JAYANTILAL L. SHAH, V. ASST CIT 25(1),

MA 10/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9128 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: misc
• Appeal Filed On: 05-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K MEHTA
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA (ACCOUNTANT MEMBER) M.A. NO.10/MUM/2012 (ARISING OUT OF IT(SS)A NO.15/MUM/2007) BLOCK PERIOD: 1.4.1990 TO 26.2.2001 SHRI JAYANTILAL L. SHAH, A-31, SHANTINATH DARSHAN, L.T.ROAD, DAHISAR (EAST), MUMBAI-068 PA NO.AFBPS 4300 N ACIT, 25(1), C-11, 2 ND FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-51 (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI M.SUBRAMANIAN RESPONDENT BY: SHRI N.K.MEHTA DATE OF HEARING: 10.8.2012 DATE OF PRONOUNCEMENT: 10 .8.2012 ORDER PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION UNDER SECTION 25 4(2) OF THE INCOME TAX ACT, 1961, THE ASSESSEE HAS PRAYED TO RECALL ITATS EXPA RTE ORDER DATED 22.1.2009 IN I.T(SS) A.NO.15/MUM/2007 FOR THE BLOCK PERIOD 1.4.1990 TO 2 6.2.2001. 2. IN THE APPLICATION FILED, ASSESSEE HAS STATED TH AT THE APPEAL WAS FIXED FOR HEARING ON 7.1.2009 BUT ASSESSEE COULD NOT APPEAR AS HE WAS NOT WELL. IT IS STATED THAT AN ADJOURNMENT APPLICATION ALONGWITH MEDICAL CERTIFICA TE SENT TO THE TRIBUNAL THROUGH COURIER ON 5.1.2009 BUT THE SAME WAS RETURNED BACK UNSERVED. HENCE, NO ATTENDANCE WAS CAUSED ON THE DATE OF HEARING BEYOND THE CONTR OL OF THE SSESSEE. THE ASSESSEE HAS FURTHER STATED THE FACTS OF THE CASE IN THE A PPLICATION FOR MAKING THE DISALLOWANCE IN THE BLOCK ASSESSMENT ORDER AND CONSEQUENTLY LEVY ING PENALTY UNDER SECTION 158BFA (2) OF THE ACT. THE PRESENT APPEAL RELATED TO LEVY OF PENALTY. IN THE APPLICATION, ASSESSEE HAS ALSO STATED THAT LD CIT(A) AS WELL AS THE TRIBUNAL WHILE DECIDING THE QUANTUM APPEAL OF THE ASSESSEE AS WELL AS PASSING T HE ORDER FOR LEVY OF PENALTY HAD NOT TAKEN INTO CONSIDERATION THE DETAILS AND OTHER RELA TED PAPERS FILED BY THE ASSESSEE. IT IS M.A. NO.10/MUM/2011 (ARISING OUT OF IT(SS)A NO.15/MUM/2007) BLOCK PERIOD: 1.4.1990 TO 26.2.2001 2 ALSO STATED IN THE APPLICATION FILED BY THE ASSESS EE THAT THE TRIBUNAL WHILE PASSING THE ORDER HAD NOT GIVEN ADEQUATE OPPORTUNITY TO THE ASS ESSEE OF BEING HEARD AND HAD ALSO NOT DEALT WITH VARIOUS CASE LAWS CITED AND DEALT W ITH BY LD CIT(A) IN HIS ORDER PASSED AGAINST WHICH ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL. ASSESSEE HAS STATED THAT IN VIEW OF ABOVE FACTS THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL. 3. AT THE TIME OF HEARING OF THE APPLICATION, LD A. R. REITERATED ABOVE FACTS. LD A.R. FURTHER SUBMITTED THAT DECIDING THE APPEAL EXPARTE, TRIBUNAL HAS CAUSED PREJUDICE TO THE ASSESSEE AND, THEREFORE, IT IS A MISTAKE IN THE ORD ER OF THE TRIBUNAL. LD A.R. PLACED RELIANCE ON THE DECISION OF HONBLA APEX COURT IN T HE CASE OF HONDA SIEL POWER PRODUCTS LTD VS. CIT, 295 ITR 466(SC) AND ALSO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF LACHMAN DASS BHATIA HINGWALA (P.) LTD. V. ASSISTANT COMMISSIONER OF INCOME-TAX, 330 ITR 243(DEL). HE FURTHER SUBMITTED THAT IF THE ASSESSEE HAS FILED ADJOURNMENT APPLICATION AND THE SAME IS REJECTED AND EXPARTE ORDER IS PASSED, IT IS A MISTAKE AND THE SAID EXPARTE ORD ER SHOULD BE RECALLED. LD A.R. CITED CASE OF HONBLE GUJARAT HIGH COURT IN THE CASE OF D EVENDRA G PASALE VS. ACIT, 47 DTR(GUJ) 297 AND CASE OF ITAT IN THE CASE OF SMT. P REMVATI SINGHAL VS ITO, 12 DTR (AGRA) 183. LD A.R. SUBMITTED THAT IN VIEW OF ABOVE , THE ORDER OF THE TRIBUNAL BE RECALLED AND THE APPEAL BE DECIDED AFRESH AFTER GIV ING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DURING THE COURSE OF HEARING, A QUERY WA S RAISED TO LD A.R. THAT THE APPEAL WAS HEARD BY THE BENCH ON 7.1.2009 AND THE TRIBUNAL PASSED THE ORDER ON 22.1.2009 BUT THE MISCELLANEOUS APPLICATION HAS BEEN FILED ON 5.1.2012 I.E. AFTER A PERIOD OF THREE YEARS AND IF THE ASSESSEE WAS SERIOUS IN PURSING TH E APPEAL, WHY DID HE TAKE A PERIOD OF THREE YEARS TO FILE M.A. LD A.R. FAIRLY CONCEDED T HAT HE HAS NO EXPLANATION FOR THIS DELAY OF THREE YEARS IN FILING THE APPLICATION. HOWEVER, HE PLEADED THAT IN THE INTEREST OF JUSTICE, THE IMPUGNED ORDER OF THE TRIBUNAL DT.22.1 .2009 BE RECALLED AND APPEAL BE DECIDED AFRESH. 4. ON THE OTHER HAND, LD D.R. OPPOSED THE APPLICATI ON OF THE ASSESSEE AND SUBMITTED THAT THE TRIBUNAL HAS PASSED A DETAILED O RDER IN CONFIRMING THE ORDER OF LD CIT(A). HE FURTHER SUBMITTED THAT THE CASES CITED BY LD A.R. (SUPRA) ARE NOT RELEVANT TO THE FACTS OF THE CASE. HE SUBMITTED THAT IN THE CA SE OF OF DEVENDRA G PASALE(SUPRA), ADJOURNMENT APPLICATION OF THE ASSESSEE WAS PLACED BEFORE THE BENCH BUT IT HAD ESCAPED THE ATTENTION AND CONSEQUENTLY, EXPARTE ORD ER WAS PASSED. HOWEVER, IN THE M.A. NO.10/MUM/2011 (ARISING OUT OF IT(SS)A NO.15/MUM/2007) BLOCK PERIOD: 1.4.1990 TO 26.2.2001 3 CASE OF THE ASSESSEE, ADJOURNMENT APPLICATION WAS N OT RECEIVED BY THE TRIBUNAL AND NO EXPLANATION WAS MADE BY THE ASSESSEE EVEN IN A REAS ONABLE PERIOD TO TAKE STEP FOR RECALLING THE EXPARTE ORDER. HE FURTHER SUBMITTED THAT ASSESSEE HAS ALSO NOT PLACED ANY REASON FOR NON-APPEARANCE OF THE COUNSEL ON THE DA TE FIXED FOR PARTICULARLY WHEN THE CASE WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE O N 7.1.2009. LD D.R. SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APP LICATION OF THE ASSESSEE BE DISMISSED. 5. WE HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND SUBMISSIONS OF LD REPRESENTATIVES OF PARTIES. WE HAVE ALSO PERUSED T HE ORDER SHEET AS WELL AS CASES CITED BY LD A.R. 6. WE OBSERVE THAT ON 3.12.2008 WHEN THE CASE WAS F IXED FOR HEARING, ON BEHALF OF THE ASSESSEE AN APPLICATION FOR ADJOURNMENT WAS MAD E AND THE BENCH ADJOURNED THE HEARING AT THE REQUEST OF THE ASSESSEE TO 7.1.2009. ON THE DATE FIXED FOR HEARING I.E. 7.1.2009, NO ONE APPEARED ON BEHALF OF THE ASSESSEE , NOR THERE WAS ANY REQUEST FOR ADJOURNMENT. THEREFORE, THE TRIBUNAL AFTER CONSIDE RING THE SUBMISSION OF LD D.R. PASSED THE EXPARTE REASONED ORDER DATED 22.1.2009. THE AS SESSEE HAD NOT TAKEN ANY STEP TO RECALL THIS ORDER AND HAS FILED THIS APPLICATION AF TER A PERIOD OF THREE YEARS. NO EXPLANATION HAS BEEN GIVEN IN THE APPLICATION FOR S UCH DELAY IN FILING THE MISCELLANEOUS APPLICATION NOR AT THE TIME OF HEARING, LD A.R. COU LD NOT PLACE BEFORE US ANY EXPLANATION AND FACTS FOR DELAY OF PERIOD OF THREE YEARS TO FI LE THIS APPLICATION IN SPITE OF SPECIFIC QUERY RAISED BY THE BENCH. THERE IS NO DISPUTE THA T AS PER SECTION 254(2) OF THE ACT, AN APPLICATION COULD BE FILED WITHIN A PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD BUT I N THE CASE BEFORE US, IT IS NOT THE CASE OF THE ASSESSEE THAT THERE IS A MISTAKE IN THE ORDE R OF THE TRIBUNAL. THE PRAYER IS ONLY THAT THE TRIBUNAL HAS PASSED EXPARTE ORDER HENCE, ASSESSEE COULD NOT GET OPPORTUNITY OF BEING HEARING AND, THEREFORE, ORDER BE RECALLED. ON PERUSAL OF THE SAID ORDER, WE FIND THAT THE TRIBUNAL HAS GIVEN A DETAILED FINDING AND PASSED A REASONED ORDER TO CONFIRM THE ORDER OF LD CIT(A). THE ASSESSEE HAS NOT POINT ED OUT ANY MISTAKE IN THE SAID ORDER SAVE AND EXCEPT STATING, INTER ALIA, THAT THE TRIBU NAL HAS NOT DISCUSSED THE CASES CITED BY LD CIT(A). ON PERUSAL OF ORDER, WE OBSERVE THAT THE SAID CONTENTION OF ASSESSEE HAS NO MERIT. IF THE CONTENTION OF THE ASSESSEE THAT HE S ENT THE APPLICATION AND THE SAME WAS RETURNED UNSERVED IS CONSIDERED THE REASONABLE CAUS E FOR NON-APPEARANCE ON 7.1.2009 , ASSESSEE SHOULD HAVE TAKEN STEP TO ASCERTAIN THE FA TE OF THE APPEAL FILED AND OUTCOME OF M.A. NO.10/MUM/2011 (ARISING OUT OF IT(SS)A NO.15/MUM/2007) BLOCK PERIOD: 1.4.1990 TO 26.2.2001 4 HEARING OF THE APPEAL WHICH WAS FIXED ON 7.1.2009. ON THE CONTRARY, IT IS EVIDENT THAT ASSESSEE HAD NOT TAKEN ANY STEP AND HAS FILED THIS APPLICATION ON 5.1.2012 STATING THE FACTS AS MENTIONED HEREINABOVE. WE AGREE WITH LD D .R. THAT CASES CITED BY LD A.R. ARE NOT RELEVANT TO THE FACTS OF THE CASE OF THE ASSESS EE AS IT IS NOT A CASE THAT THE TRIBUNAL PASSED THE ORDER WITHOUT CONSIDERING ANY OF THE CAS ES CITED ON BEHALF OF THE ASSESSEE, DUE TO WHICH THERE IS PREJUDICE TO THE ASSESSEE. N OR IT IS A CASE THAT ANY ADJOURNMENT APPLICATION WAS PLACED ON RECORD AND THE TRIBUNAL F AILED TO TAKE NOTE OF IT AND PASSED THE EXPARTE ORDER. 7. CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AND GROUNDS TA KEN BY THE ASSESSEE ARE BEYOND THE PURVIEW OF SECTION 254(2) OF THE ACT. ACCORDINGLY, APPLICATION OF THE ASSESSEE FOR RECALLING THE ORDER OF THE TRIBUNAL DT.22.1.2009 HA S NO MERIT AND THE SAME IS REJECTED. 8. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS REJECTED. ORDER TO REJECT APPLICATION PRONOUNCED IN THE COUR T ON 10 TH AUGUST, 2012 SD/- (RAJENDRA ) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 21 ST AUGUST, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XXV, MUMBA I 4. COMMISSIONER OF INCOME TAX,XXV , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI