LATE MR LAKHPATRAJ AGARWAL THROUGH L/H SUNIL L AGARWAL, Pune V. Dy. CIT,Cent. Cir.-2(2), Pune

MA 117/PUN/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6730 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-05-2011
• Assessment Year: misc
• Appeal Filed On: 30-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

1 M.A.NO.117/PN/2010 LATE SHRI LAKHPATRAJ AGARWAK,LR BY SUNIL L.AGARWAL . IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C.SUDHIR, JM AND SHRI D. KARUNAKARA RAO, AM M.A.NO.117/PN/2010 (IN ITA NO.1138/PN/05 (BLOCK PD.1997-98 TO 2003-04) LATE SHRI LAKHPATRAJ AGARWA L , LR BY SUNIL L.AGARWAL, PUNE PAN AARPA6767F APPLLICANT VS. DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE . RESPONDENT APPLLICANT BY : SHRI NILESH KHANDELWAL RESPONDENT BY : SHRI V.ANANDRAJAN ORDER PER D. KARUNAKARA RAO, AM THE PRESENT MISCELLANEOUS APPLICATION ARISES FROM O UR ORDER DT. 18-2-2010 VIDE ITA NO.1138/PN/2005. 2. DURING THE PROCEEDINGS BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE MENTIONED THAT THERE ARE A COUPLE OF MISTAKES IN TH E SAID ORDER OF THE TRIBUNAL AND AS PER THE COUNSEL, THE FIRST ONE EMANATES FROM THE FINDINGS GIVEN IN PARA 13 OF HE SAID ORDER. ELABORATING THE SAME, THE LD.COUNSEL M ENTIONED THAT ISSUE OF A NOTICE VALIDLY WAS THE BONE OF CONTENTION AND THE TRIBUNAL HELD THE SAME IN FAVOUR OF THE REVENUE AND HELD THAT THE LAPSES ARE CURABLE U/S 29 2B OF THE ACT. IN THIS CASE, NOTICE WAS ISSUED U/S 143(2) OF THE INCOME TAX ACT, 1961 ( THE ACT) IN THE NAME OF SHRI SUNIL AGARWAL AND AS PER THE TRIBUNAL, THE SAID NOT ICE WAS MEANT FOR SUNIL AGARWAL 2 M.A.NO.117/PN/2010 LATE SHRI LAKHPATRAJ AGARWAK,LR BY SUNIL L.AGARWAL . IN REPRESENTATIVE CAPACITY OF LATE L.K.AGARWAL IN T HE LIGHT OF THE MUTATIONS MADE BY THE ASSESSING OFFICER WITH THE KNOWLEDGE OF THE ASS ESSEE DURING THE ASSESSMENT PROCEEDINGS. THE TRIBUNAL VIDE THE SAID PARA 13 HEL D THAT THE MUTATIONS MADE TO THE NOTICE SHALL FALL UNDER THE AMBIT OF CURABLE DEFECT S LISTED IN THE PROVISIONS OF SECTION 292B OF THE ACT. IN THIS REGARD, REFERRING TO PARA 13 OF THE ORDER, THE LD.COUNSEL FOR THE ASSESSEE MENTIONED THE PRESENT COUNSEL SHRI NIL ESH KHANDELWAL WAS NOT PRESENT DURING THE ASSESSMENT PROCEEDINGS AS THE THEN AUTHO RISED COUNSEL AT THAT POINT OF TIME FOR THE ASSESSEE WAS SHRI R.G.BHILARE AND SHRI SUNIL KUMAR AGARWAL APPEARED PERSONALLY BEFORE THE ASSESSING OFFICER. THEREFORE , THE QUESTION OF SHRI KHANDELWAL NOT DISPUTING THE CHANGES MADE BY THE ASSESSING OFF ICER ON THE IMPUGNED NOTICE DOES NOT ARISE AND THEREFORE, ASSESSEE OF HIS REPRE SENTATIVE UNDISPUTING THE FACT OF MAKING OF CORRECTIONS BY THE AO ON THE COPY OF THE NOTICE U/S 143(2) ALSO DOES NOT ARISE. 3. PER CONTRA, LD DR FOR THE REVENUE STATED THAT SO LONG AS THE CH ANGES ARE MADE BY THE ASSESSING OFFICER WITH THE KNOWLEDGE OF ASSESSEE OR HIS LEGAL HEIR OR THE AUTHORISED REPRESENTATIVE IN A BONA FIDE BELIEF, IT DOES NOT MAKE ANY DIFFERENCE SO FAR AS THE FINAL FINDING OF THE TRIBUNAL GIVEN IN P ARA 15 OF THE SAID ORDER OF THE TRIBUNAL. DR ARGUED VEHEMENTLY STATING THAT THE ALL EGED CORRECTIONS MADE BY THE AO ON THE ADDRESS PORTION OF THE SAID NOTICE ARE CURAB LE U/S 292B OF THE ACT AS HELD BY THE TRIBUNAL. SO LONG THEY ARE CURABLE, MAKING OF T HE AMENDMENTS ON THE NOTICE SUE MOTTO BY THE AO OR AT THE PROMPT OF THE ASSESSEE/LE GAL HEIR/HIS REPRESENTATIVE IS NOT A RELEVANT FACTOR. THEREFORE, DR IS OF THE OPINION, THERE IS NO MISTAKE APPARENT FROM THE RECORDS. 4. WE HAVE CONSIDERED THE PRAYER OF THE ASSESSEE AN D ALSO THE ARGUMENTS OF THE LD. DR. ON CONSIDERING THE SAID DIVERGENT CONTENTI ONS OF THE PARTIES, WE CLARIFY THAT THE ASSESSEES COUNSEL DURING THE ASSESSMENT PROCEE DINGS SHOULD BE READ TO INCLUDE THE PERSON WHOEVER WAS PRESENT AND REPRESENTED THE CASE DURING THE ASSESSMENT PROCEEDINGS. THE OTHER OBJECTIONS OF THE ASSESSEE S COUNSEL RAISED BEFORE US AND IN 3 M.A.NO.117/PN/2010 LATE SHRI LAKHPATRAJ AGARWAK,LR BY SUNIL L.AGARWAL . THIS MISCELLANEOUS APPLICATION TO A SENTENCE USED I N THE SAID PARA 13 I.E. THIS FACT WAS NOT DISPUTED BY THE ASSESSEES COUNSEL, IT IS TO CLARIFY THAT IT SHALL MEAN THAT LD COUNSEL FOR THE ASSESSEE BEFORE US COULD NOT DEMONS TRATE THAT THE IMPUGNED NOTICE WAS NOT MUTATED BY THE AO IN THE PRESENCE OF THE AS SESSEE/THE LEGAL HEIR OR HIS THEN REPRESENTATIVE, WHO APPEARED DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, MAKING MUTATIONS WITH THE KNOWLEDGE OF THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS IS A CORE INFORMATION AND THE TRIBUNAL HAS COME TO THE CONCLUSION THAT ALLEGED CHANGES WERE DONE BY THE AO WITH BONA FIDE BELIEF. THE ABSENCE OF ANALOGOUS MUTATION ON THE ASSESSEES COPY OF THE SA ID NOTICE DOES NOT ESTABLISH THE ALLEGED MALA FIDE OF THE REVENUE. AO EXPLAINED BEF ORE US THAT THE SAID CHANGES WERE NOT DONE ON THE ASSESSEES COPY AS THE PERSON PRESENT AT THAT POINT OF TIME BEFORE THE AO WAS NOT IN POSSESSION OF THE SAID COP Y OF THE NOTICE AT THAT POINT OF TIME. THE TRIBUNAL ACCEPTED THIS VERSION OF THE AO, WHO WAS PRESENT BEFORE US AS THE GOVERNMENT RECORDS SHOULD BE ACCEPTED AS BONA F IDE UNLESS THEY ARE PROVED OTHERWISE. AS SUCH, THE ONUS IS ON THE ASSESSEE WH O IS MAKING ALLEGATIONS TO DEMONSTRATE THAT AO MADE CORRECTION AT THE BACK OF THE ASSESSEE AND WITH MALA FIDE INTENTION. THUS, THIS IS A CASE WHERE THE ASSESSIN G OFFICER INSERTED CORRECTIONS IN THE ADDRESS PORTION OF THE NOTICE WITH THE KNOWLEDGE OF THE ASSESSEE, WHICH INCLUDES LEGAL HEIR OR AUTHORIZED REPRESENTATIVE. THE INADEQ UACIES IN THE ADDRESS PORTION OF THE NOTICE AND THE MUTATIONS MADE BY THE ASSESSING OFFICER FALL IN THE AMBIT OF CURABLE DEFECTS U/S 292B OF THE ACT AS HELD BY US I N PARAGRAPHS 14 TO 15 OF THE SAID ORDER. AFFIDAVITS FILED DURING THE MA PROCEEDINGS C ONSTITUTES ADDITIONAL EVIDENCE WHICH WERE NOT AVAILABLE AT THE TIME OF MAKING OF T HE IMPUGNED ORDER OF THE TRIBUNAL HAVE TO BE HELD AS UNADMITTED. THEREFORE T HE PRAYER OF THE ASSESSEES COUNSEL MADE IN THE MISCELLANEOUS APPLICATION IS HE REBY DISMISSED . 5. THE OTHER ISSUE WHERE THE ASSESSEE SEEKS RECTIFI CATION RELATES TO THE WORDS AND THE REASONING GIVEN B THE TRIBUNAL RELATING TO THE REQUIREMENT OF ISSUE OF TWO NOTICES OF IDENTICAL DATES. IN THIS REGARD, THE AS SESSEES COUNSEL MENTIONED THAT THE SAID QUERY WAS NOT RAISED DURING THE ASSESSMENT PRO CEEDINGS. THEREFORE, THE SAID 4 M.A.NO.117/PN/2010 LATE SHRI LAKHPATRAJ AGARWAK,LR BY SUNIL L.AGARWAL . REASONING REQUIRES TO BE AMENDED. PER CONTRA, THE L EARNED DEPARTMENTAL REPRESENTATIVE ARGUED THAT THE DISCUSSION GIVEN IN PAGE 3 OF THE MISCELLANEOUS APPLICATION CONSTITUTES THE WELL REASONED AND THOUG HT ORIENTED DISCUSSION, WHICH HELPED THE TRIBUNAL TO ARRIVE AT A DECISION ON THE ISSUE AND IN THAT CASE, THE REASONING OF THE TRIBUNAL SHOULD BE OUTSIDE THE SCO PE OF THE RECTIFICATION AS IT ONLY QUESTION OF THE DISCUSSION GIVEN IN THE ORDER OF TH E TRIBUNAL. WE HAVE HEARD THE PARTIES AND PERUSED THE RELEVANT PARTS IN THE MA. W E FIND THAT THE DISCUSSION PRESENTED IN THE MA IS HYPOTHETICAL SITUATION AND T HE ASSESSEE HAS FAILED TO SEE THE POINT INVOLVED IN THE REASONING GIVEN BY THE TRIBUN AL. WE PROCEED TO DISMISS THE SAME AS ABSTRACT AND WITHOUT ANY CLEAR POINT OF MIS TAKE APPARENT FROM RECORDS. THEREFORE, WE DISMISS THIS PART OF THE PRAYER TOO. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON -7-2011. (IC SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE, DATED THE JULY, 2011 *VNR COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEES AS MENTIONED IN THE CAUSE TITLE 2. DY.CIT, CENTRAL CIRCLE 2(2), PUNE. 3. CIT (A)-I, PUNE. 4. CIT CONCERNED, 5. D.R. ITAT B BENCH, PUNE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR 5 M.A.NO.117/PN/2010 LATE SHRI LAKHPATRAJ AGARWAK,LR BY SUNIL L.AGARWAL . I.T.A.T PUNE