MAHENDRA DHARIWAL, V. ACIT RG 11(),

MA 109/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0951 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 15-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T RAUMUAN PAITE
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI .. , , BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARORA, AM ./ M.A. NOS. 109, 110 & 111/MUM/2013 (ARISING OUT OF ITA NOS. 4984 TO 4986/MUM/2006) ( / ASSESSMENT YEAR: 1999-2000 TO 2001-02) MAHENDRA DHARIWAL FLAT NO.4, BUILDING NO.16, OSHIWARA MAHADA, ANDHERI (W), MUMBAI-400 053 / VS. ASST. CIT, RANGE 11(1), AAYKAR BHAVAN, MUMBAI ' ./# ./PAN/GIR NO. AFPPD 3223 D ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) '$ ' / APPELLANT BY : NONE %&'$ ( ' / RESPONDENT BY : SHRI T. RAUMUAN PAITE ) * ( +, / DATE OF HEARING : 16.08.2013 -./ ( +, / DATE OF PRONOUNCEMENT : 18.09.2013 0 / O R D E R PER SANJAY ARORA, A. M.: THESE ARE A SET OF THREE MISCELLANEOUS PETITIONS BY THE ASSESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN RES PECT OF THE CONSOLIDATED ORDER DATED 27.08.2008 U/S.254(1) BY THE TRIBUNAL IN THE ASSESSEES CASE F OR THREE CONSECUTIVE ASSESSMENT YEARS, I.E., A.YS. 1999-2000 TO 2001-02, UNDER THE CAPTIONED APPEAL NUMBERS. 2 MA NOS. 109, 110 & 111/MUM/2013 (A.YS. 99-00 TO 01- 02) MAHENDRA DHARIWAL VS. ASST. CIT 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE, EVEN AS NOTICE OF HEARING AT THE ADDRESS ON RECORD, WHICH WE FIND TO BE MATCHING WIT H THE ASSESSEES APPLICATIONS UNDER REFERENCE, HAS BEEN ISSUED THERETO PER REGISTERED P OST (RPAD) ON 10/7/2013. THE COMMUNICATION HAVING NOT BEEN RECEIVED BACK UNSERVE D, THE SAME WOULD ONLY LEAD TO THE PRESUMPTION OF ITS SERVICE AND, ACCORDINGLY, THE HE ARING IN THE MATTER WAS PROCEEDED WITH. 3. THE ASSESSEE, A FILM PRODUCER, HAS PER ITS INSTA NT APPLICATIONS CLAIMED TO HAVE SUFFERED HUGE LOSSES IN THE PRODUCTION OF MOVIES, L EADING TO A DISLOCATION OF HIS BUSINESS. HE BEING SANS THE SERVICES OF REGULAR STAFF AS WELL AS HIS REGUL AR CHARTERED ACCOUNTANT, WHO DESERTED HIM FOR NON-PAYMENT, HE COULD NOT RESP OND TO THE NOTICES AND, IN FACT, IN THE FACE OF FINANCIAL CRISES, LEFT MUMBAI FOR HIS NATIV E PLACE, RETURNING ONLY RECENTLY TO RESUME WORK. THIS EXPLAINS THE NON-ATTENDANCE AT TH E TIME OF THE HEARING OF THE APPEALS, AND WHICH LED THE TRIBUNAL TO DISMISS HIS APPEALS I N LIMINE FOR WANT OF PROSECUTION VIDE THE IMPUGNED ORDER, WHICH IS, THEREFORE, PRAYED FOR BEING RECALLED FOR PASSING A FRESH ORDER/S AFTER HEARING THE ASSESSEE. 4. AT THE VERY OUTSET, WE OBSERVE THAT THE ASSESSEE , DESPITE CLAIMING TO HAVE RETURNED TO MUMBAI AND ENGAGED IN RESUSCITATING HIMSELF AND HIS BUSINESS, HAS THOUGH MOVED THE INSTANT PETITIONS, YET FAILED TO ATTEND THE PRESENT HEARING NOR EVEN MADE A PLEA FOR THE SAME BEING DECIDED ON THE BASIS OF THE MATERIAL ON RECORD, EVEN AS THE CIRCUMSTANCES LEADING TO NON-ATTENDANCE OF HEARING OF HIS APPEALS AS WELL AS NON-RESPONDING TO THE IMPUGNED ORDER FOR YEARS TOGETHER, WOULD DEFINITELY WARRANT EXPLANATION OF THOSE CIRCUMSTANCES. IN ANY CASE, EVEN AS OBSERVED BY THE BENCH DURING HEARING ITSELF, THE APPLICATIONS BEING FILED WITH THE REGISTRY OF THE TRIBUNAL ONLY ON 15.03.2013 , ARE TIME BARRED, AS A RECTIFICATION ORDER U/S.254(2) COULD ONLY BE PASSED WITHIN FOUR YEARS OF THE ORDER U/S.254(1) SOUGHT TO BE RECTIFIED. REFERENCE IN THI S CONTEXT MAY BE MADE TO THE DECISION BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ARVINDBHAI H. SHAH V. ASSTT. CIT [2004] 91 ITD 101 (AHD)(SB). FURTHER, EVEN SO, THE TRIBUNAL COULD CONSIDER THE SAME 3 MA NOS. 109, 110 & 111/MUM/2013 (A.YS. 99-00 TO 01- 02) MAHENDRA DHARIWAL VS. ASST. CIT FAVORABLY EVEN IF THE ASSESSEES APPLICATIONS HAD B EEN MOVED WITHIN THE STATUTORY TIME LIMIT OF FOUR YEARS OF THE IMPUGNED ORDER, ON THE B ASIS THAT THE DELAY SUBSEQUENT THERETO CAN NOT ORDINARILY BE ATTRIBUTED TO THE ASSESSEE-AP PLICANT, WHICH IS NOT THE CASE. UNDER THE CIRCUMSTANCES, WE ARE CONSTRAINED BOTH BY FACTS AND BY LAW IN NOT ACCEPTING OR ENTERTAINING, AS THE CASE MAY BE, THE PRESENT APPLICATIONS. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS AR E DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 18, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) * MUMBAI; 1 DATED : 18.09.2013 . ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ) 2+ ( ) / THE CIT(A) 4. ) 2+ / CIT - CONCERNED 5. 56 %+ 7 , , 7/ , ) * / DR, ITAT, MUMBAI 6. 689 :* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ) * / ITAT, MUMBAI