EAGLE BURGMANN INDIA P.LTD, V. ASST CIT RG 9(1),

MA 127/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4338 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 09-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATHADE
• Assessee Lawyers: CHARUHAS UPASANI
• Section: 54; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH , JM AND SHRI SANJAY ARORA, AM . / MA NO S . 127 , 128 & 129 /MUM/2015 (ARISING OUT OF ITA NO. 4249/M/2012 , CO NO S . 134/M/2013 & 158/M/2013 ) ( / ASSESSMENT YEAR: 2004 - 05 ) EAGLE BURGMANN INDIA P. LTD. GAZEBO HOUSE, 52, GULMOHAR ROAD, JVPD SCHEME, VILE PARLE (W), MUMBAI - 400 049 / VS. ASST. CIT, RANGE - 9(1), ROOM NO. 223, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACB 0449 F ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI CHARUHAS UPASANI RESPONDENT BY : SHRI PRAKASH L. PATHA DE / DATE OF HEARING : 12.02.2016 / DATE OF PRONOUNCEMENT : 10 .0 5 .2016 / O R D E R PER SANJAY ARORA, A. M.: T H I S IS A SET OF THREE M ISCELLANEOUS P ETITIONS BY THE A SSESSEE ARISING OUT OF THE O RDER U /S. 2 5 4 ( 1 ) OF I NCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE A PPELLATE TRIBUNAL DISPOSING THE ASSESSEES APPEAL AGAINST THE ORDER BY THE COMMISSIONER OF I NCOME T AX ( A PPEALS) - 19, MUMBAI ( CIT (A) FOR SHORT) DATED 24 . 12 . 2012 FOR A.Y. 2004 - 05 , WITH ASSESSEE HAVING PREF ERRED T W O C ROSS O BJECTION S (C.O.S) BEFORE THE TRIBUNAL. 2. THE ASSESSEE NOT PUTTING UP A N APPEARANCE BEFORE THE TRIBUNAL WHEN THE INSTANT APPEAL AND CROSS OBJECTION S WERE CALLED OUT FOR HEARING, PROCEEDED TO HEAR AND DECIDE THE SAME EX PARTE THE ASSESSEE - R ESPONDENT AND CROSS - OBJECTOR. THE TRIBUNAL, TO BEGIN 2 MA NOS. 127 , 128 & 129 /MUM/2015 (A.Y. 2004 - 05) EAGLE BURGMANN INDIA P. LTD. VS. ASST. CIT WITH, NOTED THE ASSESSEES C O S TO BE SUPPORTIVE I N NATURE. ON MERITS, THE ISSUE ARISING IN ITS VIEW STOOD DECIDED CONCLUSIVELY BY THE HON BLE A PEX C OURT IN CIT VS . ALP S THEATRE [19 67 ] 65 ITR 377 ( SC ) , S INCE FO LLOWED BY THE HON BLE JURISDICTIONAL HIGH COURT IN CIT V S . CITI B ANK N. A. [ 2003 ] 2 61 ITR 570 ( BOM ) , BESIDES IN CIT V S. VIMAL CHAND GOLECHA [ 1993 ] 201 ITR 442 (RAJ) , AS WELL AS BY THE TRIBUNAL AS IN THE CASE OF IT O VS. VIKASH BEHAL [2010] 36 DTR 385 (KOL) . THE ASSESSEE HAS NOW MOVED THE INSTANT APPLICATIONS, STATING THAT THE NON - APPEARANCE ON THE DA TE OF HEARING WAS DUE TO THE COUNSEL GETTING LATE ON ACCOUNT OF SOME IMPEDIMENT DURING TRAVEL FROM PUNE TO MUMBAI, AND BY WHICH TIME THE B ENCH HAD A RISEN F OR THE DAY. ACCORDINGLY, IT IS PRAYED THAT THE IMPUGNED ORDER BE SET ASIDE AND THE APPEALS RESTORED FOR FRESH HEAR ING SO AS TO ALLOW OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. F IRSTLY, THE R EASON STATED FOR THE NON - APPEARANCE , AS WELL AS OF THE COUNSEL HAVING ARRIVED FOR HEARING, ALBEIT LATE, IS TOTALLY UNSUBSTANTIATED. ALSO, IT IS NOT UNDERSTANDABLE AS TO WHY, IF THAT BE THE C ASE , THE COUN SEL DID NOT LODGE A REQUEST WITH THE B ENCH ON THE SAME D AY ITSELF ? THE CONSTITUTION FOR A BENCH CONTINUING FOR SOME TIME IN FUTURE, IT WOU LD HAVE POSED LITTLE DIFFICULTY FOR IT TO CAUSE TO GET IT POSTED FOR HEARING ON THE FOLLOWING DAY. THE APPLICATIONS ITSELF HAVE BEEN MADE MUCH LATER ON 0 9 . 6 . 2005, I.E., FIVE MONTHS AFTER THE DATE OF THE HEARING . I S IT THAT THE ASSESSEE WAS BIDDING TIME , A WAITING THE ORDER BY THE TRIBUNAL TO SEE IF IT PASSES AN ORDER IN ITS FAVOUR. WHY, THE APPLICATIONS ARE L ODGED EVEN TWO MONTHS AFTER THE DATE OF PRONOUNCEMENT OF THE ORDER ON 0 8 . 4 . 2015. C ON TINUING FURTHER, DURING HEARING , THE LD. AUTHORIZED REPRESENTATIVE (A R ) ALSO COULD NOT SHOW US AS TO IF ANY PREJUDICE STANDS CAUSED IN - AS - MUCH AS THE TRIBUNAL HAD DECIDED THE APPEALS ( AND THE CROSS OBJECTIONS ) FO LL OW ING THE SETTLED LAW IN THE MATTER. THE COUNSEL ALSO COULD NOT SHOW US IF ANY ASPECT OF THE MATTER /CASE HAD NOT BEEN CONSIDERED BY THE TRIBUNAL , OR OF ANY DIFFERENCE QUA FACTS AS NOTED BY IT. THIS WAS D O N E, DESPITE NO SUCH CONTENTION OR CONTENTION TO THIS EFFECT HAVING BEEN RAISED B Y THE 3 MA NOS. 127 , 128 & 129 /MUM/2015 (A.Y. 2004 - 05) EAGLE BURGMANN INDIA P. LTD. VS. ASST. CIT ASSESSEE PER ITS MA S ONLY WITH A VIEW TO EN SURE THAT NO PREJUDICE STOOD CAUSED TO THE ASSESSEE BY THE TRIBUNAL BY PROCEEDING TO HEAR AND DECIDE THE APPEAL EX PARTE . THERE HAVE BEEN IN FACT DECISION S BY THE T RIBUNAL (MUMBAI BENCHES) ON THE SAME BASIS / LINES , VIZ . DAYAL TAHILRAM PARWANI (IN ITA NOS. 3194/MUM/2013 AND 3545/MUM/2013 DATED 09.10.2015) ; OUR LADY OF BAND ENGG. PVT. LTD. VS. ASST. CIT (IN ITA NO. 3109/MUM/2012 DATED 29.06.2015) ; BALLAL CHEMICALS AND METALS P. LTD. VS. ITO (IN ITA NO. 3947/MUM /2011 DATED 08.05.2015) . NO PREJUDICE TO THE ASSESSEE HAS THUS BEEN CAUSED NOR ANY SHOWN TO US. WE, ACCORDINGLY, FOR THE REASONS AFORE - STATED, F IND NO MERIT IN THE ASSESSEES INSTANT APPLICATIONS , AND DISMISS THE SAME. WE DECIDE ACCORDINGLY. 4. IN THE RE SULT, THE ASSESSEES MISCELLANEOUS APPLICATION S ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON MA Y 10 , 201 6 SD/ - SD/ - ( JOGINDER SINGH ) (S ANJAY ARORA) / J UDICIAL M EMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 10 . 0 5 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP L IC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI