M/s Alborz Industries, Baddi V. ITO, Parwanoo

MA 15/CHANDI/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2952 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-04-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 01-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: S B GARG
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER M.A.NOS.15 TO 17/CHD/2015 IN ITA NOS.1080 TO 1082 /CHD/2007 (ASSESSMENT YEARS : 1999-2000, 2000-01, 2002-03) M/S ALBORZ INDUSTRIES, VS. THE INCOME TAX OFFICER, B-34, SATYAWATI COLONY, PARWANOO. ASHOK VIHAR, DELHI. PAN: AAFFA5215N AND M.A.NOS.18 TO 20/CHD/2015 IN C.O.NOS.3 TO 5/CHD/2008 IN ITA NOS.1080 TO 1082 /CHD/2007 (ASSESSMENT YEARS : 1999-2000, 2000-01, 2002-03) M/S ALBORZ INDUSTRIES, VS. THE INCOME TAX OFFICER, B-34, SATYAWATI COLONY, PARWANOO. ASHOK VIHAR, DELHI. PAN: AAFFA5215N (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI S.B.GARG RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 10.04.2015 DATE OF PRONOUNCEMENT : 15.04.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS ORDER SHALL DISPOSE OFF ALL THE ABOVE 2 MISCELLANEOUS APPLICATIONS FILED BY THE APPLICANT F OR RECALLING OF ORDER OF THE TRIBUNAL DATED 13.7.2012. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON R ECORD. 3. THE RECORD REVEALS THAT THE DEPARTMENTAL APPEA LS AND CROSS OBJECTIONS OF THE APPLICANT FOR ASSESSMEN T YEARS 1999-2000, 2000-01 AND 2002-03 WERE DISPOSED OFF BY THE TRIBUNAL VIDE ORDER DATED 13.7.2012. THE TRIBUNAL CONSIDERING THE MATERIAL ON RECORD AND CONSIDERING VARIOUS ISSUES RAISED BEFORE THEM RESTORED THE MATTER BACK TO THE FILE OF THE LEARNED CIT (APPEALS) FOR DECIDING THE ISSUE S AFRESH. THE FINDINGS OF THE TRIBUNAL IN PARAS 13 AND 14 OF THE ORDER DATED 13.7.2012 ARE REPRODUCED AS UNDER : 13. WE FIND THAT THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ORDER OF CIT (APPEALS) DATED 22.2.2006 RELATING TO ASSESSMENT YEAR 1998-99 WHEREIN IT HAD CHALLENGED FIRST NON-GRANT OF OPPORTUNITY BY THE CI T (APPEALS) AND ALSO JURISDICTION OF ITO IN FRAMING T HE ASSESSMENT. FURTHER ISSUE RAISED BY THE ASSESSEE W AS WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTIONS 148 AND 143(2) OF THE ACT. THEREAFTER THE ASSESSEE HAS RAISED THE GROUNDS OF APPEALS AGAINST NON-ALLOWANCE OF DEDUCTION UNDER SECTION 80IA OF THE ACT ON VARIOUS ACCOUNTS. THE TRIBUNAL IN ITA NO.306/CHD/2006 RELA TING TO ASSESSMENT YEAR 1998-99 VIDE ORDER DATED 24.5.20 12 HAS REMITTED THE ISSUE BACK TO THE FILE OF THE CIT (APPEALS) WITH THE DIRECTION TO DECIDE THE APPEAL AFRESH ON M ERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE IS SUE RAISED IN THE PRESENT APPEALS FILED BY THE REVENUE AND THE 3 CROSS OBJECTIONS RAISED BY THE ASSESSEE ARE IDENTIC AL TO THE ISSUES RAISED IN ASSESSMENT YEAR 1998-99, WHICH IS FIRST YEAR OF CHALLENGING THE CLAIM OF DEDUCTION UN DER SECTION 80IA OF THE ACT. THE ASSESSEE IN THE SAID APPEAL HAS RAISED OBJECTION AGAINST BOTH THE ISSUE OF NOTI CE UNDER SECTION 148 OF THE ACT AND NON ISSUE OF NOTICE UNDE R SECTION 143(2) OF THE ACT. SIMILAR ISSUES HAVE BEE N RAISED BY THE ASSESSEE IN THE CAPTIONED APPEALS SLATED BEF ORE US. IN VIEW OF THE SIMILAR ISSUES BEING RAISED BY THE A SSESSEE IN ASSESSMENT YEAR 1998-99 AND ALSO IN THE APPEALS RELATING TO ASSESSMENT YEARS 1999-2000, 2000-01 AND 2002-03 AND FOLLOWING THE PRINCIPLES OF NATURAL JUS TICE WE DEEM IT FIT TO RESTORE THE PRESENT ISSUES BACK TO T HE FILE OF THE CIT (APPEALS) TO DECIDE THE SAME DE-NOVO IN ACCORDANCE WITH LAW AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS EE IS DIRECTED TO APPEAR BEFORE THE CIT (APPEALS) FOR SPE EDY DISPOSAL OF THE APPEALS. THE APPEALS FILED BY THE REVENUE RELATING TO ASSESSMENT YEARS 1999-2000, 200 0-01 AND 2002-03 AND CROSS OBJECTIONS FILED BY THE ASSES SEE AGAINST THE SAID APPEALS FILED BY THE REVENUE ARE A LLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, ALL THE THREE APPEALS OF THE REV ENUE AND THE CROSS OBJECTIONS FILED BY ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. 4. THE TRIBUNAL NOTED IN THE ABOVE FINDINGS THAT IDENTICAL ISSUES RAISED IN THE PRESENT APPEALS AND THE CROSS OBJECTIONS WERE RAISED IN THE PRECEDING ASSESSMENT YEAR 1998-99 AS WELL. THE ASSESSMENT YEAR 1998-99 WAS THE FIRST YEAR TO CHALLENGE THE CLAIM OF DEDUCTION UNDER SECT ION 80IA OF THE ACT. THE LEARNED COUNSEL FOR APPLICANT ADMITT ED BEFORE US THAT THE ISSUES INVOLVED IN THE DEPARTMENT APPEA LS AND THE CROSS OBJECTIONS OF THE APPLICANT, IN WHICH PRESENT 4 MISCELLANEOUS APPLICATIONS HAVE BEEN FILED ARE THE SAME ISSUES ON IDENTICAL FACTS, WHICH HAVE BEEN DECIDED BY THE TRIBUNAL IN PRECEDING ASSESSMENT YEAR 1998-99 IN IT A NO.306/CHD/2006. THE TRIBUNAL CONSIDERING THE ISS UES TO BE IDENTICAL AS HAVE BEEN CONSIDERED IN ASSESSMENT YEA R 1998- 99, RESTORED ALL THE MATTERS TO THE FILE OF THE LEA RNED CIT (APPEALS) FOR DECIDING THE ISSUES DE-NOVO. SINCE THE ISSUE OF DEDUCTION UNDER SECTION 80IA OF THE ACT WAS PENDING BEFORE THE LEARNED CIT (APPEALS) FOR ASSESSMENT YEAR 1998- 99, THEREFORE IT BEING THE FIRST YEAR, THE TRIBUNAL THO UGHT IT FIT TO RESTORE THE IDENTICAL MATTER IN THE SUBSEQUENT YEAR BACK TO THE FILE OF THE LEARNED CIT (APPEALS) FOR DECIDING THE ISSUE AFRESH. THE IDENTICAL ISSUES RESTORED IN ASSESSME NT YEAR 1998-99 BEING THE SAME, THEREFORE, THE ISSUES IN TH E SUBSEQUENT ASSESSMENT YEARS WOULD BE DEPENDING UPON THE FINDINGS GIVEN IN ASSESSMENT YEAR 1998-99. THE AP PLICANT HAS FILED THESE APPLICATIONS UNDER SECTION 254(2) O F THE ACT. THE PROVISION OF SECTION 254(2) PROVIDES THAT THE A PPELLATE TRIBUNAL WITH A VIEW TO RECTIFY ANY MISTAKE APPARE NT FROM RECORD MAY AMEND THE ORDER PASSED BY IT UNDER SECTI ON 254(1) OF THE ACT. THE LEARNED COUNSEL FOR APPLICANT HA S, THEREFORE, FAILED TO POINT OUT ANY MISTAKE APPARENT FROM RECOR D OF THE TRIBUNAL, WHICH MAY CALL FOR ANY RECTIFICATION IN T HE ORDER. THE MISCELLANEOUS APPLICATIONS OF THE APPLICANT ARE , THEREFORE, LIABLE TO BE DISMISSED. 5. THE LEARNED COUNSEL FOR APPLICANT, HOWEVER, STA TED THAT WHILE PASSING THE ORDER DATED 13.7.2012, NO NO TICE HAVE 5 BEEN SERVED UPON THE APPLICANT. THEREFORE, THE EX -PARTE ORDER MAY BE RECALLED. IT IS STATED IN THE MISCELL ANEOUS APPLICATIONS THAT IN FORM NO.36, THE DEPARTMENT HAV E MENTIONED THE ADDRESS OF SERVICE OF THE APPLICANT-R ESPONDENT AS 5570, PLOT NO.22 (SOUTH) BASTI HARPHOOL SINGH, S ADAR BAZAR, DELHI. IT IS ALSO STATED THAT ON THIS ADDRE SS THE POSTAL AUTHORITIES RETURNED THE ENVELOP WITH REMARKS LEFT WITHOUT ADDRESS. IT IS ALSO STATED THAT THE APPLICANT LA TER ON INFORMED THE INCOME TAX OFFICER ABOUT THE NEW ADDRE SS AS B- 34, SATYAWATI COLONY, ASHOK VIHAR, DELHI AND THE S AME ADDRESS IS ALSO MENTIONED IN THE CROSS OBJECTIONS. THE RECORD, HOWEVER, REVEALS THAT THE LEARNED COUNSEL F OR APPLICANT HAD BEEN APPEARING BEFORE THE TRIBUNAL ON VARIOUS DATES OF HEARING AND THE HEARING OF THE APPEALS WER E ADJOURNED MANY TIMES ON THE REQUEST OF THE LEARNED COUNSEL FOR APPLICANT. THE LEARNED COUNSEL FOR APPLICANT ALSO ADMITTED BEFORE US THAT THE APPLICANT HAS NOT INFOR MED THE TRIBUNAL OF THE NEW ADDRESS FOR THE PURPOSE OF SERV ICE. SINCE THE APPLICANT HAS FAILED TO INFORM THE NEW ADDRESS TO THE TRIBUNAL, THEREFORE, THERE IS NO QUESTION OF SENDIN G NOTICE AT THE NEW ADDRESS. IT WAS ALSO THE DUTY OF THE APPL ICANT TO VERIFY ABOUT THE FURTHER DATES OF HEARING OF THE AP PEALS LATER ON EVEN IF NO NOTICE WAS SERVED UPON THE APPLICANT. SINCE NO NEW ADDRESS WAS INTIMATED IN THE DEPARTMENTAL APPEA LS AND APPLICANT ALSO FAILED TO TAKE NOTE OF THE ADJOURNED DATE OF HEARING IN THE MATTER, THEREFORE, THE APPEALS WERE DECIDED IN THE ABSENCE OF THE APPLICANT. WE MAY ALSO NOTE HE RE THAT THE CONDUCT OF THE APPLICANT WAS ALSO SAME AS ALL THE A SSESSMENT 6 ORDERS FOR ASSESSMENT YEARS UNDER APPEALS WERE PASS ED EX- PARTE BY THE ASSESSING OFFICER BECAUSE THE APPLICAN T NEVER COOPERATED FOR FINALIZATION OF THE ASSESSMENTS. T HEREFORE, NO MISTAKE IS POINTED OUT IN THE RECORD OF THE TRIBUNA L. AS NOTED ABOVE, SINCE ALL THE ISSUES WHICH WERE RAISED IN THE DEPARTMENTAL APPEALS AND CROSS OBJECTIONS OF THE AP PLICANT WERE IDENTICAL IN ASSESSMENT YEARS UNDER REFERENCE AS WERE CONSIDERED IN PRECEDING ASSESSMENT YEAR 1998-99, TH EREFORE, THE MATTERS WERE ONLY RESTORED TO THE FILE OF THE L EARNED CIT (APPEALS) TO DECIDE ALL THE ISSUES AFRESH. THUS T HE APPLICANT HAS NOT SUFFERED ANYTHING AND NO ADVERSE ORDER HAS BEEN PASSED AGAINST THE APPLICANT. UNLESS THE ISSUE OF DEDUCTION UNDER SECTION 80IA OF THE ACT IS DECIDED IN THE FIR ST YEAR I.E. IN ASSESSMENT YEAR 1998-99, THE SIMILAR ISSUE COULD NOT BE DECIDED IN SUBSEQUENT ASSESSMENT YEAR. THE LEARNE D COUNSEL FOR APPLICANT ADMITTED THAT ALL THE ISSUES ARE IDEN TICAL AS WERE REMANDED IN ASSESSMENT YEAR 1998-99 BY THE TRIBUNAL TO THE FILE OF THE LEARNED CIT (APPEALS). THEREFORE, THE IDENTICAL ISSUES WERE CORRECTLY REMANDED TO THE FILE OF THE L EARNED CIT (APPEALS) IN ALL THE MATTERS UNDER REFERENCE IN MIS CELLANEOUS APPLICATIONS. THE ISSUE IS, THEREFORE, COVERED IN FAVOUR OF THE APPLICANT THROUGH THE ORDER OF THE TRIBUNAL FOR ASS ESSMENT YEAR 1998-99, IN WHICH ALL THE MATTERS IN ISSUES HA VE BEEN RESTORED TO THE FILE OF THE LEARNED CIT (APPEALS). THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD OF THE TRI BUNAL. FOR THE SAKE OF ARGUMENTS OF THE LEARNED COUNSEL FO R APPLICANT, EVEN IF THE MATTER IS RE-FIXED FOR HEARI NG ON MERITS, THE MATTER IN ISSUES WOULD BE REMANDED TO THE FILE OF THE 7 LEARNED CIT (APPEALS) BY FOLLOWING THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1998-99. AS SUCH, NO PURPOSE WOULD SERVE IN ALLOWING THE MISCELLANEOUS APPLICATIONS OF THE APPLICANT. IT WOULD BE WASTE OF JUDICIAL PROCEEDIN GS. CONSIDERING THE ABOVE DISCUSSION IN THE LIGHT OF TH E ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1998-99 DATED 24.5 .2012 IN ITA NO.306/CHD/2006, WE DO NOT FIND ANY MERIT IN AL L THE MISCELLANEOUS APPLICATIONS OF THE APPLICANT AND THE SAME ARE ACCORDINGLY DISMISSED. 6. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIO NS IN ITA NOS.1080 TO 1082/CHD/2007 AND IN C.O.NOS.3 TO 5/CHD/2008 FILED BY THE APPLICANT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF APRIL, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15 TH APRIL, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH