M/s Enso Secutrack Limited, Hyderabad V. ACIT, Cir-2(2), Hyderabad

MA 1/HYD/2013

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9816 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 22-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPTA
• Assessee Lawyers: K C DEVADAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL M EMBER MISC.APPLN. NO.01/HYD/2013 (IN ITA NO.363/HYD/2012) : ASSESSME NT YEAR 2008-09 M/S. ENSO SECUTRACK LTD., HYDERABAD ( PAN - AAACT 7537 J) V/S. ASSTT. COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), HYDERABAD (APPLICANT) (RESPONDENT) APPL IC ANT BY : SHRI K.C.DEVADAS RESPONDENT BY : MS.AMISHA S.GUPTA, DR DATE OF HEARING 1 1 . 01 .201 3 DATE OF PRONOUNCEMENT 31.01.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER BY THIS APPLICATION UNDER S.254(2) OF THE INCOME- TAX 1961, THE APPLICANT-ASSESSEE SEEKS RECTIFICATION/RECALL OF TH E ORDER OF THIS TRIBUNAL DATED 10.10.2012 IN ITA NO.363/HYD/2012 ON THE GROU ND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE S AME. 2. WE HEARD BOTH SIDES AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE AVERMENTS MADE BY THE ASSESSEE IN THE PRESENT APPLICATION. BY THE ORDER OF THIS TRIBUNAL DATED 10.10.2012, THE AP PEAL OF THE ASSESSEE HAS BEEN DISMISSED UPHOLDING THE ACTION OF THE CIT(A) I N DISMISSING THE APPEAL OF THE ASSESSEE, ON THE GROUND OF SHORT-FALL IN THE PA YMENT OF ADMITTED TAXES ON MA NO.01/HYD/2013 (IN ITA NO.363/HYD/2012) M/S. ENSO SECUTRACK LIMITED, HYDERABAD 2 THE RETURNED INCOME. IT IS AVERRED IN THE PRESENT APPLICATION THAT THE TOTAL ADMITTED TAX PAYABLE EXCLUDING INTEREST OF RS.94,64 ,079 WAS RS.3,32,00,487 ON THE BASIS OF INCOME RETURNED AT RS.9,96,77,222. AS AGAINST THIS, IT WAS POINTED OUT THAT AN INTIMATION WAS PASSED ON 19.2.2 010 RAISING TOTAL DEMAND OF RS.4,43,58,945, WHICH INCLUDED INTEREST COMPONEN T OF RS.1,11,58,458. AS AGAINST DEMAND THUS RAISED OF RS.3,32,00,487, EXCLU DING THE INTEREST COMPONENT FROM THE TOTAL TAX DEMAND, FURNISHING DE TAILS OF THE TAXES PAID FROM TIME TO TIME, IT IS SUBMITTED THAT AN AGGREGAT E AMOUNT OF RS.1,30,24,516 WAS PAID TOWARDS TAXES BY THE DATE O F THE FILING OF THE RETURN, VIZ. 2.12.2009; RS.2,81,14,032 BY THE TIME OF PASSI NG OF THE ASSESSMENT ORDER BY THE ASSESSING OFFICER, VIZ. 31.1.2011; RS. 43,02,494 BY THE DATE OF PASSING OF THE APPELLATE ORDER BY THE CIT(A); AND R S.3,58,36,089 BY THE DATE OF PASSING OF THE APPELLATE ORDER BY THE TRIBUNAL. IT IS ALSO POINTED OUT THAT AN AMOUNT OF RS.10,000,000 WAS PAID ON 16.10.2012, AFTER THE ORDER OF THE TRIBUNAL, THUS TAKING THE AGGREGATE PAYMENT TILL TH E DATE OF THE FILING OF THE PRESENT APPLICATION TO RS.4,53,11,573. 4. IN VIEW OF THE PAYMENT POSITION TOWARDS TAXES, INTEREST, ETC. NARRATED ABOVE, IT IS POINTED OUT THAT THERE WAS NO SHORTFALL IN PAYMENT OF ADMITTED TAXES ON THE DATE OF HEARING OF THE APPEAL . IT IS THEREFORE, SUBMITTED THAT THE TRIBUNAL WAS NOT JUSTIFIED IN DI SMISSING THE APPEAL ON THE ASSUMPTION AND ADMISSION OF CERTAIN FACTS WHICH ARE NOT CORRECT, ON THE GROUND OF SHORT FALL IN THE PAYMENT OF ADMITTED TAX ON THE RETURNED INCOME. 5. ON CAREFUL CONSIDERATION OF THE MATTER, WE FIND THAT IT WAS CONSISTENT PLEA OF THE ASSESSEE RIGHT FROM THE BEGI NNING, INCLUDING DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A), THAT THERE WAS ADMITTEDLY SHORT FALL IN THE PAYMENT OF ADMITTED TAXES, AND IT IS EVIDENT FROM THE IMPUGNED ORDER OF THE CIT(A) THAT THE ASSESSEE HAS BEEN PLEADING F INANCIAL STRINGENCY, AND, MA NO.01/HYD/2013 (IN ITA NO.363/HYD/2012) M/S. ENSO SECUTRACK LIMITED, HYDERABAD 3 IN FACT, ASSESSEE WAS PRAYING FOR ADJOURNMENTS FROM TIME TO TIME, TO ENABLE IT TO MAKE PAYMENT OF THE BALANCE OUTSTANDING AMOUN T OF ADMITTED TAX. IT IS APT TO EXTRACT, AT THIS JUNCTURE, RELEVANT OBSERVAT IONS OF THE CIT(A) FROM CONCLUDING PART OF PARA-2 OF THE CIT(A)S ORDER- .IT WAS SUBTITLED THAT DESPITE SUCH SITUATION, T HE APPELLANT TRIED ITS UTMOST TO ARRANGE FOR FUNDS AND MADE FURTHER PA YMENT TOWARDS TAXES DUES OF ASST. YEAR 2008-09 ON DIFFERENT DATES . IT WAS STATED THAT AFTER MAKING PAYM ENT OF RS.1,74,40,510 DURING THE PERIOD FROM 01.12.2009 TO 22.07.211. THE BALANCE SELF-ASSESSMEN T TAX DUE ON THE RETURNED INCOME IS RS.1,41,06,370 AND THE APPELLANT IS MAKING ALL OUT EFFORTS TO CLEAR THE SAME. WITH THESE SUBMISSIONS, IT WAS REQUESTED TO ALLOW ONE MONTH TIM E UPTO 15.01.2012, TO ENABLE THE APPELLANT TO MAKE PAYM ENT OF THE BALANCE SELF ASSESSMENT TAX OF RS.1.41 CRORES, SO THAT THE APPEAL HEARING MAY BE TAKEN UP. 6. THE ABOVE CONTENTIONS OF THE ASSESSEE, AS NOTE D BY THE CIT(A) IN HIS ORDER, WHICH HAVE NOT BEEN DISPUTED EITHER IN THE GROUNDS OF APPEAL OR IN THE COURSE OF APPEAL HEARING, AND IT IS TOO LATE IN THE DAY FOR THE ASSESSEE TO CLAIM THAT THERE WAS NO VIOLATION IN TERMS OF S.249 (4) OF THE ACT. THE TRIBUNAL NOTED AS AN ADMITTED FACT THAT EVEN ON THE DATE OF PASSING OF THE ORDER, AS ADMITTED BY THE LEARNED AUTHORISED REPRES ENTATIVE FOR THE ASSESSEE, THERE WAS SHORTFALL IN THE PAYMENT OF ADM ITTED AND UNDISPUTED TAX TO THE EXTENT OF RS.93 LAKHS. EVEN THOUGH THE ASSES SEE THROUGH THE PRESENT APPLICATION DISPUTES THIS OBSERVATION OF THE TRIBUN AL, ON VERIFICATION OF THE RECORD, WE DO NOT FIND ANY MISTAKE IN THE ABOVE OBS ERVATION MADE BY THE TRIBUNAL, AS HAS BEEN ADMITTED BY THE LEARNED AUTHO RISED REPRESENTATIVE OF THE ASSESSEE. IN ANY EVENT, WHEN THERE WAS ADMITT EDLY, SUBSTANTIAL SHORTFALL IN THE PAYMENT OF ADMITTED TAX ALL THROUGH THE APPE LLATE PROCEEDINGS BEFORE THE CIT(A), AND THE LEARNED AUTHORISED REPRESENTATI VE FOR THE ASSESSEE, AS NOTED BY THE CIT(A) IN THE IMPUGNED ORDER ITSELF, A LL THROUGH THE ASSESSMENT PROCEEDINGS, WAS PLEADING FOR TIME, BY GRANTING ADJ OURNMENT OF HEARING, TO MAKE GOOD THE SHORT-FALL BY MAKING THE REQUISITE PA YMENT OF TAX, IT IS NOT CORRECT TO SAY THAT THERE WAS NO VIOLATION IN TERMS OF S.249(4) OF THE ACT. MA NO.01/HYD/2013 (IN ITA NO.363/HYD/2012) M/S. ENSO SECUTRACK LIMITED, HYDERABAD 4 THAT BEING SO, THERE CAN BE NO MISTAKE IN THE VIEW TAKEN BY THE TRIBUNAL, IN CONFIRMING THE ORDER OF THE CIT(A) IN DISMISSING TH E APPEAL, ON GROUND OF SHORT-FALL IN THE PAYMENT OF ADMITTED TAXES ON THE RETURNED INCOME. 7. THOUGH THE LEARNED COUNSEL FOR THE ASSESSEE, DU RING THE RECTIFICATION PROCEEDINGS BEFORE THIS TRIBUNAL, REL IED UPON CERTAIN DECISIONS, WE FIND THAT THOSE DECISIONS ARE IN THE CONTEXT OF THE MERITS OF THE CASE, AND AS SUCH, THEY HAVE NO RELEVANCE IN THESE PROCEEDING S FOR RECTIFICATION UNDER S.254(2), THE SCOPE OF WHICH IS CONFINED TO DETERMI NING THE EXISTENCE OR OTHERWISE OF ANY MISTAKE APPARENT FROM RECORD IN TH E ORDER OF THIS TRIBUNAL DATED 10.10.2012, SO AS TO WARRANT RECTIFICATION TH EREOF. 8 IN THE LIGHT OF THE ABOVE DISCUSSION, WE FIND TH AT THE PRESENT APPLICATION OF THE ASSESSEE IS DEVOID OF MERIT, AND HENCE, IS LIABLE TO BE REJECTED. WE REJECT THE SAME ACCORDINGLY. 9. IN THE RESULT, ASSESSEES APPLICATION IS REJECTE D. ORDER PRONOUNCED IN THE COURT ON 31.1.2013 SD/- SD/- ( B.RAMAKOTAIAH ) ( SAKT IJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- 31 ST JANUARY, 2013 COPY FORWARDED TO: 1. M/S. ENSO SECUTRACK LTD., FLAT NO.121, 1 ST FLOOR, AMRUTHA VILLE, OPP. YASHODA HOSPITAL, SOMAJGUDA, HY DERABAD 500 082 2. 3. ASST. COMMIS SIONER OF INCOME - TAX, CIRCLE 2(2), HYDERABAD COMMISSIONER OF INCOME - TAX(APPEALS) III, HYDERABAD MA NO.01/HYD/2013 (IN ITA NO.363/HYD/2012) M/S. ENSO SECUTRACK LIMITED, HYDERABAD 5 4. 5. COMMISSIONER OF INCOME - TAX - II , HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.