Gautam Jain, L/R of Late Hemraj Begwani, Kolkata V. ACIT, Circle - 17(1), Kolkata, Kolkata

MA 110/KOL/2011

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4320 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 15-04-2016
• Assessment Year: misc
• Appeal Filed On: 25-11-2011
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA E BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO. 2649/CAL/ 1997) ASSESSMENT YEAR: 1988-1989 UTTAM JAIN,........................................ ...............................APPLICANT L/R. OF LATE HEMRAJ BEGWANI, 10, GANESH CHANDRA AVENUE, KOLKATA-700 013 -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...........RESPONDENT CIRCLE-17(1), KOLKATA, APPEARANCES BY: SHRI ANIL KOCHAR, ADVOCATE., FOR THE APPLICANT SHRI SALLONG YADEN, ADDL. CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MAY 06, 2016 DATE OF PRONOUNCING THE ORDER : MAY 13, 2016 O R D E R PER SHRI P.M. JAGTAP :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 31 ST DECEMBER, 2002 PASSED IN M.A. NO. 106/KOL/2002 READ WITH THE ORDER ORIGINALLY PASSED ON 23.04.2001 IN ITA NO. 2649/CAL/1997. 2. AS NOTED, AT THE OUTSET, THE REGISTRY HAS POINTE D OUT THAT THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASS ESSEE AFTER 3251 DAYS FROM THE DATE OF ORDERS SOUGHT TO BE RECTIFIED AS A GAINST THE PERIOD OF 1461 DAYS STIPULATED IN THE ACT AND THERE IS THUS A DELAY OF 1790 DAYS. IN THIS REGARD, LEGAL HEIR OF THE ASSESSEE HAS FILED A N AFFIDAVIT STATING THAT EVEN THOUGH THE ORDER IN M.A. NO. 106/KOL/2002 WAS PASSED BY THE M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 2 OF 9 TRIBUNAL ON 31.12.2002, THE COPY OF THE SAME WAS NO T RECEIVED BY THE ASSESSEE AND ONLY AFTER THE DEATH OF THE ASSESSEE O N 19.09.2008, THE LEGAL HEIR OF THE ASSESSEE RECEIVED THE COPY OF THE SAID ORDER ON 23.08.2011 AFTER MAKING AN APPLICATION FOR THE SAME. THE LD. C OUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE IS THUS NO DELAY ON THE PA RT OF THE ASSESSEE IN FILING THIS MISCELLANEOUS APPLICATION AND KEEPING I N VIEW THIS SUBMISSION MADE BY HIM, WHICH IS DULY SUPPORTED BY THE AFFIDAV IT FILED BY THE LEGAL HEIR OF THE ASSESSEE, WE HAVE ENTERTAINED THIS MISC ELLANEOUS APPLICATION AND NOW PROCEED TO DECIDE THE SAME ON MERIT. 3. AS SUBMITTED IN THE PRESENT MISCELLANEOUS APPLIC ATION FILED BY THE ASSESSEE AND FURTHER REITERATED AT THE TIME OF HEAR ING BEFORE US BY THE LD. COUNSEL FOR THE ASSESSEE, THE ORDER OF THE TRIBUNAL SUFFERS FROM THE FOLLOWING MISTAKES:- (I)THAT AN APPEAL WAS FILED BY THE LATE APPELLANT F OR THE YEAR UNDER CONSIDERATION AGAINST THE ASSESSMENT ORDER PA SSED BY THE ASSESSING OFFICER U/S 143(3)/ 251 OF THE INCOME-TAX ACT, 1961 DATED 30.03.1994 (COPY ENCLOSED AT ANNEXURE 1) BEFO RE THE CIT(A)-II, CALCUTTA, AGAINST THE SAID CIT(A). IN TH E SAID RE- ASSESSMENT ORDER, VARIOUS ADDITIONS HAD BEEN MADE. (II) THAT IN HIS APPELLATE ORDER DATED 31.03.1997 ( COPY ENCLOSED AT ANNEXURE-H), THE LEARNED CIT(A), THOUGH MENTIONED THE VARIOUS GROUNDS OF APPEAL TAKEN UP BEFORE HIM, WHICH INCLUDED LACK OF PROPER OPPORTUNITY HAVING BEEN PRO VIDED AS WELL AS CHALLENGES TO THE VARIOUS DECISION TAKEN BY THE A.O. RESULTING IN THE VARIOUS ADDITIONS IN THE ASSESSMEN T, HE, HOWEVER, MAINLY COMMENTED,- 'THOUGH A NUMBER OF GRO UNDS ARE ENLISTED NO ATTEMPT IS MADE TO DEAL WITH THEM SYSTE MATICALLY SO THAT ALL THESE ARE SUBSTANTIATED.' AFTER SAYING SO, HE DISMISSED THE APPEAL SIMPLY BY HOLDING THAT SUFFICIENT OPPORT UNITY HAD BEEN ALLOWED TO THE APPELLANT AT THE RE-ASSESSMENT STAGE, WITHOUT GOING INTO OR DISCUSSING THE NATURE AND MER ITS OF THE INDIVIDUAL ADDITIONS AND WITHOUT ADJUDICATING THE A PPELLATE GROUNDS TAKEN UP AGAINST SUCH ADDITIONS. M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 3 OF 9 (III) THAT AN APPEAL WAS FILED BEFORE THE HON'BLE I TAT, CALCUTTA BENCH, AGAINST SUCH APPELLATE ORDER PASSED BY THE L EARNED CIT(A), IN WHICH THE FIRST GROUND NO. 1 WAS AS FOLL OWS- 'ALL THE ADDITIONS BE DELETED ACCEPTING THE NATURE OF BUSINE SS' AND GROUND NO. 2 WAS,- 'ALL THE EVIDENCES FILED IN SUPP ORT OF THE RETURN FILED BE ACCEPTED (COPY OF THE FORM NO. 36 ALONG WITH THE GROUNDS OF APPEAL ENCLOSED AT ANNEXURE-III) (IV) THAT ITAT, E-BENCH, CALCUTTA BY ITS FINAL ORDE R DATED 23.4.2001 (AFTER ONCE DISMISSING THE APPEAL ON THE GROUND OF NON-COMPLIANCE AND THEN RECALLING THE SAID EX-PARTE ORDER] IN ITA NO. 2649 (CAL) OF 97 ENCLOSED AS ANNEXURE-IV), DISMISSED THE APPEAL BY HOLDING THE APPELLANT HAD ALREADY BEE N PROVIDED SUFFICIENT OPPORTUNITIES AT THE LOWER STAGES AND TH AT THERE WAS NO APPELLATE GROUND AGAINST ANY PARTICULAR ADDITION . THE HON'BLE TRIBUNAL HELD AS FOLLOW:- 'IN OTHER WORDS, THE ASSESSEE HAS NOT COME IN APPEA L AGAINST ANY PARTICULAR ADDITION'. [VIDE PARA 2 OF THE ORDER ] IMMEDIATELY AFTER SAYING SO, THE HON'BLE TRIBUNAL M ADE A SELF- CONTRADICTORY STATEMENT,- 'HE WANTS TO CHALLENGE TH E ENTIRE ASSESSMENT ORDER.' IT IS BEING SUBMITTED THAT CHALL ENGING THE ENTIRE ASSESSMENT ORDER CERTAINLY INCLUDES CHALLENG ING THE INDIVIDUAL ADDITIONS AS WELL. AT PARA 8 OF THE APPELLATE ORDER, THE HON'BLE TRIBU NAL CONCLUDED THAT A NUMBER OF OPPORTUNITIES HAD BEEN G IVEN TO THE APPELLANT AT LEAST AT THE RE-ASSESSMENT STAGE. THER EAFTER, AT PARA 9 OF THE ORDER, THE HON'BLE TRIBUNAL HELD,- 'T HE ASSESSEE HAS NO CASE ON MERITS' (WITHOUT GOING INTO THE MERI TS OF THE CASE). FINALLY, IT WAS HELD,- 'WE ARE OF THE VIEW T HAT IF WE RESTORE THE MATTER IN THE THIRD INNING, THE SAME WO ULD BE TANTAMOUNT TO THE ABUSE OF LAW. THEREFORE, WE DECLI NE TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITIES . .. ' V) THE APPELLANT FILED A MISCELLANEOUS PETITION DAT ED 27.05.2002, U/S 254(2) OF THE INCOME-TAX ACT, 1961, PRAYING FOR RECALLING OF THE ABOVE ORDER OF THE TRIBUNAL NOT AD JUDICATING UPON GROUNDS RAISED ON MERITS BUT SIMPLY DISMISSING THE APPEAL BY HOLDING THAT SUFFICIENT OPPORTUNITIES HAD BEEN A FFORDED AT THE LOWER STAGES (COPY ENCLOSED AT ANNEXURE V). VI) THEREAFTER, THE SAID MISCELLANEOUS PETITION WAS DULY HEARD BY THE HON'BLE TRIBUNAL WITH DUE REPRESENTATION FRO M THE SIDE OF THE APPELLANT. BUT THE APPELLANT DID NOT RECEIVE ANY INTIMATION OR COPY OF THE ORDER FROM THE HON'BLE TR IBUNAL. M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 4 OF 9 AFTER A LONG TIME AND AFTER THE DEATH OF THE ORIGIN AL APPELLANT, WHEN HIS LEGAL HEIR AND SUCCESSOR WANTED TO OBTAIN A FINALITY OF THE MATTER, HE I.E. SHRI GAUTAM JAIN (THE PRESENT A PPLICANT AND SON OF THE ORIGINAL APPELLANT) MADE AN APPLICATION BEFORE THE ASSISTANT REGISTRAR, ITAT, KOLKATA BENCH, DATED 15. 06.2001, ASKING FOR A CERTIFIED COPY OF THE ORDER OF THE TRI BUNAL IN THE SAID MISCELLANEOUS PROCEEDING.( COPY OF THE APPLICA TION DATED 15.06.2011 AT ANNEXURE VI). VII) IN RESPONSE TO THE SAID APPLICATION, THE PRESE NT APPLICANT HAS VERY RECENTLY BEEN SERVED WITH A CERTIFIED COPY OF THE ORDER OF THE ITAT, 'E' BENCH KOLKATA, DATED 31.12.2002 IN MA NO.106 (KOL) OF 2002 (COPY ENCLOSED AT ANNEXURE VII), IN W HICH THE HON'BLE TRIBUNAL REFERRED TO PARA 4 OF THE IMPUGNED ORDER OF CIT(A) IN WHICH HE HAD DISCUSSED THAT A NUMBER OF OPPORTUNITIES FOR HEARING HAD BEEN GRANTED TO THE A PPELLANT BUT THAT THE ASSESSMENT HAD TO BE MADE EX-PARTE FOR CONTINUED NON-CO-OPERATION. THEREAFTER, THE HON'BLE TRIBUNAL HELD AS FOLLOW,- 'BEFORE THE TRIBUNAL WHAT WAS ARGUED BY THE AUTHORI SED REPRESENTATIVE ON BEHALF OF THE ASSESSEE IS NOT THE INDIVIDUAL ADDITION BUT THE ENTIRE ASSESSMENT ON THE GROUND TH AT PROPER OPPORTUNITY WAS NOT GIVEN BY THE AUTHORITIES BELOW. IN THIS VIEW OF THE THING, THE TRIBUNAL IN PARA 6 OF ITS OR DER POINTED OUT THAT AS MANY AS 8 OPPORTUNITIES WERE GIVEN BY ' THE ASSESSING OFFICER DURING THE RE-ASSESSMENT STAGE. T HE CIT(A) HAS ALSO GIVEN SUFFICIENT OPPORTUNITY OF HEARING. T HEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORD ER PASSED BY THE TRIBUNAL WHICH REQUIRES RECTIFICATION THEREF ORE, WE DECLINE TO INTERFERE WITH THE ORDER PASSED BY THE T RIBUNAL IN THIS REGARD AND REJECT THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE. ' 2. IT IS THE HUMBLE SUBMISSION OF THE APPELLANT IN THIS MATTER THAT IT WILL BE CLEAR FROM ABOVE DISCUSSIONS THAT W HEREAS IN THE ORIGINAL ORDER OF THE TRIBUNAL DATED 23.04.2001 (SO UGHT TO BE RECTIFIED), THE ADDITIONS IN THE RE- ASSESSMENT, AG AINST WHICH DEFINITE GROUNDS OF APPEAL HAD BEEN RAISED, WERE NO T DELIBERATED UPON AND THAT THE APPEAL WAS DISMISSED ON THE GROUND THAT SUFFICIENT OPPORTUNITIES HAD BEEN GRANT ED BY THE LOWER AUTHORITIES. EVEN IN THE ORDER DATED 31.12.20 02 DISPOSING OF THE MISCELLANEOUS PETITION ALSO, EXACTLY SIMILAR TYPES OF FINDINGS WERE GIVEN, THE HON'BLE TRIBUNAL, AT NO ST AGE, TRIED TO ADDRESS THE ISSUES RELATING TO THE INDIVIDUAL ADDIT IONS, WHICH HAD CERTAINLY BEEN CHALLENGED BOTH BEFORE THE CIT(A ) AS WELL AS BEFORE THE TRIBUNAL. IT WAS SIMPLY DISCUSSED IN THE ORDER OF THE M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 5 OF 9 TRIBUNAL THAT THE AUTHORISED REPRESENTATIVE OF THE APPELLANT HAD NOT DISCUSSED THE INDIVIDUAL ADDITIONS AND HAD MORE STRESSED ON THE NECESSITY OF SETTING ASIDE THE RE- ASSESSMENT AND SENDING THE SAME BACK TO THE FILE OF THE A.O. I T IS BEING SUBMITTED, MOST HUMBLY, THAT EVEN IF THAT MIGHT HAV E BEEN SO, IT WAS THE DUTY OF THE HON'BLE TRIBUNAL TO ADDRESS THE GROUNDS RELATING TO THE ADDITIONS MADE IN THE RE-ASSESSMENT . IT IS WORTHWHILE TO KINDLY NOTE THAT THE SAID GROUND HAD NOT BEEN WITHDRAWN BY THE AUTHORISED REPRESENTATIVE OF THE A PPELLANT. NOT CONSIDERING SUCH IMPORTANT GROUND OF APPEAL CER TAINLY CONSTITUTES MISTAKE APPARENT FROM RECORD IN THE ORD ER OF THE TRIBUNAL DATED 23.04.2001. IN THIS CONNECTION REHAN CE IS BEING PLACED ON THE DECISIONS OF RAJASTHAN HIGH COURT IN THE CASE OF RAMESH CHAND MODI [249 ITR 323], HOLDING, -'FAILURE TO CONSIDER GROUNDS TAKEN IN APPEAL MEMO CONSTITUTES M ISTAKE APPARENT FROM RECORD' AND OF THE ALLAHABAD HIGH COU RT IN THE CASE OF K.M. SUGAR MILLS (P) LTD. [2751TR 247] HOLD ING,- 'OMISSION TO CONSIDER GROUND RAISED IN APPEAL CONST ITUTES MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED . 4. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BY STATING THAT T HERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUN AL AS ALLEGED BY THE ASSESSEE. HE INVITED OUR ATTENTION TO PARA NO. 9 OF THE TRIBUNALS ORDER DATED 23.04.2001 PASSED IN ITA NO. 2649/CAL/1997 AN D SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REJECTED BY THE TRIBUN AL EVEN ON MERIT BY HOLDING THAT THE ASSESSEE HAD NO CASE ON MERIT. HE CONTENDED THAT THE TRIBUNAL THUS HAS NOT ONLY ADJUDICATED UPON THE ISS UES RAISED BY THE ASSESSEE ON MERITS BUT HAS ALSO EXPRESSED A CLEAR V IEW ON THE SAID ISSUES. HE ALSO SUBMITTED THAT A SIMILAR MISTAKE WAS SOUGHT TO BE POINTED OUT BY THE ASSESSEE IN HIS APPLICATION FILED EARLIER BEING M.A. NO. 106/KOL/2002 AND THE TRIBUNAL HAS ALREADY REJECTED THE SAID APPL ICATION. HE CONTENDED THAT THE SECOND M.A. ON A SIMILAR POINT IS NOT MAIN TAINABLE AND EVEN THE SCOPE OF RECTIFICATION UNDER SECTION 254(2) IS LIMI TED TO RECTIFY ONLY THE PATENT AND GLARING MISTAKE. HE ALSO CONTENDED THAT THE TRIBUNAL CANNOT REVIEW ITS DECISION UNDER SECTION 254(2). M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 6 OF 9 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL AFTER RECORDING ITS OBSERVATIONS/FINDINGS IN PARAGRAPHS NO. 8 & 9 OF IT S ORDER DATED 23.04.2001 AND THE SAME BEING RELEVANT IN THE PRESE NT CONTEXT ARE REPRODUCED HEREUNDER:- 8. AFTER HEARING BOTH THE PARTIES AT LENGTH AND ON PERUSAL OF THE BULKY MATERIAL AVAILABLE ON RECORD, IT APPEARS THAT A NUMBER OF OPPORTUNITIES WERE GIVEN T O THE ASSESSEE AT LEAST AT THE STAGE OF REASSESSMENT AS DEMONSTRATED ABOVE. IT WAS CONCLUDED BY THE DEPARTM ENT THAT THE ASSESSEE THOUGH CLAIMED TO BE A COMMISSION S BUSINESS BUT IN FACT, THE ASSESSEE HIMSELF WAS INVO LVED IN THE BUSINESS OF NEWSPRINT UNDER THE NAME OF M/S. PA PER TRADING & INDUSTRIES. THE ASSESSEE HAS ANOTHER BUSI NESS IN THE NAME OF M/S. INDUSTRIAL PAPERS SHOWN TO BE OWNE D BY SHRI RAM BALAK SINGH WHO HAS THE SAME ADDRESS OF TH E ASSESSEE AND SHRI RAM BALAK SINGH WAS THE EMPLOYEE OF THE ASSESSEE. THE ASSESSEE HAS FAILED TO PROVE THAT SHR I RAM BALAK SINGH IS NOT HIS BENAMI BUSINESSPERSON. HE AL SO FAILED TO PRODUCE ANY EVIDENCE OR WRITTEN SUBMISSIO N IN THIS REGARD. AT THE RELEVANT TIME, THE NEWSPRINT WA S MUCH IN DEMAND WHICH WAS SOLD IN BLACK MARKET. THE ASSES SEE WAS ASKED TO PRODUCE THE BILL AND VOUCHERS IN RESPE CT OF EXPENSES, SPECIALLY ABOUT TRANSPORTATION, BUT NO EV IDENCE WAS PRODUCED PERTAINING TO THE EXPENSES WHICH WERE DEBITED IN THE ACCOUNTS AS WAS OBSERVED BY THE ASSE SSING OFFICER IN HIS REASSESSMENT ORDER AT PAGE 4. THE FA CT ALSO REMAINS THAT LETTER STAMPS, VARIOUS LETTER HEADS OF NEWSPRINT WERE FOUND IN THE PREMISES OF THE ASSESSE E WHICH LEAD TO THE CONCLUSION THAT THE ASSESSEE WAS IN CLANDESTINE/ SECRETE MANNER. NO EVIDENCE PERTAINING TO THE EXPENDITURE WERE SHOWN AFTER TAKING DELIVERY OF THE NEWSPRINTS FROM THE STATE TRADING CORPORATION AS TH E SAME OF CLANDESTINE BUSINESS STARTS. EXCEPT TWO PARTIES, NONE HAS CONFIRMED THE RECEIPT OF NEWSPRINT AND PAYMENT ETC. AS STATED ABOVE. IT IS INTERESTING THAT THE TOKEN CHEQ UE PAYMENT WAS SHOWN TOWARDS THE DELIVERY OF NEWSPRINT OF SEVERAL LAKHS OF RUPEES PERHAPS WHICH WAS NEVER DEL IVERED. SO-CALLED CONFIRMATION LETTERS WERE NEVER SUBMITTED IN ORIGINAL AND XEROX COPIES WERE SHOWN ON DIFFERENT D ATES WITH PURELY THE CASH FIGURE WITH NOT LEGIBLE SIGNAT URE, INCOMPLETE ADDRESS ETC. BY LOOKING TO THE OPPORTUNI TIES GIVEN BY THE ASSESSING OFFICER AT THE STATE OF REAS SESSMENT, M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 7 OF 9 WE ARE CONVINCED THAT PROPER AND SUFFICIENT OPPORTU NITIES WERE ALLOWED TO THE ASSESSEE. THE PLEA OF THE ASSES SEE IS NOT ACCEPTABLE THAT THE BOOKS OF ACCOUNT WERE SEIZE D FOR THE REASON THAT THE ASSESSEE MADE NO ATTEMPT TO GET AT LEAST THE XEROX COPIES OF THE SEIZED MATERIALS FROM THE DEPARTMENT. EVEN ON SPECIFIC QUERY FROM THE BENCH, THE AUTHORIZED REPRESENTATIVE FAILED TO PRODUCE A SINGL E LETTER REGARDING RELEASE OR HAVING THE PHOTOCOPIES OF THE SEIZED MATERIALS. 9. BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NO CASE ON MERITS AND THAT TO ABUSE TH E PROCEDURE OF LAW BE RAISED THE PLEA BEFORE THE FIRS T APPELLATE AUTHORITY AS WELL AS BEFORE US THAT NO PR OPER AND SUFFICIENT OPPORTUNITY WAS PROVIDED TO HIM. TO SUPP ORT IT, SHRI ASHOK KUMAR CHATTERJEE HAS FILED AN AFFIDAVIT DATED 4.1.2001 BY MENTIONING THAT HE WAS NOT PROPERLY HEA RD BY THE CIT(APPEALS). HOWEVER, WE ARE CONVINCED THAT TH E ASSESSING OFFICER HAS PROVIDED A NUMBER OF OPPORTUN ITIES TO THE ASSESSEE. THE ASSESSEE FAILED TO PRODUCE THE MATERIAL EVEN AFTER A LONG PERIOD. THOUGH THE ASSESSEE HAS N OT COME AT ANY STAGE, AGAINST THE SPECIFIC ADDITIONS MADE B Y THE ASSESSING OFFICER BUT HE HAS CHALLENGED THE WHOLE ASSESSMENT IN THE NAME OF PRINCIPLE OF NATURAL JUST ICE. BUT A PERSON CANNOT ALLOW TO TAKE ADVANTAGE OF HIS WRON G EXERCISE.. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE OF THE VIEW THAT IF WE RESTORE THE MATTER IN THE THIRD INN INGS, THE SAME WOULD BE TANTAMOUNT TO THE ABUSE OF LAW. THERE FORE, WE DECLINE TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITIES AND THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED ACCORDINGLY. 6. A PERUSAL OF THE RELEVANT PORTION OF THE TRIBUNA LS ORDER REPRODUCED ABOVE READ WITH PARAGRAPH NO. 5 CLEARLY SHOWS THAT NO SPECIFIC ARGUMENTS WERE RAISED BY THE ASSESSEE TO C HALLENGE THE ISSUES RELATING TO THE ADDITIONS MADE TO HIS TOTAL INCOME AND THE ONLY CONTENTION RAISED WAS THAT THE ENTIRE ASSESSMENT WAS LIABLE TO BE SET ASIDE ON THE GROUND THAT NO PROPER OPPORTUNITY WAS GIVEN TO HIM BY THE LOWER AUTHORITIES OF BEING HEARD. THE TRIBUNAL CONSIDERED THIS ISSUE IN PARAGRAPH NO. 8 OF ITS ORDER AND AFTER DISCUSSING A LL THE FACTS OF THE CASE RELEVANT TO THE ISSUE, DID NOT FIND MERIT IN THE PL EA OF THE ASSESSEE M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 8 OF 9 REGARDING VIOLATION OF PRINCIPLE OF NATURAL JUSTICE . AFTER REJECTING THIS PRELIMINARY ISSUE RAISED BY THE ASSESSEE, THE TRIBU NAL, AS RIGHTLY SUBMITTED BY THE LD. D.R., PROCEEDED FURTHER TO REN DER ITS DECISION EVEN ON MERIT AND HELD IN THIS CONTEXT THAT THE ASSESSEE HAD NO CASE ON MERIT ALSO. KEEPING IN VIEW THIS POSITION CLEARLY BORNE O UT FROM THE RECORD INCLUDING THE ORDER OF THE TRIBUNAL DATED 23.04.200 1, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUN AL AS ALLEGED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION. MOREOVER, AS RIGHTLY SUBMITTED BY THE LD. D.R., A SPECIFIC VIEW WAS EXPR ESSED BY THE TRIBUNAL ON ALL THE ISSUES RAISED BY THE ASSESSEE AND IT IS NOT PERMISSIBLE FOR THE TRIBUNAL TO REVIEW ITS DECISION UNDER SECTION 254(2 ). 7. IT IS ALSO OBSERVED THAT THE MISCELLANEOUS APPLI CATION BEING M.A. NO. 106/KOL/2002 WAS EARLIER FILED BY THE ASSESSEE AND THE SAME WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 31.1 2.2002 FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 2 OF ITS O RDER:- 2. WE HAVE CONSIDERED THE CONTENTS OF THE APPLICAT ION AND GONE THROUGH THE ORDER OF THE HONBLE TRIBUNAL DATED 23.04.2001. IT HAS BEEN STATED CLEARLY IN PARA 4 OF THE ORDER THAT THE CIT(APPEALS) HAD OFFERED NUMBER OF OPPORTUNITIES TO THE ASSESSEE FOR HEARING. BUT THE ASSESSMENT HAD TO BE MADE EX PARTE FOR CONTINUED NO N- COOPERATION. BEFORE THE TRIBUNAL WHAT WAS ARGUED BY THE AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE IS NOT THE INDIVIDUAL ADDITION BUT THE ENTIRE ASSESSMENT O N THE GROUND THAT PROPER OPPORTUNITY WAS NOT GIVEN BY THE AUTHORITIES BELOW. IN THIS VIEW OF THE THING, THE T RIBUNAL IN PARA 6 OF ITS ORDER POINTED OUT THAT AS MANY AS 8 OPPORTUNITIES WERE GIVEN BY THE ASSESSING OFFICER D URING THE REASSESSMENT STAGE. THE CIT(APPEALS) HAD ALSO G IVEN SUFFICIENT OPPORTUNITY OF HEARING, THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORDS IN THE ORDER PASS ED BY THE TRIBUNAL WHICH REQUIRES RECTIFICATION. IF THE A SSESSEES CONTENTIONS ARE ACCEPTED, THAT WILL AMOUNT TO REVIE W OF THE ORDER PASSED BY THE TRIBUNAL WHICH IS BEYOND THE SC OPE OF MISCELLANEOUS APPLICATION. THEREFORE, WE DECLINE TO INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL IN THIS REGARD AND REJECT THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE. M.A. NO. 110/KOL/2011 (IN M.A. NO. 106/KOL/2002) (ARISING OUT OF I.T.A. NO 2649/CAL./1997) ASSESSMENT YEAR: 1988-1989 PAGE 9 OF 9 IT IS MANIFEST FROM THE RELEVANT PORTION OF THE TRI BUNALS ORDER DATED 31.12.2002 PASSED IN M.A. NO. 106/KOL/2002 THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON THE SIMILAR PO INT HAS ALREADY BEEN REJECTED BY THE TRIBUNAL AND THE PRESENT MISCELLANE OUS APPLICATION FILED BY THE ASSESSEE ON THE SAME POINT IS NOT MAINTAINAB LE. WE, THEREFORE, FIND NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND DISMISS THE SAME. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 13, 2016. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 13 TH DAY OF MAY, 2016 COPIES TO : (1) SHRI UTTAM JAIN, L/R. OF LATE HEMRAJ BEGWANI, 10, GANESH CHANDRA AVENUE, KOLKATA-700 013 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-17(1), KOLKATA, (3) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA (4) THE DEPARTMENTAL REPRESENTATIVE (5) CIT(APPEALS)- , KOLKATA (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.