ITO 1(3), V. NAZNEEN SAGIR DONA,

MA 125/MUM/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9862 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-08-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 27-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRANAV M PHADKE
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI D. MANMOHAN (VICE-PRESIDENT) AND SHRI N.K. BILLAIYA (ACCOUNTANT MEMBER) M.A. NOS. 377 TO 382/MUM/2010 (ARISING OUT OF ITA NOS. 4926 TO 4931/MUM/2008 DT. 2.4.2009) ASSESSMENT YEARS: 1999-2000 TO 2004-05 MRS. NAZNEEN SAGIR DOND, 214, 4 TH NIZAPURA, BHIWANDI DIST. THANE-421 302 PAN: ADNPD 2680D VS. THE DCIT, CENTRAL CIRCLE-2, THANE (APPLICANT) (RESPONDENT) M.A. NOS. 125 TO 130/MUM/2012 & M.A. NO. 512/MUM/20 11 (ARISING OUT OF ITA NOS. 4926 TO 4931/MUM/2008 DT. 26.11.2010) ASSESSMENT YEARS: 1999-2000 TO 2004-05 THE ITO, WARD 1(3), KALYAN VS. MRS. NAZNEEN SAGIR DOND, 214, 4 TH NIZAPURA, BHIWANDI DIST. THANE-421 302 (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI PRANAV M. PHADKE RESPONDENT BY: SHRI MOHIT JAIN DATE OF HEARING: 12.10.2012 DATE OF PRONOUNCEMENT: 09.01.2013 O R D E R PER N.K. BILLAIYA (AM): THESE ARE 13 MISCELLANEOUS APPLICATIONS DIRECTED A GAINST THE ORDERS PASSED BY THE TRIBUNAL SMC BENCHES IN ITA NOS. 4926 TO 4931 /MUM/2008. THE ASSESSEE FILED MISCELLANEOUS APPLICATIONS SEEKING RECALL OF THE OR DERS PASSED ON 2.4.2009 WHEREAS REVENUE FILED MISCELLANEOUS APPLICATIONS SEEKING RE CALL OF THE COMMON ORDER DT. 26.11.2010. MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 2 2. BRIEF FACTS GIVING RISE TO THE DISPOSAL OF THE A PPEALS ORIGINALLY ON 2.4.2009 ARE AS FOLLOWS. ALL THESE APPEALS WERE ADMITTEDLY BARRE D BY LIMITATION BY 58 DAYS AND THERE WAS ALSO SHORT PAYMENT OF FEES. ALL THESE AP PEALS ARE POSTED FOR HEARING ON 26 TH MARCH, 2009. WHILE DISMISSING THE APPEAL, THE TRI BUNAL AT PARA-4 PAGE-2 HELD AS UNDER: THE ASSESSEE SHALL, HOWEVER, BE AT LIBERTY TO REQU EST FOR RECALLING OF THE ORDER, IF PREVENTED BY SUFFICIENT CAUSE FROM AP PEARANCE ON THE DATE OF HEARING AND ALSO ON RECTIFICATION OF THE DE FECTS POINTED OUT BY THE REGISTRY IN THE DEFECT MEMO. 3. SUBSEQUENT TO THE ORDER, THE ASSESSEE PAID BALAN CE INSTITUTION FEES AND ALSO FILED AN AFFIDAVIT DT. 18.4.2009 EXPLAINING THE REA SONS FOR THE DELAY. HOWEVER, AFTER RECTIFYING THE DEFECTS POINTED OUT BY THE REGISTRY, THE ASSESSEE MOVED A COMBINED M.A FOR ALL THE ASSESSMENT YEARS WHEREIN A REQUEST WAS MADE TO RECALL THE EARLIER ORDER. THIS MA WAS NUMBERED M.A.NO. 395/MUM/2009. WHEN THIS M.A. WAS POSTED FOR HEARING BEFORE THE TRIBUNAL, THE TRIBUNAL NOTIC ED THAT THE ASSESSEE HAS PAID INSTITUTION FEES OF RS. 50/- FOR THE ASSESSMENT YEA R 2005-06, THOUGH THE IMPUGNED APPELLATE ORDER DT. 2.4.2009 IS IN RESPECT OF ASSES SMENT YEARS 1999-2000 TO 2004- 05. ACCORDINGLY, THE BENCH POINTED OUT THAT THE M. A. CANNOT BE ENTERTAINED AS SEPARATE M.AS HAVE TO BE FILED FOR THE RELEVANT ASS ESSMENT YEARS AND ACCORDINGLY REFIXED THE SAME ON 4.12.2009. THEREAFTER THE CASE WAS ADJOURNED FROM TIME TO TIME AND ON 16.6.2010, THE ASSESSEE FILED SEPARATE M.AS FOR EACH YEAR WHICH ARE BEFORE US. 4. HOWEVER, THE ORIGINAL M.A, PURPORTEDLY DEFECTIVE BEARING NO. 395/MUM/2009 WAS KEPT ON POSTED FOR HEARING FROM TIME TO TIME. SURPRISINGLY, THE BENCH HEARD THE M.A. NO. 395/MUM/2009 ON 1.10.2010 AND IN ITS WISDO M JUST TO RECALL THE EX PARTE ORDER PASSED BY THE TRIBUNAL DT. 2.4.2009. AFTER RE CALLING THE COMMON ORDER PURSUANT TO THE ORDER PASSED IN M.A. NO. 395/M/09 F ILED BY THE ASSESSEE, THE APPEAL OF THE ASSESSEE WAS POSTED FOR HEARING BEFORE THE S MC BENCH. THE TRIBUNAL DISPOSED OF THE APPEAL. MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 3 5. THE ORDER PASSED BY THE SMC BENCH ON 26.11.2010 IS THE SUBJECT MATTER OF CHALLENGE BEFORE US WHEREIN THE APPLICANT (ITO WARD -1(3), KALYAN) CONTENDED THAT THE TRIBUNAL OUGHT NOT HAVE RECALLED THAT THE ORIGI NAL ORDER DT. 2.4.2009 BASED ON INVALID M.A., WHICH WAS NUMBERED AS M.A. 395/M/09, AND THUS THE CONSEQUENTIAL ORDER DT. 26.11.2010 BECOMES INVALID AND DESERVES TO BE RECALLED. 6. IT IS NOT OUT OF PLACE TO MENTION HERE THAT 6 SEP ARATE M.AS FILED BY THE ASSESSEE WERE PLACED BEFORE THE BENCH ON 4.3.2011 AND EVEN AT THAT STAGE THE REPRESENTATIVE APPEARING FOR THE REVENUE DID NOT BR ING TO THE NOTICE OF THE BENCH THE ABOVE MENTIONED FACTS. THE LD. COUNSEL FOR TH E ASSESSEE WAS ABSENT. THEREFORE THE BENCH INTENDED TO DISMISS THE M.AS FO R WANT OF APPEARANCE ON THE PART OF THE ASSESSEE AND ACCORDINGLY TREATED THE MA TTER AS HEARD. THE LD. COUNSEL FOR THE ASSESSEE THEREAFTER APPROACHED THE BENCH TO SUBMIT THAT DUE TO DELAY IN COMMUNICATION HE COULD NOT PRESENT HIMSELF IN COURT ON TIME AND REQUESTED TO REFIX THE M.AS AND ACCORDINGLY THE CASE WAS REFIXED ON 29 .4.2011. AT THAT STAGE , THE BENCH NOTICED THAT DEFECTIVE M.A WAS TAKEN UP BY TH E EARLIER BENCH TO RECALL ALL THE SIX APPEALS, DISPOSED OF BY A COMBINED ORDER, WHERE AS THE 6 M.AS FILED, AS PER THE PROCEDURE PRESCRIBED, WERE STILL KEPT PENDING. SIN CE THE BENCH WAS OF THE PRIMA FACIE VIEW THAT THE ORDER PASSED ON M.A NO. 395/M/0 9 AND THE CONSEQUENTIAL ORDER PASSED BY THE TRIBUNAL IN ITA NOS. 4926 TO 4931/MUM /2008 DO NOT HAVE ANY SANCTION OF LAW BUT AT THE SAME TIME SINCE THE CO- ORDINATE BENCH HAVING PASSED AN ORDER AGAINST M.A. NO. 395/M/09 AND A CONSEQUENTIAL ORDER WAS PASSED BY A CO- ORDINATE BENCH AND APPEALS WERE HEARD BY SMC BENCH, BASED UPON SUCH RECALL, THE BENCH SOUGHT TO PLACE THE MATTER BEFORE THE HONBLE PRESIDENT AND ACCORDINGLY RECORDED ITS VIEW IN THE ORDER SHEET NOTING DT. 29. 4.2011, WHICH READS AS UNDER: 1. MA.NOS. 377 TO 382/MUM/2010 (SIX APPLICATIONS) WERE PLACED BY THE REGISTRY BEFORE US. THESE MAS ARISE OUT OF THE COMM ON ORDER DATED 2ND APRIL, 2009 PASSED BY THE ITAT, SMC BENCH, MUMBAI I N ITA. NOS. 4926 TO 4931/MUM/2008. ALL THESE APPEALS WERE ADMITTEDLY BARRED BY LIMITATION BY 58 DAYS AND THERE WAS SHORT PAYMENT O F FEES. IN THE ACKNOWLEDGMENT CUM- NOTICE ISSUED ON 5-8-2008 THE REGISTRY POINTED MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 4 OUT THE DEFECTS IN THE APPEALS AND DIRECTED THE PAR TY TO RECTIFY THE DEFECTS WITHIN 10 DAYS. THOUGH THE DEFECTS WERE POINTED OUT IN THE ACKNOWLEDGMENTCUM-NOTICE DATED 5-8-2008 ,ASSESSEE DID NOT CHOOSE TO RECTIFY THE DEFECTS, BY GIVING AN EXPLANATION WITH REGARD TO DELAY IN FILING THE APPEALS AND ASSESSEE HAD NOT CHOSEN TO MAKE GOO D THE SHORT PAYMENT OF INSTITUTION FEES. WHEN THESE APPEALS WERE POSTED FOR HEARING ON 26-3- 2009, NONE APPEARED ON BEHALF OF THE ASSESSEE. CONS IDERING THE CIRCUMSTANCES OF THE CASE, THE APPEALS WERE HEARD E XPARTE, QUA THE ASSESSEE, WHEREIN THEN HONBLE VICE PRESIDENT, CONS TITUTING THE SMC BENCH, OBSERVED THAT THE ASSESSEE HAD NOT SHOWN ANY INTEREST IN PROSECUTING THE APPEALS AND THE APPEALS WERE ALSO B ARRED BY LIMITATION APART FROM THE FACT THAT THERE WAS SHORT PAYMENT OF APPEAL FEES. HE, THEREFORE, DISMISSED THE APPEALS AS BARRED BY LIMIT ATION MEANING THEREBY THAT THE APPEALS WERE NOT ADMITTED FOR HEARING. SUB SEQUENT TO THE ORDER DATED 12TH APRIL, 2009 ASSESSEE PAID BALANCE OF INS TITUTION FEES ON 15-7- 2009 AND ALSO FILED AN AFFIDAVIT DATED 18-4-2009 EX PLAINING THE REASONS FOR THE DELAY. SINCE THE DEFECTS POINTED OUT BY THE REGISTRY WERE NOW SOUGHT TO BE RECTIFIED, ASSESSEE MOVED A COMBINED M ISCELLANEOUS APPLICATION FOR ALL THE ASSESSMENT YEARS WHEREIN A REQUEST WAS MADE TO RECALL THE EARLIER ORDER. THIS MA WAS NUMBERED AS M .A.395/MUM/2009. THIS APPLICATION WAS PLACED BEFORE THE FOLLOWING ME MBERS TO DISPOSE OF THE M.A. SINCE HONBLE VICE PRESIDENT WHO CONSTITUT ED THE SMC BENCH RETIRED IN THE MEANTIME. THE CASE WAS HEARD ON 6-11-2009. IMMEDIATELY THEREA FTER THE BENCH NOTICED THAT THE ASSESSEE PAID ONLY RS.50/- F OR THE ASSESSMENT YEAR 2005-2006 INSTEAD OF MAKING PAYMENT SEPARATELY FOR THE ASSESSMENT YEARS 1999-2000 TO 2004-2005. PAYMENT OF INSTITUTIO N FEES OF RS.50/- FOR THE ASSESSMENT YEAR 2005-2006 IS AVAILABLE ON RECOR D. IT IS ALSO NOT IN DISPUTE THAT THE IMPUGNED APPELLATE ORDER DATED 2ND APRIL, 2009 IS IN RESPECT OF THE ASSESSMENT YEAR 1999-2000 TO 2004-20 05 AND IT IS NOT CONNECTED TO THE ASSESSMENT YEAR 2005-2006. THE BEN CH NOTICED THAT THE M.A. CANNOT BE ENTERTAINED AND SEPARATE M.AS. HAVE TO BE FILED FOR THE CONCERNED ASSESSMENT YEARS AND ACCORDINGLY RELEASED THE M.A. AND RE- FIXED THE SAME ON 4-12-2009. THEREAFTER, THE CASE W AS ADJOURNED FROM TIME TO TIME AND ON16/06/2010 ASSESSEE REALISED THE MISTAKE AND FILED SEPARATE M.AS. FOR EACH YEAR WHICH WERE NUMBERED AS M.A.NO. 377 TO 382/MUM/2010. THIS CLARIFIES THE POSITION THAT THE ASSESSEE AS WELL AS THE BENCH UNDERSTOOD THAT THE EARLIER M.A. IS NOT IN AC CORDANCE WITH LAW FOR TWO REASONS I.E., (A) THE INSTITUTION FEES IS PAID FOR THE ASSESSMENT YEAR 2005-2006 AND NOT FOR THE ASSESSMENT YEARS UNDER CO NSIDERATION AND (B) SEPARATE M.AS. AND INSTITUTION FEE WERE NOT FILED F OR EACH OF THE MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 5 ASSESSMENT YEAR. FOR THE REASONS BEST KNOWN TO THE REGISTRY, THESE M.AS WERE NEVER PLACED BEFORE THE VICE PRESIDENT FOR NOM INATING OF THE MEMBERS TILL 18.12.2011. IT IS NOT OUT OF PLACE TO MENTION THAT BEFORE POSTING THESE MAS., OLD/DEFECTIVE/INVALID MA I.E., M.A.395/M/09 WAS POSTED FOR HEARING FROM TIME TO TIME WITHOUT APPARE NTLY BRINGING TO THE NOTICE OF THE BENCH THAT SEPARATE M.AS WERE FILED B Y THE PARTY IMPLIEDLY ADMITTING THAT M.A.395/MUM/2009 IS NOT A VALID M.A. THE BENCH ADJOURNED M.A.395/MUM/2009 FROM TIME TO T IME AND FINALLY HEARD THE M.A. ON 1.10.2010 ON WHICH DATE I T CHOSE TO RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL ON THE GROUND THAT THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE OF THE ASSESSEE OR HER AUTHORISED REPRESENTATIVE. AT THE COST OF REPETITION IT MAY BE NOTICED THAT THE EARLIER ORDER OF THE TRIBUNAL WAS DISMISSED NOT ONLY FOR WA NT OF PROSECUTION BUT ALSO BECAUSE IT WAS BARRED BY LIMITATION AND THERE WAS SHORT PAYMENT OF APPEAL FEES AND ACCORDINGLY, APPEALS CANNOT BE SAID TO HAVE BEEN ADMITTED. WHERE AN APPEAL IS NOT ADMITTED, IT CAN B E ARGUED THAT THE SAME CANNOT BE RECALLED SINCE NO VALID APPEAL IS STATED TO BE PENDING/DISPOSED OF BY THE TRIBUNAL TO ENABLE THE BENCH TO RECALL. UPON RECALLING OF THE COMMON ORDER PURSUANT TO THE ORDER PASSED IN M.A. NO. 395/MUM/09, FILED BY THE ASSESSEE, THE APPEALS WERE PLACED BEFORE THE SMC BENCH FOR REGULAR HEARING ON 22-1 1- 20 10 ON WHICH DATE APPEALS WERE DISPOSED OF UNDER THE IMPRESSION THAT THE EARLIER ORDER OF THE TRIBUNAL WAS VALIDLY RECALLED BY THE BENCH SINC E EVEN AT THAT POINT OF TIME THE REGISTRY HAS NOT BROUGHT TO THE NOTICE OF THE BENCH ABOUT THE SUBSEQUENT M.A FILED BY THE PARTY. EVEN THE A.R. OF THE ASSESSEE OR THE DEPARTMENTAL REPRESENTATIVE APPEARS TO HAVE NOT BRO UGHT TO THE NOTICE OF THE BENCH THE HISTORY OF THE M.A. AS STATED HEREINA BOVE. UPON DISPOSAL OF THE APPEALS VIDE ORDER DATED 26/11/2010, THE PRESEN T SET OF M.AS WERE PLACED BEFORE US FOR DISPOSAL. IN THE BACK DROP OF THESE FACTS THE QUESTIONS THAT REQUIRE CONSIDERATION ARE (A) WHETHER THE M.A. FILED ON 3-6 -2009 IS VALID IN LAW SINCE INSTITUTION FEES WAS PAID FOR THE ASSESSMENT YEAR 2005-2006 AND THE SAME WAS NOTICED BY THE BENCH VIDE ORDER SHEET DATE D 6-11- 2009. (B) WHEN ASSESSEE DID NOT PAY SEPARATE INSTITUTION FEE IN MA.395/M/09 (BUT FILED SEPARATE MAS. ALONG WITH INSTITUTION FEE IN E ACH MA., OBVIOUSLY THEY WERE NOT PLACED ON RECORD OF MA 395/M/09, BY TREATI NG THEM AS INDEPENDENT MAS. AND NUMBERED ACCORDINGLY) WHICH IN EFFECT MEANS THAT THE CAUSE SHOWN FOR RELEASE OF MA NO. 395/M/09 ON 6 .11.2009 WAS NOT RECTIFIED IN WHICH EVENT, WHETHER THE BENCH WAS JUS TIFIED IN IGNORING THEIR EARLIER REASON TO PROCEED TO DISPOSE OF AN INVALID/ DEFECTIVE MA? (C) WHEN MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 6 APPEALS ARE DISMISSED ON THE GROUND THAT THEY WERE FILED BEYOND THE PERIOD OF LIMITATION AND ALSO ON ACCOUNT OF THE FAC T THAT THE DEFECT MEMOS WERE NOT COMPLIED WITH, CAN A VALID APPEAL BE SAID TO HAVE BEEN PENDING WHICH CAN BE RECALLED MERELY BECAUSE THERE IS A JUS TIFIABLE REASON FOR NON-APPEARANCE ON THE DATE FIXED FOR HEARING. THE MATTER REQUIRES DETAILED CONSIDERATION ON THE A BOVE AS WELL AS OTHER PERIPHERAL ISSUES AND HENCE AT THE REQUEST OF BOTH THE PARTIES M.AS ARE ADJOURNED TO 8TH JULY, 2011. PARTIES ARE INFORM ED. THE ORDER SHEET NOTING ALONG WITH THE FILES MAY BE PLACED BEFORE THE HONBLE PRESIDENT FOR HIS KIND INFORMATION ABOU T THE SERIOUS LAPSES COMMITTED BY THE REGISTRY. SD/- SD/- (R.K. PANDA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESI DENT 7. THE HONBLE PRESIDENT WAS HOWEVER OF THE OPINION THAT THE BENCH, BEFORE WHOM THE 6 M.AS WERE LISTED FOR HEARING, CAN TAKE A N APPROPRIATE DECISION IN THE MATTER AS PER LAW. THUS THE M.AS WERE AGAIN LISTED FOR HEARING BEFORE US. NUMBER OF ADJOURNMENTS WERE TAKEN EITHER BY THE ASSESSEES COUNSEL OR BY THE DEPARTMENTAL REPRESENTATIVE FOR SOME REASON OR THE OTHER. ON 30 .12.2011, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT 6 M.AS WERE FILED BY THE ITO, WARD-1(3), KALYAN ON 20.11.2011 WHEREIN IT WAS CONTENDED THAT THE ORDER DT. 22.10.2010, PASSED IN M.A. NO. 395/MUM/2011, BEING INVALID, THE ORDER PASSED B Y THE SMC BENCH ON 26.11.2010 IS ALSO NOT IN ACCORDANCE WITH LAW AND R EQUIRED TO BE RECALLED. THE PRECISE GROUNDS IN THE M.AS ARE AS UNDER: AFTER PERUSAL OF THE CASE RECORDS, ABOVE MENTIONED HONBLE ITATS ORDERS (I.E. IN MA. NO. 395/M/09) DT. 22.10.2010 AND ITATS ORDE R (I.E. IN THE ITA NOS. 4926 TO 4931/M/08) DT. 26.11.2010, IT IS SEEN THAT HONBLE ITATS ORDER DT. 22.10.2010 AND ITS SUBSEQUENT ORDER DT. 26.11.2010 ARE INVALID ORDERS IN VIEW OF FOLLOWING OBSERVATION: 1. THE HONBLE ITAT HAS PASSED THE ORDER DT. 22.10.201 0 CONSIDERING THE DEFECTIVE M.A. NO. 395/M/09, ALLOWED THE M.A OF THE ASSESSEE AND DIRECTED TO RECALL EARLIER EXPARTE ORDER DT. 2.4.20 09 PASSED BY THE ITAT. MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 7 2. SUBSEQUENTLY, ITAT BENCH SMC VIDE ITS ORDER DT. 2 6.11.2010, IN THE APPEALS FILED BY THE ASSESSEE BEARING NO. ITA NO. 4 926 TO 4931/M/2008, AND IN VIEW OF THE ORDER DT. 22.10.2010, HAS RECALL ED THE EARLIER EXPARTE ORDER (I.E. IN THE ITA NOS. 4926 TO 4931/M/08) DT. 2.4.2009 PASSED BY THE HONBLE ITAT. SINCE THE M.A. NO. 395 WAS DEFECTIVE AND INVALID, T HE ORDER DT. 22.10.2010 AND 26.11.2010 WOULD BE INVALID BECAUSE THOSE HAVE BEEN PASSED BASED ON DEFECTIVE M.A. NO. 395 AND WITHOUT CONSIDERING R ECTIFIED FRESH MAS BEARING NO. 377 TO 382. 3. THEREFORE IT IS REQUESTED THAT ORDERS DT. 22.10.201 0 AND DT. 26.11.2010 MAY BE RECALLED BEING INVALID ORDERS. 8. THE BENCH DIRECTED THE REGISTRY TO CLUB THESE M. AS ALONGWITH THE M.AS, FILED BY THE ASSESSEE AND ACCORDINGLY ALL THE M.AS WERE C LUBBED AND POSTED FOR HEARING FROM TIME TO TIME AND FINALLY THEY WERE HEARD ON 12 .10.2012. 9. IN ORDER TO CONSIDER THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE, IT IS NECESSARY TO FIRST DISPOSE OF THE M.AS FILED BY THE REVENUE. IT MAY BE NOTED THAT AS THING STANDS TODAY THE ORIGINAL ORDER PASSED BY THE ITAT ON 2.4.2009 NO LONGER SUBSISTS IN THE LIGHT OF THE ORDER PASSED BY THE DI VISIONAL BENCH IN M.A. NO. 395/MUM/2009. HOWEVER, THE FACT REMAINS THAT THE O RDER PASSED IN M.A. NO. 395/M/09 AS WELL AS THE CONSEQUENTIAL ORDER PASSED BY ITAT ON 26.11.2010 IS UNDER CHALLENGE BEFORE US BY WAY OF M.AS. WHICH ARE NUMBE RED AS M.A. NOS. 125 TO 130/MUM/2011 AND M.A. NO. 512/MUM/2011. IT IS NECE SSARY TO NOTICE HERE THAT EVEN THE REVENUE HAD COMMITTED A SIMILAR MISTAKE OF FILING ONE CONSOLIDATED M.A WHICH WAS NUMBERED AS M.A. NO. 512/M/2011. THEREAFT ER THE REVENUE HAS REALISED THE MISTAKE OF NOT FILING SEPARATE M.AS AND ACCORDI NGLY FILED FRESH M.AS ON 27.2.2012 WHICH WERE ALSO CLUBBED AND POSTED BEFORE US. 10. ALL THESE APPLICATIONS WERE POSTED FOR HEARING. WE HAVE HEARD THE LD. COUNSEL APPEARING FOR THE ASSESSEE AS WELL AS LD. D EPARTMENTAL REPRESENTATIVE. THE CASE OF THE REVENUE IS THAT THE ORIGINAL ORDER DT. 2.4.2009 PASSED BY THE SMC BENCH COULD NOT HAVE BEEN RECALLED WHEN THE APPLICA TIONS SEEKING RECALL IS INVALID APPLICATION. IN OTHER WORDS, EACH YEAR THERE IS A SEPARATE APPEAL AND MERELY MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 8 BECAUSE THE APPEALS ARE CONSOLIDATED FOR PASSING AN ORDER, IT DOES NOT ENTITLE THE PARTIES TO FILE ONE CONSOLIDATED M.A. WITHOUT PAYME NT OF SEPARATE INSTITUTION FEES FOR EACH YEAR AND FOR EACH APPEAL. IN FACT THIS WAS BRO UGHT TO THE NOTICE OF THE PARTIES BY THE DIVISION BENCH WHICH WAS SEIZED OF THE MATTE R (M.A. NO. 395/M/09) AND THE PARTIES HAVING AGREED WITH REGARD TO THE CORRECT PR OCEDURE, SEPARATE M.AS WERE FILED FOR EACH YEAR WHICH WERE NUMBERED M.A. NOS. 3 77 TO 382/MUM/2010. UNDER THESE PECULIAR FACTUAL MATRIX, THE ORDER DT. 2.4.20 09 PASSED BY SMC BENCH COULD NOT HAVE BEEN RECALLED ON THE STRENGTH OF ONE CONSOLIDA TED M.A. FILED BY THE ASSESSEE AND CONSEQUENTLY ANY SUBSEQUENT ORDER PASSED BY SMC BENCH, WHILE REHEARING THE APPEALS, IS A NULLITY IN THE EYE OF LAW. 11. ON THE OTHER HAND, THE CASE OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT IT IS A PROCEDURAL MISTAKE WHICH WAS RECTIFIED SUBSEQUENTLY . HOWEVER, THE FACT REMAINS THAT THE DIVISION BENCH ACTED UPON THE CONSOLIDATED MISCELLANEOUS APPLICATION AND RECALLED THE EARLIER ORDERS PASSED BY THE TRIBUNAL AND HENCE THE PRESENT M.AS. FILED BY THE ASSESSEE NEED NOT BE CONSIDERED, BEING ACADE MIC IN NATURE. IT WAS ALSO SUBMITTED THAT IF THE REVENUE HAS ANY GRIEVANCE AGA INST THE ORDER PASSED IN M.A. NO. 395/M/09, APPROPRIATE PROCEDURES OUGHT TO HAVE BEEN ADOPTED TO CHALLENGE THE SAID ORDER BUT SO LONG AS THE SAID ORDER REMAINS IN TACT IT CANNOT BE SAID THAT THE SUBSEQUENT ORDER PASSED BY SMC BENCH DT. 26.11.2010 GIVES RISE TO A MISTAKE APPARENT FROM RECORD. THUS IT WAS CONTENDED THAT T HE MISCELLANEOUS APPLICATION FILED BY THE REVENUE DESERVE TO BE DISMISSED. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. WE ALSO CONSIDERED THE PECULIAR MATRIX OF THE CASE. THE ISSUE THAT ARISES FOR OUR CONSIDERATION AS TO WHETHER THE BENCH WHICH IS SEIZED THE PRESENT M.A. SHOULD P UT ITS STAMP OF APPROVAL ON ORDERS WHICH WERE PURPORTEDLY DEFECTIVE/NULL AND V OID BY APPLYING THE PRINCIPLE OF STARE DECISIS OR IS THERE ANY DUTY CAST UPON THE DIVISION BENCH TO PASS THE ORDERS IN ACCORDANCE WITH LAW. NO DOUBT THE ULTIMATE ANALYSI S OF THE ISSUE AND THE DECISION THEREON MAY NOT ULTIMATELY AFFECT BOTH THE PARTIES BUT WE ARE OF THE BONAFIDE OPINION THAT IT IS OUR DUTY TO EXPOSE THE LAW IN IT S PROPER PERSPECTIVE HENCE WE VENTURE UPON ANALYZING THE CORRECTNESS OF THE ORDER S PASSED IN M.A. NO. 395/M/09 MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 9 AND THE SUBSEQUENT ORDER PASSED ON 26.11.2010. THE FACTUAL MATRIX OF THE CASE HAS BEEN EXTENSIVELY NARRATED IN THE PRECEDING PARAGRAP HS AND HENCE IT IS NOT NECESSARY TO REPEAT THE SAME. AS PER THE CONVENTION/PROCEDUR E WHEN A FIRST APPELLATE AUTHORITY PASSED THE CONSOLIDATED ORDER IN RESPECT OF NUMBER OF YEARS OF THE SAME ASSESSEE OR OF THE DIFFERENT ASSESSEE, IT DOES NOT CONFER ANY RIGHT UPON SUCH ASSESSEES TO FILE ONE CONSOLIDATED APPEAL BEFORE TH E APPELLATE TRIBUNAL. IN OTHER WORDS, EACH YEAR IS AN INDEPENDENT YEAR AND EVEN IN RESPECT OF THE SAME YEAR PENALTY APPEAL IS DIFFERENT FROM AN APPEAL FILED AG AINST THE QUANTUM PROCEEDINGS. THUS EVEN IF A CONSOLIDATED ORDER PASSED BY THE FIR ST APPELLATE AUTHORITY, A DUTY IS UPON THE APPELLANT TO PREFER INDEPENDENT APPEALS B Y PAYING SEPARATE INSTITUTION FEES FOR EACH YEAR AND FOR EACH CAUSE OF ACTION I.E . PENALTY AND QUANTUM PROCEEDINGS SHOULD BE TREATED AS INDEPENDENT OF EAC H OTHER. IN A SIMILAR FASHION, THE TRIBUNAL TAKES UPON A COMMON ISSUE AND PASSES A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE BUT IT DOES NOT MEAN THAT AGGRI EVED PARTY IS ENTITLED TO FILE ONE M.A AGAINST THE CONSOLIDATED ORDER FOR DIFFERENT AS SESSMENT YEARS. 13. IN THE INSTANT CASE, THIS ASPECT WAS NOTICED BY THE DIVISION BENCH WHICH HAD TAKEN UP M.A. NO. 395/M/09 BUT UNFORTUNATELY THE C ASE HAVING BEEN ADJOURNED FROM TIME TO TIME, IT MISSED THE ATTENTION OF THE B ENCH AND EVEN THE LD. COUNSEL FOR THE ASSESSEE AND THE DEPARTMENTAL REPRESENTATIVE AP PEARS TO HAVE NOT BROUGHT TO THE NOTICE OF THE BENCH THAT SEPARATE M.AS WERE FI LED SUBSEQUENTLY; UNDER THESE CIRCUMSTANCES, THE TRIBUNAL RECALLED THE CONSOLIDAT ED ORDER, REFERABLE TO SIX ASSESSMENT YEARS, WITHOUT MENTIONING AS TO WHETHER THEY ARE ENTITLED TO ACT UPON A CONSOLIDATED M.A FILED BY THE ASSESSEE WHICH IS DEF ECTIVE/INVALID. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THA T THE ORDER PASSED IN M.A. NO. 395/M/09 IS INVALID AND CONSEQUENTIALLY THE ORDER P ASSED BY THE SMC BENCH IN THE RECALL PROCEEDINGS ALSO BECOMES INVALID. IN FACT, THE REVENUE HAS RIGHTLY POINTED OUT, IN THE M.AS FILED BY THE REVENUE THAT ORDER PA SSED BY SMC BENCH ON 26.11.2010 DESERVES TO BE RECALLED SINCE THEY ARE N OT IN ACCORDANCE WITH LAW. 14. IN OUR CONSIDERED OPINION, THE ARGUMENTS ADVANCE D BY THE REVENUE DESERVES TO BE ACCEPTED. WE ARE OF THE VIEW THAT THE ORDER D T. 26.11.2010 SUFFERS FROM A MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 10 MISTAKE APPARENT FROM RECORD INASMUCH AS THE VERY B ASIS FOR RECALL IS NOT IN ACCORDANCE WITH LAW. WE THEREFORE RECALL THE ORDER DT. 26.11.2010 AND ALLOW M.A. NO. 125 TO 130/M/2011 FILED BY THE REVENUE. 15. IT MAY NOT BE OUT OF PLACE TO MENTION THAT THE R EVENUE HAS FILED ONE CONSOLIDATED M.A WHICH WAS NUMBERED M.A. NO. 512/M/ 2011 WHICH IS ADMITTED BY THE REVENUE AS AN INVALID APPLICATION SINCE A CONSO LIDATED M.A CANNOT BE FILED. WE THEREFORE REJECT THE M.A. FILED BY THE REVENUE. IN OTHER WORDS, M.A. NO. 512/M/2011 IS HEREBY DISMISSED. 16. SINCE THE ORDER DT. 26.11.2010 IS RECALLED, THE ORIGINAL ORDER DT. 2.4.2009 SURVIVES FOR OUR CONSIDERATION. THE ASSESSEE FILED FRESH M.A. WHEREIN THE ASSESSEE TENDERED EXPLANATION FOR NON APPEARANCE ON THE APPO INTED DATE WHICH RESULTED IN PASSING AN EX PARTE ORDER DT. 2.4.2009. HAVING CARE FULLY CONSIDERED THE SUBMISSION AND MATERIAL FACTS ON RECORD, WE ALL SATISFIED THAT THE NON APPEARANCE IS ON ACCOUNT OF SATISFACTORY CAUSE AND HENCE IN THE INTEREST OF JUSTICE, WE EXERCISE THE POWERS VESTED IN US UNDER RULE 24 OF THE APPELLATE TRIBUNA L RULES TO RECALL THE EX PARTE ORDER DT. 2.4.2009 AND DIRECT THE REGISTRY TO POST THE APPEALS FOR FRESH HEARING ON 21.2.2013. 16. IN THE RESULT, M.A. NO. 512/M/2011 FILED BY THE REVENUE IS DISMISSED WHEREAS M.A. NOS. 377 TO 382/M/2010 FILED BY THE ASSESSEE A ND M.A. NOS. 125 TO 130/MUM/2012 FILED BY REVENUE ARE TREATED AS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2013 SD/- (D. MANMOHAN) SD/ (N.K. BILLAIYA ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED RJ MA NOS 377 TO 381/M/12 & 125 TO 130/M/201 2 11 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR SMC BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI