Poonam Dyeing & Printing Mills Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(4), Surat

MA 103/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8873 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 22-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Principle of natural justice; Additional evidence

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , . ! ,'# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATIONS (S) BY SL. NO(S). MA NOS. [OUT OF ITA NO(S)] ASSESSMENT YEAR APPLICANT (S) RESPONDENT(S) 1. MA NO.103/AHD/2011 [ O/O ITA NO.3330/A/09 ] 2006-07 POONAM DYEING & PRINTING MILLS PVT.LTD. 286, GIDC PANDESARA SURAT 394 221 PAN: AABCP 6272 B ITO WARD-1(4) SURAT 2. MA NO.104/AHD/2011 [ O/O ITA NO.3332/A/09 ] 2006-07 CAPTAIN SARES PVT.LTD. SURAT -ADDRESS AS ABOVE- PAN: AAACC 9471 G ITO WARD-1(1) SURAT 3. MA NO.105/AHD/2011 [ O/O ITA NO.3333/A/09 ] 2006-07 ARIEL SAREES PVT.LTD. SURAT ADDRESS AS ABOVE- PAN : AABCA 9844 N -DO- 4. MA NO.106/AHD/2011 [ O/O ITA NO.3334/A/09 ] 2006-07 GARGSON SILK MILLS PVT.LTD. SURAT ADDRESS AS ABOVE- PAN : AABCG 6057 H ITO WARD-1(4) SURAT %& ' '/ APPLICANT(S) BY : SHRI S.N.SOPARKAR )*%& + ' ' / RESPONDENT BY : SHRI VINOD TANWANI, SR.D.R. !, + -#/ // / DATE OF HEARING : 15.6.12 . / + -# / DATE OF PRONOUNCEMENT : 1 ST AUGUST,2012 '0/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE FOUR MISCELLANEOUS APPLICATIONS HAVE BEEN FI LED BY THE DIFFERENT FOUR ASSESSEES ON 22/6/2011 ARISING FROM THE ORDERS OF THE TRIBUNAL AS TITLED HEREINABOVE ALL IDENTICALLY DATE D 31/05/2011. MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 2 - 2. LD.AR MR.S.N.SOPARAKAR APPEARED AND PLACED RELIA NCE ON THE CONTENTS OF THE APPLICATION(S), RELEVANT PARAGRAPHS ARE REPRODUCED BELOW:- I. THE APPELLANT ABOVE NAMED FILES PRESENT APPLICA TION FOR SETTING ASIDE THE ORDER DATED 31/05/2011 PASSED BY THIS HON'BLE T RIBUNAL DISMISSING THE APPEAL OF THE APPELLANT IN ABSENCE OF FURNISHIN G OF DETAILS/BOOKS OF ACCOUNTS BEFORE AO AS WELL CIT(A). 2. THE ABOVE-MENTIONED ORDER OF THE HON'BLE TRIBUN AL NOTES THAT DESPITE SERVICE OF STATUTORY NOTICES OF HEARING ON THE ASSESSEE, THE ASSESSEE FAILED TO EITHER APPEAR OR PRODUCE ANY DET AILS BEFORE AO OR LD.CIT(A). THE HON'BLE ITAT HELD THAT IN ABSENCE O F ANY EVIDENCE OR MATERIAL ON RECORD THEY FOUND NO JUSTIFICATION TO I NTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW AND THUS THIS HON'B LE ITAT PROCEEDED TO DISMISS THE CAPTIONED APPEAL. THE ASSESSEE MOST RE SPECTFULLY SUBMITS THAT SINCE THE BUSINESS ACTIVITY OF THE ASSESSEE WA S CLOSED THE ASSESSEE COULD NEITHER LOCATE THE BOOKS OF ACCOUNTS IN ABSEN CE OF ANY STAFF NOR PREPARE ANY DETAILS AS THE ASSESSEE WAS UNDER TREME NDOUS STRESS DUE TO WHICH RELEVANT DOCUMENTS COULD NOT BE SUBMITTED BEF ORE THE AUTHORITIES BELOW. 3. UNDER THE CIRCUMSTANCES, SINCE ALL BUSINESS ACT IVITIES AS WELL PREMISES OF THE BUSINESS OF THE ASSESSEE BEING UNDE R CLOSURE AND BOOKS OF ACCOUNTS AS WELL ALL THE BUSINESS DOCUMENTS BEIN G UNAVAILABLE, THE ASSESSEE WAS UNDER HARDSHIP TO ASSIST OR PURSUE THE MATTERS BEFORE TRIBUNAL. ON RECEIPT OF THE NOTICE OF HEARING FR OM THE HON'BLE ITAT, ATTEMPT WAS MADE TO TRACE OUT RECORDS, WHICH WERE K EPT IN FACTORY PREMISES OF THE ASSESSEE COMPANY WHICH WERE GIVEN O N RENT. DURING PERIOD BETWEEN RECEIPT OF NOTICE AND DATE OF HEARIN G WE COULD NOT LOCATE OUR BOOKS AND DOCUMENTS AS ALL BOOKS AND DOC UMENTS WERE MIXED UP WITH THAT OF OTHER COMPANY. AFTER EXTREME EFFORTS AND ENQUIRIES RECORDS WERE FINALLY TRACED OUT ALL BOOKS AND OTHER RECORDS A WEEK BACK AND HENCE THIS MISCELLANEOUS APPLICATION BEFORE YOUR HONOUR SO THAT WE ARE ABLE TO GET SUBSTANTIAL JUSTI CE. 4. THE APPELLANT MOST RESPECTFULLY SUBMITS THAT NO W THAT THE BOOKS OF ACCOUNTS ARE SORTED OUT AND EVIDENCE TO SUBSTANTIAT E VARIOUS CLAIMS MADE BY THE ASSESSEE ARE AVAILABLE, THE ASSESSEE UN DERTAKES TO PRODUCE AND SUBMIT THE SAME BEFORE THE HON'BLE ITAT TO MAKE OUT THE CASE TO REMAND THE MATTER TO THE FILE OF AO TO GRANT AN OP PORTUNITY OF BEING MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 3 - HEARD. THE APPELLANT PRAYS THAT THE DECISION OF TH E APPEAL WOULD CAUSE GRAVE AND IRREPARABLE INJURY TO THE APPELLANT. 5. IT IS RESPECTFULLY SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER DISMISSING THE APPEAL MAY KINDLY BE RECALLED AND THE APPEAL MAY KINDLY BE RE-FIXED FOR HEARING TO GIVE O NE MORE OPPORTUNITY TO THE APPELLANT TO REPRESENT ITS CASE. IT IS RESP ECTFULLY SUBMITTED THAT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPELLANT. 3. THE LD.AR HAS THUS PLEADED THAT ALL THE RELEVANT DOCUMENTS ARE NOW AVAILABLE AND THROUGH THOSE DOCUMENTS HE IS IN A POSITION TO SATISFY THE QUERIES OF THE REVENUE DEPARTMENT. HE HAS THER EFORE PLEADED THAT AN OPPORTUNITY MAY KINDLY BE GRANTED, SO THAT THE NATU RAL JUSTICE SHOULD NOT BE DENIED TO THIS ASSESSEE. LD.AR HAS ALSO DRAWN O UR ATTENTION ON AN AFFIDAVIT FILED BY ONE SHRI ANIL GARG IN THE CAPACI TY OF A DIRECTOR OF THE COMPANIES, WHEREIN IT IS STATED THAT DUE TO HEAVY L OSS THE COMPANIES WERE NOT IN A POSITION TO AFFORD THE ACCOUNTANT OR THE REPRESENTATIVES DUE TO WHICH DURING THE COURSE OF ASSESSMENT PROCEEDINGS, CERTAIN DETAILS COULD NOT BE FURNISHED. HOWEVER, HE HAD PERSONALLY ATTEN DED THE PROCEEDINGS AND INFORMED THE DIFFICULTY TO THE ASSESSING OFFICE R. THE BEST JUDGEMENT WAS MADE BY THE ASSESSING OFFICER AND WHEN THE MATT ER HAD GONE IN APPEAL BEFORE LD.CIT(A) THE BOOKS OF ACCOUNT COULD NOT BE PRODUCED DUE TO THE ABSENCE OF STAFF. IN THE AFFIDAVIT THE FI NANCIAL POSITION VIS--VIS NET PROFIT OF THESE COMPANIES HAVE BEEN MENTIONED. THE MAIN CONTENTION IS THAT THESE APPEALS MAY BE RESTORED BACK, SO THAT BOOKS OF ACCOUNT CAN NOW BE PRODUCED IN THE INTEREST OF NATURAL JUSTICE. LD.AR HAS ALSO MENTIONED THAT IN THE CASE OF POONAM DYEING & PRINT ING MILLS PVT.LTD. (ITA NO. 781/AHD/2009 A.Y. 2005-06, ITA D BENCH ) VIDE ORDER MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 4 - DATED 8/5/2009 THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF LEARNED CIT(APPEALS) BASICALLY FOR THE PURPOSE TO D ETERMINE THE CORRECT INCOME ON THE BASIS OF THE ACCOUNTS OF THE ASSESSEE . LD.AR HAS ALSO CITED FEW DECISIONS FOR THE PURPOSE THAT A REASONABLE PRO FIT CAN BE ASSESSED AS AN ALTERNATE RECOURSE TO ARRIVE AT THE CORRECT INCO ME. 4. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.VINOD TANWANI APPEARED AND SUPPORTED THE ORDER OF THE TRIBUNAL O N THE GROUND THAT THE TRIBUNAL HAS CATEGORICALLY STATED THAT THE ASSESSEE HAS NOT DISCHARGED THE PRIMARY ONUS AND, THEREFORE, THE ADDITION WAS UPHEL D. LD.DR HAS ALSO INFORMED THAT IN PARAGRAPH NO.4, IT WAS CLEARLY MEN TIONED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS N OT FURNISHED ANY DETAIL IN RESPONSE TO THE STATUTORY NOTICE. LD.DR HAS PLACED A RELIANCE ON PARAGRAPH NO.10 OF THE ORDER OF THE TRIBUNAL (IN IT A NO.3330/AHD/2009) WHICH READS AS UNDER:- 10. IT IS AN ADMITTED FACT THAT ASSESSEE DID NOT COMPLY WITH THE STATUTORY NOTICES BEFORE THE A.O. AND NO DETAILS AR E FURNISHED. IT IS ALSO ADMITTED THAT EVEN BOOKS OF ACCOUNTS WERE NOT PRODUCED BEFORE THE A.O. OR THE LD.CIT(A). THE LD.COUNSEL O F THE ASSESSEE REFERRED TO THE STATEMENT OF FACTS IN WHICH IT IS S TATED THAT ASSESSEE CAN PRODUCE BOOKS OF ACCOUNT AND OTHER RECORDS BEFO RE THE A.O. BECAUSE THE BUSINESS ACTIVITY OF THE ASSESSEE WERE CLOSED AND NO DETAILS COULD BE FURNISHED. IT IS ALSO STATED ON O THER DETAILS, THAT DETAILS COULD BE FILED AND A.O. COULD HAVE VERIFIED THE FACTS FROM THE OTHER PARTIES. THIS STATEMENT OF FACT WOULD SH OW THAT ASSESSEE DID NOT PRODUCE ANY DETAILS AND THE BOOKS OF ACCOUN TS BEFORE THE A.O. NO BOOKS OF ACCOUNTS AND DETAILS WERE FURNISH ED BEFORE THE LD.CIT(A). IF THE ASSESSEE WANTED THAT MATTER MAY BE REMANDED TO THE FILE OF THE A.O. ASSESSEE SHOULD HAVE MADE OUT A CASE ON THE BASIS OF THE FACTS AVAILABLE ON RECORD BUT ASSESSEE DID NOT EVEN MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 5 - RAISED ANY GROUND OF APPEAL BEFORE THE TRIBUNAL AND NO EVIDENCE OR MATERIAL IS PRODUCED AS TO WHY THE ASSESSEE DID NOT COMPLY WITH THE STATUTORY NOTICES BEFORE THE AUTHORITIES BELOW. EVEN BEFORE THE TRIBUNAL THE ASSESSEE DID NOT TAKE ANY STEPS IN BRI NGING ANY EVIDENCE ON RECORD AND EVEN NO STEPS HAVE BEEN TAKE N FOR ADMISSION OF THE ADDITIONAL EVIDENCES. IN THE ABSE NCE OF ANY EXPLANATION OR REASONS AND EVIDENCE, NO CASE IS MAD E OUT FOR REMANDING THE MATTER TO THE FILE OF THE A.O. ON ALL THE GROUNDS OF APPEAL. THE ASSESSEE THROUGHOUT REMAINED NON-CO-OP ERATIVE AND DID NOT FURNISH ANY EVIDENCE OR MATERIAL. FOR CASH CREDIT/SUNDRY CREDITORS EVEN NO CONFIRMATION OF THE PARTIES HAVE BEEN FILED. THE RATIO OF THE ORDER OF THE TRIBUNAL OR THE HIGH COUR T COULD BE APPLIED IF THE FACTS ARE AVAILABLE ON RECORD. IN T HE ABSENCE OF ANY FACTS, DETAILS AND EVIDENCES ON RECORD, NO RELIANCE COULD BE PLACED ON THE DECISION CITED BY THE LD.COUNSEL FOR THE ASS ESSEE. CONSIDERING THE FACTS OF THE CASE AND IN THE ABSENC E OF ANY EVIDENCE OR MATERIAL ON RECORD, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW. WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE APPEAL OF THE A SSESSEE. 5. THE ONLY PLEA OF THE ASSESSEE REVOLVES AROUND TH E SINGLE POINT OF NATURAL JUSTICE. THE REQUEST IS THAT NOW THE APP ELLANT BE PERMITTED TO FILE CERTAIN NEW EVIDENCES WHICH WERE NOT FILED BEF ORE THE REVENUE AUTHORITIES AS WELL AS EVEN AT THE STAGE OF SECOND APPEAL. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CO NSIDERED VIEW THAT THE SCOPE OF EXERCISING THE POWER OF NATURAL JUSTICE IS NOT PRESCRIBED U/S.254(2) OF THE I.T.ACT. THIS SECTION HAS ENTITL ED US TO REMOVE ANY DEFECT IN THE ORDER OF THE TRIBUNAL AND NOTHING MOR E. FACTS OF THE CASE HAVE REVEALED THAT THERE WAS NON-COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE ASSESSING OFFICER AS WELL AS BEFORE LD.CIT( A). THE TRIBUNAL HAD TAKEN A CONSCIENTIOUS VIEW THAT SINCE NO EVIDENCE O R MATERIAL WAS PRODUCED BY THE ASSESSEE BEFORE ASSESSING OFFICER A ND NO REASON IS GIVEN MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 6 - FOR THE SAID NON-COMPLIANCE, THEN THE ASSESSEE IS N OT JUSTIFIED IN RAISING THIS PLEA AT THIS STAGE OF RECTIFICATION OF AN APPA RENT MISTAKE. AS FAR AS THE QUESTION OF SYMPATHETIC APPROACH TO GIVE JUSTIC E TO THESE APPLICANTS IN THE LIGHT OF THE DOCTRINE OF NATURAL JUSTICE IS CON CERNED, THE SAME ALSO DO NOT APPLY BECAUSE THE ASSESSEE(S) HAD NEVER RAISED THIS GROUND EARLIER AT ANY STAGE OF THE PROCEEDINGS. NOW AT PRESENT THE A SSESSEE IS NOT FAIR IN TAKING THIS STAND. NO STEP WAS TAKEN EVEN BEFORE THE TRIBUNAL TO BRING ANY EVIDENCE ON RECORD. THE TRIBUNAL HAS STATED TH AT THE ASSESSEE REMAINED NON-COOPERATIVE THROUGHOUT. THESE APPEALS HAVE BEEN DISMISSED AFTER CONSIDERING ALL RELEVANT FACTS AND MATERIAL ON RECORD, THEREFORE, THERE IS NO SCOPE LEFT FOR AN ORDER U/S. 254(2) BECAUSE NO APPARENT MISTAKE HAS BEEN POINTED OUT BY THE APPLIC ANT(S). EVEN THIS IS NOT THE PLEA OF THE ASSESSEE(S) THAT SOME MATERIAL WAS PLACED BEFORE THE TRIBUNAL AND THAT SUBSTANTIAL MATERIAL HAD ESCAPE D THE ATTENTION OF THE TRIBUNAL, THEREFORE, QUALIFIES FOR RECTIFICATION OF MISTAKE. SINCE THIS IS NOT THE CASE OF THE ASSESSEE(S), THEREFORE WE DEEM IT PROPER TO DISMISS ALL THESE FOUR MISCELLANEOUS APPLICATIONS. 6. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLICAT IONS ARE DISMISSED. SD/- SD/- ( . ! ) ( ) '# ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 01/ 08 /2012 1-..!, .!../ T.C. NAIR, SR. PS MA NOS.103 TO 106/AHD/2011 (BY DIFF ERENT ASSESSEES) (IN ITA NOS.3330,3332,3333 & 3334/AHD/09- RESPECTIVELY ) ASST.YEAR 2006-07 - 7 - '0 + )2 3'2/ '0 + )2 3'2/ '0 + )2 3'2/ '0 + )2 3'2// COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPLICANT (S) 2. )*%& / THE RESPONDENT 3. 4 / CONCERNED CIT 4. 4() / THE CIT(A)-I, SURAT 5. 278 )! , , / DR, ITAT, AHMEDABAD 6. 89 :, / GUARD FILE. '0! '0! '0! '0! / BY ORDER, *2 ) //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION.15.6.12 (DICTATION-PAD PAGES 9 ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.6.12/25.7.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.1.8.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1.8.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER