/S. LANDMARK LTD. 2 THEN AGAIN ON 28.10.15 IT WAS NOTICED THAT THE NOTI CE WAS NOT SERVED BY THE DEPARTMENT ON THE ASSESSEE. THE DEPARTMENT WAS DIR ECTED TO PRODUCE THE EVIDENCE OF SERVICE OF NOTICE TO THE RESPONDENT. D IRECTIONS FOR ISSUANCE OF FRESH NOTICE WERE ALSO ISSUED. THE MATTER WAS ADJO URNED FOR 18.05.16. HOWEVER, ON 18.05.16, THE LD. D.R. COULD NOT PRODUC E EVIDENCE REGARDING THE SERVICE OF NOTICE UPON THE RESPONDENT. IT WAS NOTI CED BY THE TRIBUNAL THAT THE NOTICE HAD REMAINED UNSERVED WHEN SENT BY THE TRIBU NAL AT THE ADDRESS MENTIONED IN FORM 36 WHICH IS THE PRESCRIBED FORM O F APPEAL AS PROVIDED UNDER RULE 47 OF THE INCOME TAX RULES, 1962 FOR FILING AP PEAL TO THIS TRIBUNAL. THE TRIBUNAL, THEREFORE, DIRECTED THE DEPARTMENT TO FIL E A REVISED FORM 36 PLACING CORRECT ADDRESS OF THE RESPONDENT-ASSESSEE ON RECOR D AND ALSO TO FILE EVIDENCE OF SERVICE OF NOTICE OF HEARING FOR THE NEXT DATE O F HEARING. CASE WAS ADJOURNED TO 16.08.16. HOWEVER, ON 16.08.16 THE LD . D.R. AGAIN SOUGHT TIME STATING THAT HE HAD ALREADY WRITTEN LETTER TO THE C ONCERNED ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO)/DCIT, CIRCLE-2( 3)(1), MUMBAI. AT THE REQUEST OF THE LD. D.R. THE CASE WAS AGAIN ADJOURNE D FOR 24.08.16. HOWEVER, ON 24.08.16, THE LD. D.R. AGAIN INFORMED US THAT TH E AO HAS NOT ACTED DESPITE HIS REPEATEDLY WRITING LETTERS TO THE CONCERNED AO AND DESPITE FULLY CONVEYING THE DIRECTIONS OF THE TRIBUNAL TO THE CONCERNED AO. AT THIS, THE TRIBUNAL DIRECTED THE CONCERNED AO TO APPEAR PERSONALLY SO T HAT IT MAY BE GATHERED WHETHER THE CONCERNED ACIT/DEPARTMENT IS REALLY INT ERESTED IN PURSUING THE PRESENT APPEAL AND AS TO WHY THE TIME AND AGAIN DIR ECTIONS OF THE TRIBUNAL HAVE NOT BEEN COMPLIED WITH; AND THE CASE WAS ADJOURNED TO 25.08.16. ON 25.08.16, THE CONCERNED AO APPEARED BUT HE HAD NOT PLAUSIBLE EXPLANATION TO OFFER. 3. WE HAVE GONE THROUGH THE LETTERS PLACED BY THE L D. D.R. ON THE FILE. WE FIND EARLIER THE LD. D.R. HAD ADDRESSED/SENT A LETT ER DATED 22.06.16 TO THE CONCERNED DCIT, CIRCLE-2(3)(1), MUMBAI ALONG WITH E NCLOSURES REQUESTING THE CONCERNED DCIT TO FILE A REVISED FORM NO.35 (WRONGL Y WRITTEN INSTEAD OF FORM NO.36) WITH CORRECT ADDRESS OF THE ASSESSEE AS THE ASSESSEE HAD MERGED WITH ITA NO.1347/M/2013 M/S. LANDMARK LTD. 3 M/S. TRENT LTD. HAVING JURISDICTION IN HIS CIRCLE. THE REFERENCE OF THE ABOVE STATED LETTER DATED 22.06.16 FINDS MENTION IN THE L ETTER DATED 12.08.16 OF THE D.R./JOINT COMMISSIONER OF INCOME TAX (SR. A.R.). THEREAFTER, VIDE LETTER DATED 12.08.16 THE CONCERNED DCIT, CIRCLE-2(3)(1) W AS AGAIN REQUESTED TO FILE THE REVISED FORM ON THAT DAY ITSELF AS THE CASE WAS FIXED FOR NEXT WORKING DAY I.E. 16.08.16. BUT NO ACTION WAS TAKEN BY THE CONC ERNED DCIT. AS ON 16.08.16, THE CASE WAS ADJOURNED TO 24.08.16, THE C ONCERNED D.R. (SENIOR A.R.) OF THE DEPARTMENT AGAIN SENT A LETTER DATED 1 6.08.16 TO THE CONCERNED DCIT, CIRCLE-2(3)(1) STATING THAT THE CASE HAD BEEN ADJOURNED TO 24.08.16 AT THE DEPARTMENTS REQUEST. HE AGAIN REQUESTED THE C ONCERNED DCIT TO FILE REVISED FORM NO.36 WITH CORRECT ADDRESS OF THE ASSE SSEE AS REQUESTED VIDE LETTER DATED 12.08.16. HOWEVER, THERE WAS NO ACTION ON TH E PART OF THE DCIT. AS OBSERVED ABOVE, ON 24.08.16 THE CONCERNED D.R. HAS SHOWN HIS HELPLESSNESS AS THE CONCERNED AO/DCIT HAD IGNORED ALL HIS REQUESTS AND NO COMMUNICATION/REPLY WAS RECEIVED FROM THE CONCERNED AO/DCIT. IN VIEW OF THE ABOVE EVENTS, THE CONCERNED AO WAS DIRECTED TO APPEAR PERSONALLY AND EXPLAIN HIS POSITION. THE CONCERNED D.R. AGAIN WRO TE A LETTER DATED 24.08.16 TO THE CONCERNED AO/ DCIT, CIRCLE-2(3)(1), MUMBAI THAT THE MATTER HAS BEEN ADJOURNED THAT HE SHOULD COME PRESENT BEFORE THE TR IBUNAL ON 25.08.16 ALONG WITH ASSESSMENT RECORDS AND MODIFIED FORM NO.36. 4. HOWEVER, TODAY I.E. ON 25.08.16, THE LD. D.R. HA S FILED A LETTER THAT HE HAD AGAIN INFORMED THE CONCERNED AO TO FILE REVISED FORM NO.36. THE CONCERNED AO HAS ALSO COME PRESENT. WHEN ASKED WHY HE DID NOT ACT UPON THE REPEATED DIRECTIONS OF THE TRIBUNAL, HE HAD NO EXPLANATION TO OFFER. HE, HOWEVER, TRIED TO EXPLAIN THAT HE WAS NOT THE CONCE RNED AO. HOWEVER, WHEN A SPECIFIC QUERY WAS RAISED BY THIS TRIBUNAL TO THE C ONCERNED D.R. AS WELL AS THE AO PRESENT IN COURT, BOTH ADMITTED THAT THE AO SHRI MADHUKAR A.V.S., ACIT, CIRCLE-2(3)(1), MUMBAI WHO WAS PRESENT IN COURT WAS THE CONCERNED AO OF THE ASSESSEE. A COPY OF THE LETTER ADDRESSED BY THE SA ID ACIT, 2(3)(1) TO THE ITA NO.1347/M/2013 M/S. LANDMARK LTD. 4 CONCERNED D.R. DATED 24.08.16 HAS ALSO BEEN PLACED ON FILE WHEREIN THE CONCERNED AO HAS MENTIONED THAT THE CASE RECORDS OF THE PRESENT ASSESSEE WERE LYING WITH ACIT 14(2)(1), MUMBAI. IT HAS ALSO BEEN MENTIONED THAT THE SAID ACIT 14(2)(1), MUMBAI HAD WRITTEN TO THE AO IN THIS CASE I.E. ACIT 2(3)(1) THAT THE ASSESSEE COMPANY HAS BEEN MERGED WITH M/S. TRENT LTD. IT HAS ALSO BEEN MENTIONED THAT THOUGH THE CASE RECORDS FOR A.Y . 2013-14 OF M/S. TRENT LTD. HAVE BEEN RECEIVED IN HIS OFFICE [OF ACIT-2(3) (1)] BUT THERE WAS NO MENTION IN THE TRANSFER MEMO THAT THE APPEAL OF THE ASSESSEE FOR PRIOR YEARS WAS PENDING BEFORE THE TRIBUNAL. IT HAS ALSO BEEN MENTIONED THAT HE WAS UNDER PROCESS TO TRANSFER A CASE OF M/S. TRENT LTD. TO AC IT -14(2), MUMBAI. THE ABOVE EXPLANATION, IN OUR VIEW, SHOWS THAT THE CONC ERNED ACIT-2(3)(1), MUMBAI HAS NEVER APPLIED HIS MIND OR BOTHERED TO CO NSIDER ABOUT THE TIME AND AGAIN DIRECTIONS OF THE TRIBUNAL AND TIME AND AGAIN LETTERS WRITTEN BY THE CONCERNED DEPARTMENTAL REPRESENTATIVE TO ACIT-2(3)( 1). THE EXPLANATION OFFERED BY THE CONCERNED ACIT TO THE LD. D.R. THROU GH HIS LETTER DATED 24.08.16 IS NOT CONVINCING AT ALL AS THE CONCERNED ACIT-2(3)(1) WAS WELL AWARE OF THE PENDENCY OF THIS APPEAL BEFORE THIS TR IBUNAL. HE WAS ALSO WELL AWARE OF THE FACTUAL POSITION THAT ASSESSEE COMPANY HAS MERGED WITH M/S. TRENT LTD. IT IS REVEALED THAT TILL DATE NO EFFORT HAS BEEN MADE BY THE CONCERNED DCIT TO FILE REVISED FORM NO.36 BEFORE THIS TRIBUNA L OR TO COMPLY WITH ANY OF THE DIRECTIONS REGARDING SERVICE OF NOTICE UPON THE ASSESSEE. 5. WE DO NOT FIND ANY JUSTIFICATION FOR FURTHER CON TINUATION OF THIS NON- SERIOUS OF APPEAL BY THE DEPARTMENT. THE APPEAL CA N NOT BE CONTINUED WITHOUT FILING OF PROPER FROM NO.36. THE CONCERNED OFFICER S HAVE MISERABLY FAILED TO COMPLY WITH THE STANDING INSTRUCTIONS REGARDING ST ANDARD OPERATING PROCEDURE ON FILING OF APPEALS TO ITAT UNDER SECTION 253 AND RELATED MATTERS ISSUED BY THE CBDT. THE MEMORANDUM OF APPEAL OF THE REVENUE IS THEREFORE REJECTED ITA NO.1347/M/2013 M/S. LANDMARK LTD. 5 AND THE APPEAL OF THE REVENUE IS DISMISSED AS NOT A DMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.08.2016. SD/- SD/- (B.R. BASKARAN) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 25.08.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.