MEHRUNISSA A HUSEINI, MUMBAI V. ASST CIT CEN CIR 45, MUMBAI

ITA 7823/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71864 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-10-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHWINI SINHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI , ! ! ! ! '#. . %&. . !', BEFORE SHRI SANJAY ARORA, AM AND DR. S. T. M. PAVAL AN, JM ./ I.T.A. NOS. 4386, 4387, 7823, 7824 & 7825/MUM/2011 ( ' * !+* ' * !+* ' * !+* ' * !+* / / / / ASSESSMENT YEARS: 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI 22-A, PANTON BUNDER ROAD, DARUKHANA, MUMBAI-400 010 ' ' ' ' / VS. ASST. CIT, CENTRAL CIRCLE-45, MUMBAI , ./- ./ PAN/GIR NO. AAAPH 7401 E ( ,. / APPELLANT ) : ( /0,. / RESPONDENT ) ,. 1 / APPELLANT BY : NONE /0,. 2 1 / RESPONDENT BY : SHRI ASHWINI SINHA '! 2 3& / // / DATE OF HEARING : 23.10.2013 4+ 2 3& / DATE OF PRONOUNCEMENT : 29.11.2013 5 / O R D E R PER BENCH : THIS IS A SET OF FIVE APPEALS BY THE ASSESSEE FOR F IVE ASSESSMENT YEARS (A.YS.), BEING A.YS. 2002-03, 2003-04, 2005-06 TO 2007-08, A RISING OUT OF THE ORDERS U/S. 250(6) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE FIRST APPELLATE AUTHORITY, DATED 21.08.2009 AND 15.06.2011, I.E., FOR THE FIRST TWO AND THE LAST THREE YEARS RESPECTIVELY, DISMISSING THE ASSESSEES APPEALS CONTESTING ITS AS SESSMENTS FOR THE RELEVANT YEARS. THE APPEALS RAISING COMMON ISSUES, WERE POSTED FOR AND, ACCORDINGLY, HEARD TOGETHER AND ARE BEING DISPOSED OF VIDE A COMMON, CONSOLIDATED ORDER . 2 ITA NOS. 4386, 4387, 7823 TO 7825/M/11 (A.YS. 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI VS. ASST. CIT 2. THE APPEALS WERE INITIALLY POSTED FOR HEARING ON 22.10.2013. WHEN THE APPEALS WERE CALLED OUT FOR HEARING, A PERSON, WHO COULD NO T CONFIRM HIS IDENTITY, PRESENTED AN APPLICATION DATED 21.10.2013 (COPY ON RECORD) FOR A DJOURNMENT ON BEHALF OF THE ASSESSEE. THE SAME STATES THAT THE MATTER BE ADJOURNED FOR TW O WEEKS AS THE AUTHORIZED REPRESENTATIVE (AR) WHO IS HANDLING THE MATTER IS O UT OF TOWN AND WOULD RESUME WORK ONLY AFTER TWO WEEKS. THE NAME OF THE LD. AR, HOWEV ER, WAS NOT STATED IN THE ADJOURNMENT APPLICATION. A PERUSAL OF THE APPEAL FO LDER ALSO DID NOT REVEAL ANY POWER OF ATTORNEY OR LETTER OF AUTHORITY IN FAVOUR OF ANY PE RSON. EVEN THE BEARER OF THE LETTER COULD NOT SPELL OUT THE NAME OF THE COUNSEL. IT WAS FURTH ER OBSERVED THAT THE APPEALS ARE BEING CONTINUOUSLY ADJOURNED SINCE THE TIME THE SAME HAVE BEEN FILED, AT THE INSTANCE OF THE ASSESSEE, ON ONE PRETEXT OR THE OTHER. UNDER THE CIRCUMSTANCES, NOT ACCEPTING THE ASSESSEE S ADJOURNMENT APPLICATION, THE MATTER WAS ADJOURNED TO THE FOLLOWING DAY, I.E. , 23.10.2013, TO ALLOW THE ASSESSEE AN OPPORTUNITY TO MAKE A PROPER REPRESENTATION IN THE MATTER OR EVEN WITH REGARD TO THE ADJOURNMENT, THE MATTER BEING CONTINUOUSLY ADJOURNE D FOR THE PAST 18 MONTHS. THERE WAS, HOWEVER, NO REPRESENTATION FOR AND ON BEHALF OF THE ASSESSEE ON THE SAID DATE, I.E., 23.10.2013. EACH OF THE APPEAL FOLDERS WERE PERUSED TO FIND A POWER OF ATTORNEY AVAILABLE ONLY IN ONE FILE FOLDER, I.E., FOR A.Y. 2003-04, FO R THAT YEAR ONLY. THE APPEALS FOR THE FIRST TWO YEARS WERE OBSERVED TO BE DELAYED BY A PERIOD O F 570 DAYS, FOR WHICH A DEFECT NOTICE; THE APPEALS BEING NOT ACCOMPANIED BY A CONDONATION PETITION/S, HAD BEEN ISSUED BY THE REGISTRY. EVEN THE APPEALS FOR THE A.Y. 2005-06 TO 2007-08 WERE FOUND DELAYED BY 325 DAYS, HAVING BEEN FILED ONLY ON 30.10.2012, AS AGAI NST THE DUE DATE OF 19.11.2011, INASMUCH AS THE ORDER APPEALED AGAINST STOOD COMMUN ICATED TO THE ASSESSEE ON 20.09.2011. IT WAS UNDER THE CIRCUMSTANCES CONSIDER ED ONLY PROPER TO PROCEED WITH THE HEARING OF THE APPEALS, AND DECIDE THE SAME ON THE BASIS OF THE MATERIAL ON RECORD AFTER HEARING THE PARTY BEFORE US IN THE MATTER. 3. WE HAVE HEARD THE PARTY BEFORE US, AND PERUSED T HE MATERIAL ON RECORD. WE SHALL TAKE UP THE APPEALS FOR THE FIRST TWO YEARS, FOR WH ICH THE CONDONATION APPLICATION HAS 3 ITA NOS. 4386, 4387, 7823 TO 7825/M/11 (A.YS. 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI VS. ASST. CIT SINCE BEEN RECEIVED BY THE ASSESSEE, BEING NOT SO F OR THE APPEALS FOR THE LAST THREE YEARS, I.E., A.Y. 2005-06 TO 2007-08, SEPARATELY. ITA NOS. 4386 & 4387/MUM/2011 (A.YS. 2002-03 & 2003 -04) 4. THE APPEALS FOR THE FIRST TWO YEARS, I.E., A.YS. 2002-03 AND 2003-04, ARE, AS AFORESAID, DELAYED BY A PERIOD OF 570 DAYS. THE CON DONATION APPLICATION SUBMITTED BY THE ASSESSEE STATES OF FINANCIAL DIFFICULTY, SO THAT TH E APPEAL FEES OF THE TRIBUNAL (RS.10,000/- PER APPEAL) COULD NOT BE ARRANGED FOR DEPOSIT, AS A PRINCIPAL REASON FOR THE SAID DELAY. THE SAME IS UNSUPPORTED BY AND SANS ANY DOCUMENTARY OR OTHER MATERIAL ON RECORD, SO TH ERE WAS NO EVIDENCE TOWARD THE SAME. TWO, WE ARE UNABLE TO UNDERSTAND AS TO HOW THE SAME COULD POSSIBLY EXPLAIN THE DELAY OF 19 MONTHS. THE ASSESSEE WOULD IN FACT BE AWARE OF THE NEED FOR ARRANGING FOR THE REQUIRED SUM EVEN ON THE RECEIPT OF THE IMPUGNED ORDER, SO THAT IN EFFECT SHE CLAIMS TO HAVE TAKEN 21 MONTHS FOR AR RANGING THE REQUIRED FUNDS, WHICH, GOING BY THE AMOUNTS INVOLVED IN THE APPEALS, IS A PALTRY SUM. AGAIN, WHY WE WONDER THE APPEALS COULD NOT HAVE BEEN FILED EARLIER, DEPO SITING ONLY THE SUM AS ARRANGED, AS A DEFICIT THEREIN WOULD ONLY BE A DEFECT IN THE SAID APPEALS, WHICH COULD BE RECTIFIED/REMOVED LATER. THE ASSESSEES CLAIM OF BE ING UNAWARE OF THE STATUS OF HER INCOME TAX MATTERS, THE OTHER REASON CITED FOR THE DELAY, IS IN OUR VIEW ONLY AN ALIBI, AS THERE HAD BEEN REPRESENTATION BY A SENIOR COUNSEL F OR AND ON BEHALF BEFORE THE FIRST APPELLATE AUTHORITY. ALSO, THE SAME BY ITSELF IS NO REASON FOR NOT FILING AN APPEAL IN TIME, MUCH LESS AN EXPLANATION FOR THE DELAY. THE APEX COURT IN COLLECTOR, LAND ACQUISITION VS. MST. KHATIJI & ORS. [1987] 167 ITR 471 (SC) HAS CLARIFIED THAT WITHOUT TAKING A ST RICT VIEW OF THE MATTER, THE DELAY HAS NEVERTHELESS TO BE REASONABLY EXPLAINED, AND AGAIN FOR THE ENTIRE PERIOD THEREOF. WE ARE WHOLLY UNMOVED BY THE ASSESSEES CASE AS MADE OUT I N THIS REGARD, BEING BOTH UNSUBSTANTIATED AND UNCONVINCING. HER CONDUCT, BOTH BEFORE THE FIRST APPELLATE AUTHORITY AS WELL AS BEFORE US, SEEKING ADJOURNMENT TIME AND AGAIN ON ONE PRETEXT OR THE OTHER, WITH IN FACT HAVING NOT EVEN APPOINTED A COUNSEL, EXCEPT FOR ONE YEAR (OUT OF FIVE), DESPITE 4 ITA NOS. 4386, 4387, 7823 TO 7825/M/11 (A.YS. 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI VS. ASST. CIT LAPSE OF NEARLY THREE YEARS SINCE THE RECEIPT OF TH E IMPUGNED ORDER, IS DEPRECIABLE TO SAY THE LEAST. UNDER THE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT I N THE ASSESSEES CONDONATION PETITION/S, EVEN AS WAS THE REVENUES CASE BEFORE U S AND, CONSEQUENTLY, REJECT THE SAME. THE ASSESSEES APPEALS ARE ACCORDINGLY DISMISSED AS NOT MAINTAINABLE. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEALS ARE DISMIS SED AS NOT MAINTAINABLE. ITA NOS. 7823 TO 7825/MUM/2011 (A.YS. 2005-06 TO 20 07-08) 6.1 THE APPEALS, AS AFORE-NOTED, ARE DELAYED BY ABO UT 11 MONTHS. NO CONDONATION APPLICATION HAS BEEN FILED BY THE ASSESSEE. THIS IS INDEED SURPRISING AND, IN OUR VIEW, EXHIBITS A LACKADAISICAL AND CAVALIER APPROACH TO T HE MATTER BY THE ASSESSEE, WHO HAD, EVEN ASSUMING IGNORANCE INITIALLY, BEEN MADE AWARE OF THE FACT THAT THE APPEALS ARE TIME BARRED, AND WOULD THEREFORE NEED TO BE ADMITTED BY CONDONING THE DELAY, I.E., UPON RECEIPT OF THE DEFECT NOTICE FROM THE REGISTRY OF T HE TRIBUNAL IN RESPECT OF HER APPEALS FOR A.YS. 2002-03 AND 2003-04. THERE BEING, THUS, NO RE ASON FOR CONDONING THE DELAY ON RECORD, THE SAME ARE NOT LIABLE TO BE ADMITTED AND ARE, THEREFORE, NOT MAINTAINABLE. 6.2 WE HAVE ALSO GONE THROUGH THE ORDER OF THE FIRS T APPELLATE AUTHORITY. IN FACT, FROM A READING OF THE IMPUGNED ORDER, WE FIND THAT THE FIR ST APPELLATE AUTHORITY HAS NOT ADMITTED THE ASSESSEES APPEALS INASMUCH AS THERE WAS NO PAY MENT OF THE ADMITTED TAX LIABILITY, I.E., ON THE RETURNED INCOME/S, WHICH IS A PRECONDI TION FOR THE ADMISSION OF AN APPEAL BEFORE IT IN TERMS OF SECTION 249(4)(A) OF THE ACT. THE APPEALS, IT STANDS OBSERVED BY HIM, HAD IN FACT BEEN DISPOSED OF BY HIS PREDECESSOR (CI T(A) CENTRAL-III) VIDE HIS ORDER (IN APPEAL NOS. CIT(A)(C)-III/IT-343 TO 345/2008-09 DAT ED 21.08.2009), DISMISSING THE ASSESSEES APPEALS IN LIMINE FOR THAT REASON. THE APPEALS HAVING BEEN DISMISSED, THE SAME COULD NOT BE REVIEWED ON THE SUBSEQUENT PAYMENT OF THE TAXES ON THE RETUNED INCOME, AS CONTENDED BY THE ASSESSEE BEFORE HIM. 5 ITA NOS. 4386, 4387, 7823 TO 7825/M/11 (A.YS. 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI VS. ASST. CIT 6.3 THE ASSESSEE BEFORE US IS AGGRIEVED, APART FROM ON MERITS OF ITS CASE, ON THE GROUND THAT IT IS TRITE LAW THAT THE LD. CIT(APPEALS), AS THE FIRST APPELLATE AUTHORITY, DOES NOT HAVE THE POWER TO REVIEW OR RECALL ORDERS ALREADY PASSED IN RESPECT OF ANY APPEALS. THE SAME IS NO DOUBT TRITE LAW, BUT RATHER THAN ASSISTING THE A SSESSEES CASE, IT DOES THAT OF THE REVENUE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSEES APPEALS FOR THE RELEVANT YEARS HAVING BEEN DISMISSED BY THE FIRST A PPELLATE AUTHORITY ON AN EARLIER OCCASION VIDE HIS ORDER DATED 21.08.2009 (SUPRA), T HE SAME COULD NOT BE REVIEWED BY THE SAID AUTHORITY. NEITHER DOES HER APPEALS STAND REVI VED NOR DOES THE ASSESSEE SECURE ANY RIGHT TO FILE APPEALS AFRESH FOR THE RELEVANT YEARS BEFORE THE SAME AUTHORITY, I.E., ON PAYMENT OF THE ADMITTED TAX. IN FACT, WE WONDER AS TO HOW THE ASSESSEE COULD PRESENT OR PREFER ANY APPEAL AGAIN FOR THE SAME YEAR. THE ONLY RECOURSE IN LAW AVAILABLE FOR THE ASSESSEE, WHERE AGGRIEVED BY THE SAID ORDER, IS TO FILE AN APPEAL AGAINST THE SAID ORDER BEFORE A HIGHER APPELLATE AUTHORITY, I.E., BY FOLLO WING THE APPELLATE PROCEDURE. THE FILING OF FRESH APPEALS FOR THE SAME YEARS IS A PROCESS UN KNOWN TO LAW. THE ASSESSEES APPEALS FOR RELEVANT YEARS ARE, THEREFORE, NOT MAINTAINABLE ALSO ON THIS GROUND. EVEN ASSUMING THAT THERE HAS BEEN AN ADMISSION OF THE APPEALS BY THE LD. CIT(A) INASMUCH AS HE DECIDES THE ASSESSEES APPEALS ALSO ON MERITS, THE SAME SHALL NOT OPERATE TO INVALIDATE HIS DECISION IN HOLDING THAT THE APPE ALS AS NOT ADMISSIBLE BEFORE HIM (REFER PARA 7/PGS. 5-7 OF THE IMPUGNED ORDER). THERE IS NO ESTOPPEL AGAINST LAW, SO THAT THE OTHER PART OF HIS ORDER HAS, THEREFORE, NECESSARILY TO BE REGARDED AS WITHOUT PREJUDICE. IT IS THE CORRECT LEGAL POSITION THAT IS RELEVANT, AND NOT TH E VIEW THAT THE PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER (REFER: CIT V. C. PARAKH & CO. (INDIA ) LTD . (1956) 29 ITR 661 (SC); KEDARNATH JUTE MFG. CO. LTD. V. CIT (1971) 82 ITR 363 (SC)). IN ANY VIEW OF THE MATTER , IT IS THE OTHER PART OF THE ORDER THAT IS TO BE CON SIDERED AS INCONSISTENT WITH THE LAW, EVEN AS THE ASSESSEE CLAIMS WITH REFERENCE TO THE TRITE LAW (PER GROUND NO.1 OF HER APPEALS BEFORE US). 6 ITA NOS. 4386, 4387, 7823 TO 7825/M/11 (A.YS. 2002-03, 03-04, 05-06 TO 07-08) MEHRUNISSA A. HUSEINI VS. ASST. CIT 7. IN THE RESULT, THE ASSESSEES APPEALS ARE DISMIS SED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 29, 2013 SD/- SD/- (DR. S. T. M. PAVALAN) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; 6' DATED : 29.11.2013 !.'../ ROSHANI , SR. PS 5 2 /37 87+3 5 2 /37 87+3 5 2 /37 87+3 5 2 /37 87+3/ COPY OF THE ORDER FORWARDED TO : 1. ,. / THE APPELLANT 2. /0,. / THE RESPONDENT 3. 9() / THE CIT(A) 4. 9 / CIT - CONCERNED 5. 7!<= /3' , , / DR, ITAT, MUMBAI 6. ='* > / GUARD FILE 5' 5' 5' 5' / BY ORDER, ? ?? ?/ // /@ @ @ @ (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI