M/S. D.G. BUILDERS PVT. LTD, MUMBAI V. THE ITO WD 9(1)(3), MUMBAI

ITA 3635/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49102 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-08-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 10-05-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D : MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA. NO. 3635/MUM/2007 - ASSESSMENT YEAR 1998-1999 ITA. NO. 3636/MUM/2007 - ASSESSMENT YEAR 1999-2000 ITA. NO. 3637/MUM/2007 - ASSESSMENT YEAR 2000-2001 D.G.BUILDERS P. LTD. MUMBAI 400 054 PAN AAACD4336M VS. ITO, WARD 9(1)(3) MUMBAI 400 020 (APPELLANT) (RESPONDENT) FOR APPELLANT : -NONE- FOR RESPONDENT : SHRI ALEXANDER CHANDY (SR. D.R. ) ORDER PER D. MANMOHAN, V.P. 1. THESE THREE APPEALS, FILED AT THE INSTANCE OF T HE ASSESSEE- COMPANY, ARE DIRECTED AGAINST THE COMMON ORDERS PAS SED BY THE REVISIONAL AUTHORITY UNDER SECTION 263 OF THE ACT. 2. AS COULD BE NOTICED FROM THE APPEAL PAPERS, THE ORDER OF THE IMPUGNED AUTHORITY WAS COMMUNICATED TO THE ASSE SSEE ON 31/10/2006 WHEREAS, THE APPEALS WERE FILED ON 10-04 -2007 RESULTING IN A SUBSTANTIAL DELAY. APPEALS WERE ORIGINALLY DIS MISSED FOR WANT OF PROSECUTION ; BUT THE SAME WERE RECALLED HAVING REG ARD TO THE REASONS EXPLAINED BY THE ASSESSEE IN THE M.AS FILED ON 28-1 1-2009. ACCORDINGLY APPEALS WERE POSTED FOR HEARING FROM TI ME TO TIME AND THEY WERE ADJOURNED EITHER AT THE REQUEST OF THE AS SESSEES COUNSEL OR AT THE REQUEST OF THE D.R. AND FINALLY FIXED FOR HE ARING ON 1-6-2011 ON WHICH DATE ASSESSEES COUNSEL MR. B.L.OSTWAL PARTNE R OF S.J. AGARWAL & ASSOCIATES, C.AS FILED LETTER SEEKING ADJOURNMENT ON THE GROUND THAT HE HAD TO ATTEND DEATH FUNCTION AT NEW MUMBAI ON 1- 6-2011 AND THEREAFTER HE MAY HAVE TO GO ALONG WITH HIS RELATIV ES TO HIS NATIVE PLACE AND HENCE HE WILL NOT BE IN A POSITION TO ATT END. ORDINARILY WE 2 WOULD HAVE ACCOMMODATED THE COUNSEL ON THAT GROUND ALONE BUT FOR THE ABRASIVE ATTITUDE NOTICED IN THE LETTER DATED 3 0 TH MAY, 2011 OF THE COUNSEL. HE MENTIONED THAT HE HAS CASUALLY INSPECT ED THE CAUSE LIST AND CAME TO KNOW THAT THE APPEAL WAS FIXED FOR HEAR ING ON 1-6-2011. HE FURTHER STATED THAT ON THE PREVIOUS DATE OF HEAR ING I.E., ON 14/4/2011 THE CASE WAS NOT TAKEN-UP BECAUSE IT WAS DECLARED AS PUBLIC HOLIDAY AND HE ENQUIRED IN APRIL THE REGIST RY PERSON CONCERNED WHO INTURN TOLD HIM THAT NEW NOTICE WILL BE ISSUED. HE FURTHER MENTIONS THAT HIS CLIENT HAS CONFIRMED OVER THE PHONE THAT NO SUCH NOTICE WAS RECEIVED. 3. IT IS SURPRISING TO NOTE THAT DESPITE A CONSIST ENT PRACTICE FOLLOWED BY THE TRIBUNAL OF ANNOUNCING THE NEXT DAT E OF HEARING THROUGH THE NOTICE BOARD THE LEARNED COUNSEL CHOOSE S TO MAKE ENQUIRIES THROUGH THE REGISTRY PERSONS. OUT OF CU RIOSITY TO KNOW AS TO WHAT MADE HIM TO APPROACH THE REGISTRY PERSON AN D HOW THAT PERSON HAD ASSURED THAT A FRESH NOTICE WILL BE ISSU ED, WE ASKED THE PERSON WHO APPEARED BEFORE US, WHO CLAIMED TO BE TH E ASSISTANT IN THE O/O. AGARWAL & ASSOCIATES, AS TO WHICH REGISTRY PER SON WAS APPROACHED IN THAT REGARD BUT HE DREW BLANK BY STAT ING THAT HE HAS NO INSTRUCTIONS. WE HAVE FURTHER ASKED AS TO WHETHE R WE CAN POST IT EITHER TOMORROW OR ADJOURN IT BY GIVING A SHORT DAT E, IN RESPONSE TO WHICH HE MERELY STATED THAT MR. OSTWAL IS NOT AVAIL ABLE FOR COMMENT. THIS SHOWS THE ATTITUDE OF THE COUNSEL AND WHEN THE ASSESSEE IS AWARE THAT MR. OSTWAL IS NOT AVAILABLE TODAY, INSTE AD OF WAITING FOR THE NOTICE, A RESPONSIBLE PERSON COULD HAVE APPEARED BE FORE THE TRIBUNAL HAVING REGARD TO THE FACT THAT THE MATTER WAS EARLI ER DISMISSED FOR NON-APPEARANCE AND AS A SPECIAL CASE RECALLED FOR F RESH HEARING AND IN A RECALLED MATTER ORDINARILY ADJOURNMENT SHALL NOT BE GRANTED. IN FACT COUNSEL MENTIONS, IN HIS LETTER DATED 30 TH MAY, 2011, THAT A CARBON COPY IS MARKED TO THE D.R. D BENCH, WITH A REQUES T TO ACCOMMODATE AND COOPERATE SINCE HIS PREDECESSOR HAD DEMANDED A DJOURNMENT IN THE PAST. BEING A RESPONSIBLE COUNSEL HE SHOULD HAV E ENSURED THE 3 PROCEDURE FOLLOWED IN THE TRIBUNAL BEFORE ACCEPTING A BRIEF. UNFORTUNATELY, DESPITE HIS BLISSFUL IGNORANCE OF TH E PROCEDURE FOLLOWED BY THE TRIBUNAL, HAVING REGARD TO THE FACT THAT HE EXPECTS THE REGISTRY TO ISSUE A FRESH NOTICE, HE ALSO ASSUMES THAT IT IS A MUTUAL ADJUSTMENT BETWEEN THE D.R. AND THE ASSESSEES COUNSEL TO SEEK ADJOURNMENT AS A MATTER OF RIGHT. HAVING REGARD TO THE PECULIAR CI RCUMSTANCES OF THE CASE, WE ASSUME THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEALS. IT IS NOT OUT OF PLACE TO MENTION THAT THE APPEALS ARE BARRED BY LIMITATION BY 130 DAYS AND THERE WAS ALSO A SHOR T PAYMENT OF INSTITUTION FEES AND THE ASSESSEES EXPLANATION WIT H REGARD TO THE DEFECTS POINTED OUT AND THE REASONS FOR DELAY IN FI LING THE APPEALS ARE VAGUE. HAVING REGARD TO THE OVERALL CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT IS A FIT CASE TO DISMISS THE APPEALS AT THE ADMISSION STAGE IN THE LIGHT OF DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CHEMIPOL VS. UNION OF INDIA AND ANOTHER IN CENTRAL EXCISE APPEAL NO. 52/2009 DATED 17-9-2009, FOR WANT OF PROPER PROSECU TION. 4. IN THE RESULT, AS PRONOUNCED IN THE OPEN COURT, APPEALS ARE DISMISSED. SD/- SD/- (T.R. SOOD) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 2 ND JUNE, 2011 VBP/- COPY TO 1. D.G.BUILDERS P. LTD., 7, ASHOKA APARTMENT, OPP. BAN K OF MYSORE, S.V.ROAD, SANTACRUZ (W), MUMBAI 400 054 PAN A AACD4336M 2. ITO, WARD 9(1)(3), AAYAKAR BHAVAN, ROOM NO. 224, M. K. ROAD, MUMBAI 400 020 3. COMMISSIONER OF INCOME TAX-9, MUMBAI 4. ADDL.CIT, RANGE 9 (1), MUMBAI 5. DR D BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.