DCIT 22(2), NAVI MUMBAI V. KULWANT SINGH SIDDHU, MUMBAI

ITA 68/MUM/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0747 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-08-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 68/MUM/2013 : A.Y : 2005 - 06 DCIT - 22(2), MUMBAI (APPELLANT) VS. SHRI KULWANT SINGH SIDDHU ROOM NO. 233, BETWEEN BUILDING NO. 18 & 19, CHEMBUR COLONY, MUMBAI (RESPONDENT) PAN : AAOPS2265D APPELLANT BY : SHRI M.C. OMI NINGSHEN RESPONDENT BY : NONE DATE OF HEARING : 21/12/2017 DATE OF PRONOUNCEMENT : 19 /01/2018 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 33 , MUMBAI DATED 03.10.2012 , PERTAINING TO THE ASSESSMENT YEAR 2005 - 06 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER, MUMBAI DATED 27.12.2011 UN DER SECTION 143(3) R.W.S. 254 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, REVENUE HAS RAISED VARIOUS GROUNDS, WHICH READ AS UNDER : - 2 ITA NO. 68/MUM/2013 SHRI KULWANT SINGH SIDDHU ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUGNED IN THE GROUNDS ENUMERATED BELOW : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.4,29,98,569/ - . 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSE IS NOT A SUB - CONTRACTOR AND AN INDIVIDUAL WHO IS NOT LIABLE TO DEDUCT TAX AT SOURCE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID.CIT(A) ERRED IN HO LDING THAT THE ASSESSEE HAS ONLY RECEIVED COMMISSION ON HIRING VEHICLES FROM OUTSIDE PARTY WITHOUT APPRECIATING THE FACT THAT THERE IS NO BIFURCATION IN THE SALES CONSIDERATION RECEIVED BY THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT EACH CONTRACT AMOUNT IS BELOW RS.20,000/ - WITHOUT APPRECIATING THE FACT THAT WHERE THE AGGREGATE AMOUNT PAID TO EACH PARTY IS MORE THAN RS.50,000/ - AND HENCE ATTRACTED BY T DS PROVISIONS. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE'S CASE IS COVERED BY THE DECISION OF SPECIAL BENCH OF ITAT OF VISAKHAPATNAM IN M/S. MERLYN SHIPPING CONTRACTORS WITHOUT APPRECIATING THAT THE OPERATION OF THE S AME HAS BEEN STAYED BY THE ANDHRA PRADESH HIGH COURT. 6. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVRSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. WHEN THE APPEAL WAS TAKEN UP FOR HEARING, IT WAS NOTED THAT NONE APPEARED ON BEHALF OF THE RESPONDENT - ASSESSEE WHEREAS THE LD. DR APPEARED FOR THE APPELLANT - REVENUE. THE RECORD OF PROCEEDINGS WAS PERUSED AND IT WAS FOUND THAT THOUGH APPEAL HAS BEEN FIXED ON SEVERAL OCCASIONS BUT SINCE THE TIME THE APPEAL HAS BEEN FIXED FOR THE FIRST TIME ON 19.03.2014, 3 ITA NO. 68/MUM/2013 SHRI KULWANT SINGH SIDDHU NONE HAS APPEARED ON BEHALF OF THE RESPONDENT - ASSESSEE. ON 21.04.2016, IT HAS BEEN NOTED BY THE THEN MEMBERS CONSTITUTING THE BENCH THAT THE ASSESSEE HAS S INCE DECEASED AND THE LEGAL HEIRS WERE REQUIRED TO BE BROUGHT ON RECORD AND THE LD. DR WAS DIRECTED TO CAUSE THE SAME THROUGH THE CONCERNED ASSESSING OFFICER BY 24.11.2016. ON THE SAID DATE, THERE WAS NO COMPLIANCE BY THE REVENUE AND THE MATTER WAS FURTHE R ADJOURNED TO 18.04.2017, ON WHICH DATE ALSO , REVENUE WAS ALLOWED FURTHER TIME AS LAST OPPORTUNITY. HOWEVER, EVEN ON THE NEXT DATE, I.E. 29.08.2017, NO COMPLIANCE WAS MADE BY THE REVENUE . SIMILAR POSITION HAS CONTINUED EVEN ON THE CAPTIONED DATE OF HEAR ING. 4. THE ABOVE RECORD OF PROCEEDINGS CLEARLY BRING OUT THAT THE CAPTIONED APPEAL IS AGAINST A NON - EXISTENT ASSESSEE AND INSPITE OF SEVERAL OPPORTUNITIES, APPELLANT - REVENUE HAS NOT INITIATED ANY STEPS TO BRING THE LEGAL HEIRS OF THE ASSESSEE ON RECORD. THEREFORE, WE DEEM IT FIT AND PROPER TO CONSIGN THE APPEAL TO THE RECORDS WITH THE LIBERTY TO THE REVENUE TO REINSTITUTE AND PROSECUTE THE APPEAL AS AND WHEN IT BRINGS THE NAME OF THE LEGAL HEIRS OF THE ASSESSEE ON RECORD IN COMPLIANCE WITH THE DIRECTIONS OF THE TRIBUNAL DATED 21.04.2016. TILL SUCH TIME, THE CAPTIONED APPEAL IS DISMISSED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H JANUARY, 2018. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 1 9 T H JANUARY , 201 8 *SSL* 4 ITA NO. 68/MUM/2013 SHRI KULWANT SINGH SIDDHU COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI