Accurate Agency Private Limited, Kolkata V. CIT, Kolkata-III, Kolkata, Kolkata

MA 174/KOL/2017

• Counselvise Citation: [2018] 130 COUNSELVISE.COM (IT) 0009 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 19-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN ADD L
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM & HONBLE S HRI M.BALAGANESH, AM] M.A. NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/2015) ASSESSMENT YEAR: 2008-09 ACCURATE AGENCY PVT. LTD. VS.- CIT, KOLK ATA-III, KOLKATA. [PAN : AAGCA 2713 H ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI A.K. TIBREWAL , FCA FOR THE RESPONDENT : SHRI SALLONG YADEN, ADD L. CIT SR. DR DATE OF HEARING : 15.06.2018 DATE OF PRONOUNCEMENT : 18.07.2018 ORDER PER M.BALAGANESH, AM BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE A SSESSEE SEEKS TO RECALL THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO. 175/KOL/20 15 DATED 5.11.2015 ON THE GROUND THAT THE TRIBUNAL WHILE DISPOSING OF THE APP EAL DID NOT TAKE COGNIZANCE OF THE FACT THAT THE NOTICE UNDER SECTION (U/S IN SHORT) 2 63 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS NOT SERV ED ON THE ASSESSEE AT ALL. THE LD AR STATED THAT IN THIS REGARD, AN ADDITIONAL GROUND WA S RAISED BEFORE THIS TRIBUNAL WHICH WAS DULY ADMITTED BY THE TRIBUNAL VIDE PARA 6 OF IT S ORDER BY OBSERVING AS UNDER:- 6. AFTER CONSIDERING THE SUBMISSIONS FROM BOTH THE SIDES, WE ARE SATISFIED THAT THE ABOVE GROUNDS DEAL ONLY WITH THE QUESTIONS OF L AW ARISING FROM THE FACTS ON RECORD. FOLLOWING THE JUDGEMENT OF THE HONBLE S UPREME COURT IN NATIONAL THERMAL POWER COMPANY LIMITED VS CIT (1998 ) 229 ITR 383 (SC), WE ADMIT THE ABOVE GRONDS FOR DISPOSAL ON MERITS. 2 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 2 2. THE LD AR STATED THAT THE ADDRESS OF THE ASSESSE E AS MENTIONED IN THE IMPUGNED ORDER OF THE LD CIT U/S 263 OF THE ACT WAS M/S ACCU RATE AGENCY PVT LTD, 75C, PARK STREET, KOLKATA 700016. THE PAN MENTIONED IN THE SAID ORDER OF LD CIT WAS AAFCM3560K. THE ORDER U/S 263 OF THE ACT WAS PASS ED BY THE LD CIT ON 26.3.2013. THE LD CIT HAD DULY MENTIONED IN HIS O RDER U/S 263 OF THE ACT VIDE LAST PARA IN PAGE 1 AS UNDER:- HOWEVER, THE NOTICE WAS RETURNED BY THE POSTAL AUTH ORITIES WITH THE REMARK NOT FOUND. SUBSEQUENTLY, AN INSPECTOR WAS DEPUTE D TO SERVE THE NOTICE. HE ALSO COULD NOT LOCATE THE ASSESSEE AT THE GIVEN ADDRESS AND COULD NOT CONTACT ANY OF THE DIRECTORS / REPRESENTATIVES / EM PLOYEES OF THE ASSESSEE COMPANY. IN VIEW OF THIS, THE NOTICE HAD TO BE SE RVED BY AFFIXTURE AT THE GIVEN ADDRESS. THERE HAS BEEN NO COMPLIANCE AND UNDER TH E CIRCUMSTANCES, I HAVE NO OPTION BUT TO PASS THE ORDER EX-PARTE. 3. THE LD AR ALSO STATED THAT THE ADDRESS MENTIONED IN THE ASSESSMENT ORDER WHICH WAS SOUGHT TO BE REVISED U/S 263 OF THE ACT WAS M/S ACCURATE AGENCY (P) LTD, 49C, RANIHARSHMUKHI RD., PAIKPARA, KOLKATA- 700002 WITH PAN OF AAGCA2713H. HE ALSO POINTED OUT THAT IN THE APPEAL IN FORM NO. 36 FILED BEFORE THIS TRIBUNAL, THE ADDRESS OF THE ASSESSEE WAS MENTIONED AS M/S ACCURA TE AGENCY PVT LTD., CHAPPARIA & ASSOCIATES, CHARTERED ACCOUNTANTS, 8, CAMAC STREE T, SHANTINIKETAN BUILDING, 5 TH FLOOR, ROOM NO.2, KOLKATA 700017. 4. THE LD AR STATED THAT THE ADDRESS OF THE ASSESSE E COMPANY AS PER THE INCOME TAX RETURNS ELECTRONICALLY FILED FOR VARIOUS ASST YEARS ARE AS UNDER:- ASST YEAR 2011-12 RETURN FILED ON 29.9.2011 ASST YEAR 2012-13 RETURN FILED ON 28.9.2012 2, SIR HARI RAM GOENKA STREET, 1 ST FLOOR, KOLKATA, WEST BENGAL 700007 ASST YEAR 2013-14 RETURN FILED ON 29.9.2013 ASST YEAR 2014-15 RETURN FILED ON 28.9.2014 ASST YEAR 2015-16 RETURN FILED ON 24.9.2015 ASST YEAR 2016-17 RETURN FILED ON 30.9.2016 10/2, SOVARAM BASAK STREET, GROUND FLOOR, KOLKATA, WEST BENGAL 700007 3 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 3 5. THE LD AR ARGUED THAT ONE OF THE MAIN GROUND RAI SED BEFORE THIS TRIBUNAL AGAINST THE ORDER U/S 263 OF THE ACT WAS THAT THE ORDER U/S 263 OF THE ACT DESERVES TO BE TREATED AS VOID AB-INITIO IN AS MUCH AS THE MANDATO RY OPPORTUNITY OF BEING HEARD WAS NEVER GRANTED TO THE ASSESSEE. ACCORDING TO LD AR, THIS HAD HAPPENED APPARENTLY DUE TO AFFIXTURE OF NOTICE OF HEARING BY THE LD CIT AT THE WRONG ADDRESS AS STATED SUPRA. IT WAS ARGUED THAT AT THE TIME OF REVISION PROCEEDINGS U/S 263 OF THE ACT, THE ASSESSEE HAD NOT STAYED IN THE ADDRESS MENTIONED IN THE SECT ION 263 ORDER BY THE LD CIT. HENCE IT WAS ARGUED THAT THE LD AR HAD PROCEEDED WI TH THE REVISION ORDER U/S 263 OF THE ACT BY SERVING THE SHOW CAUSE NOTICE ON THE WRO NG ADDRESS THAT TOO BY AFFIXTURE. IT WAS PLEADED THAT THE ACTION OF THE LD CIT IN NOT SERVING THE ASSESSEE IN ITS CORRECT ADDRESS IS ALSO EVIDENT FROM THE FACT OF MENTIONING WRONG PAN IN HIS ORDER. THIS FACT WAS BROUGHT TO THE NOTICE OF THIS TRIBUNAL ACC ORDING TO LD AR WHICH WAS OMITTED TO BE ADDRESSED AND THAT THIS TRIBUNAL BY PLACING R ELIANCE ON THE CO-ORDINATE BENCH DECISION IN THE CASE OF SUBHLAKSHMI VANIJYA PVT LTD AND OTHERS ON SIMILAR ISSUES IN THE ASPECT OF VALIDITY OF SECTION 263 PROCEEDINGS V IS A VIS EXAMINATION OF SHARE CAPITAL AND SHARE PREMIUM, HAD PROCEEDED TO FOLLOW THE SAID ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE. WITHOUT ADDRESSING THE ISS UE OF NON-SERVICE OF NOTICE, THE TRIBUNAL ERRED IN PROCEEDING TO FOLLOW ITS EARLIER ORDER ON MERITS OF THE GROUNDS RAISED BEFORE IT. THIS WAS THE ERROR COMMITTED BY THE TRIB UNAL ACCORDING TO LD AR. IT WAS ALSO POINTED OUT BY THE LD AR THAT THE TRIBUNAL IN ITS ORDER HAD ALSO STATED AS UNDER:- C. IN THE GIVEN FACTS AND CIRCUMSTANCES OF ALL SUCH CASES, THE NOTICES U/S 263 WERE PROPERLY SERVED THROUGH AFFIXTURE OR OTHERWISE . FURTHER THE LAW DOES NOT REQUIRE THE SERVICE OF NOTICE U/S 263 STRICTLY AS PER THE TERMS OF SECTION 282 OF THE ACT. THE ONLY REQUIREMENT ENSHRINED IN THE PROVISION IS TO GIVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH HAS B EEN COMPLIED WITH IN ALL SUCH CASES. 6. ACCORDINGLY IT WAS PLEADED THAT THE DECISION REL IED UPON BY THIS TRIBUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA PVT LTD SUPRA ALSO CONT EMPLATED GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHICH WAS NOT DONE IN THE INSTANT CASE IN THE MANNER KNOWN TO LAW. HENCE THIS BECOMES A MISTAKE APPAR ENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT WARRANTING REC ALLING OF THE ORDER PASSED BY THIS 4 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 4 TRIBUNAL. WITH REGARD TO THE OTHER OBJECTION RAI SED BY THE REVENUE THAT THE AMENDMENT MADE IN THE PROVISIONS OF SECTION 254(2) OF THE ACT BY FINANCE ACT, 2016 W.E.F. 1.6.2016 , BY WHICH THE LIMITATION OF F ILING MISCELLANEOUS APPLICATION UNDER THE SAID SECTION HAS BEEN REDUCED TO SIX MONT HS FROM THE DATE OF THE ORDER FROM THE EARLIER PERIOD OF FOUR YEARS FROM THE DATE OF T HE ORDER, WILL NOT APPLY TO THE INSTANT MISCELLANEOUS APPLICATION. THE SAID AMENDMENT WILL TAKE EFFECT AND APPLY TO THE ORDERS PASSED BY THE TRIBUNAL AFTER 1.6.2016. THE LD AR IN THIS REGARD PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CAES OF K RAVEENDRANATHAN NAIR VS CIT & ANR. IN CIVIL APEAL NO. 3131 OF 2006 , JUDGEMENT DATED 10 TH AUGUST 2017. 7. IN RESPONSE TO ALL THESE AVERMENTS, THE LD DR AR GUED THAT ULTIMATELY THERE WOULD BE NO CHANGE IN THE FINAL OUTCOME OF THE APPEAL BY THIS TRIBUNAL IN AS MUCH AS ON MERITS OF THE GROUNDS RAISED BY THE ASSESSEE, THE I SSUE IS ALREADY DECIDED AGAINST THE ASSESSEE BY THIS TRIBUNAL. HENCE THE ENTIRE PROCE SS OF RECALLING THE SAID ORDER AND PASSING FRESH ORDERS THEREAFTER WOULD ONLY RESULT I N MULTIPLICITY OF PROCEEDINGS. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE ASSESSEE HAS BEEN FREQUENTLY CHANGING HIS ADDRESS AS COULD BE SEEN FR OM THE FACTS NARRATED ABOVE. IN THE SAME ADDRESS MENTIONED IN THE ORDER OF THE LD C IT U/S 263 OF THE ACT, THE ASSESSEE WAS NOT AVAILABLE FOR RECEIPT OF SHOW CAUS E NOTICE U/S 263 OF THE ACT BUT WAS VERY MUCH AVAILABLE ONLY FOR RECEIPT OF THE ORD ER PASSED BY THE LD CIT U/S 263 OF THE ACT. AGAIN WHILE FILING THE APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDER OF THE LD CIT U/S 263 OF THE ACT ON 13.2.2015 , ITS ADDRESS H AS BEEN MENTIONED AS UNDER:- ACCURATE AGENCY PRIVATE LIMITED C/O CHHAPARIA & ASSOCIATES, CHARTERED ACCOUNTANTS, 3, CAMAC STREET, SHANTINIKETAN BUILDING , 5 TH FLOOR, ROOM NO.2, KOLKATA- 700017 5 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 5 AT THIS RELEVANT POINT OF TIME, THE ADDRESS OF THE ASSESSEE AS PER ITS INCOME TAX RETURNS WAS 10/2, SOVARAM BASAK STREET, GROUND FLOO R, KOLKATA, WEST BENGAL 700007 AS ADMITTED IN THE FACTS NARRATED ABOVE. 8.1. HENCE IT COULD BE SAFELY CONCLUDED THAT THE AS SESSEE WAS TRYING TO USE DIFFERENT ADDRESSES AT DIFFERENT POINT OF TIME. HENCE THERE COULD BE NO ADVANCEMENT TO THE CAUSE OF JUSTICE BY SPECIFICALLY NOT ADDRESSING THE ASPECT IN THE ORDER PASSED BY THIS TRIBUNAL IN AS MUCH AS THE CONDUCT OF ALL THESE PAR TIES INVOLVED HAVE BEEN ELABORATELY DEALT WITH BY THIS TRIBUNAL IN MORE THAN 500 CASES , WHICH HAS BEEN UPHELD UPTO HONBLE SUPREME COURT. HENCE WE DO NOT FIND ANY M ERIT IN THIS MISCELLANEOUS APPLICATION PREFERRED BY THE ASSESSEE. IN ANY CASE , ON MERITS, THE ACTION OF THE LD CIT U/S 263 OF THE ACT IS REQUIRED TO BE UPHELD IN VIEW OF THE DECISION RENDERED BY THIS TRIBUNAL IN THE CASE OF SUBHALAKSHMI VANIJYA PVT LT D & ORS IN ITA NO. 1104/KOL/2014 DATED 30.7.2015 WHICH HAS BEEN UPHELD UPTO HONBLE SUPREME COURT. WHEN THERE IS NO CHANGE IN THE FINAL OUTCOM E OF THE PROCEEDINGS, MERELY RECALLING THE ORDER ON ONE COUNT WOULD ONLY RESULT IN MULTIPLICITY OF PROCEEDINGS. RELIANCE IN THIS REGARD IS PLACED ON THE CO-ORDINAT E BENCH OF MUMBAI TRIBUNAL IN THE CASE OF JCIT VS GRASIM INDUSTRIES LTD IN M.A.NO. 24 7/MUM/2010 (ARISING OUT OF ITA NO. 6253/MUM/99) DATED 25.3.2011 WHEREIN IT WAS HELD AS UNDER:- PARA 28. AS RIGHTLY CONTENDED BY THE LD COUNSEL FO R THE ASSESSEE, THE POWER OF THE TRIBUNAL U/S 254(2) OF THE ACT IS CONFINED T O RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE TRIBUNAL DOES NOT HA VE INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. UNLESS THERE IS MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS, CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY WAY OF PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APP ARENT FROM THE RECORD. UNLESS THERE IS MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT , THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE SAME. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADV ANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT O N THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGEMENT. THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. THE TRIBUNAL CANNOT R EDECIDE THE MATTER AND IT 6 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 6 HAS NO POWER TO REVIEW ITS ORDER. THE TRIBUNAL HAS NO POWER TO RECTIFY A DECISION ON DEBATABLE POINT OF LAW. A DECISION ON DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. PARA 29. WHERE THE TRIBUNAL HAS OVERLOOKED THE REL EVANT MATERIAL ON RECORD, THERE WOULD BE AN ERROR APPARENT FROM RECORD WHICH CAN BE RECTIFIED BY SETTING ASIDE THE ORDER FOR FRESH CONSIDERATION. W HERE A MATERIAL FACT BROUGHT TO THE NOTICE OF THE TRIBUNAL HAS BEEN LOST SIGHT O F, THE TRIBUNAL HAS THE POWER TO RECTIFY THE MISTAKE SO COMMITTED ; PROVIDED THE MATERIAL FACT HAS AN IMPORTANT BEARING ON THE ULTIMATE DECISION. THE MI STAKE POINTED OUT IN THE APPLICATION U/S 254(2) OF THE ACT BY THE REVENUE IN THE PRESENT CASE CANNOT BE SAID TO FALL IN EITHER OF THE ABOVE CATEGORIES. PARA 30. FOR THE REASONS STATED ABOVE, WE ARE OF T HE VIEW THAT THE PRESENT APPLICATION U/S 254(2) OF THE ACT IS DEVOID OF MERI TS AND DESERVES TO BE DISMISSED AND IS HEREBY DISMISSED. 8.2. HENCE IN VIEW OF THESE OBSERVATIONS IN THE FAC TS AND CIRCUMSTANCES OF THE CASE , WE DO NOT DEEM THIS AS A FIT CASE FOR RECALLING THE ORDER WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. ACCORDINGLY, THE GROUNDS RAISED IN THE MISCELLANEOUS APPLICATION ARE DISMISSED. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 18.07.2018 SD/- SD/- [S.S. GODARA] [ M.BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.07.2018 SB, SR. PS 7 MA NO. 174/KOL/2017 (A/O I.T.A NO. 175/KOL/201) ACCURATE AGENCY PVT. LTD. A.YR.2008-09 7 COPY OF THE ORDER FORWARDED TO: 1.ACCURATE AGENCY PVT. LTD., CHHAPARIA & ASSOCIATES , CHARTERED ACCOUNTANTS, 8, CAMAC STREET, SHANTINIKETAN BUILDING, 5 TH FLOOR, ROOM NO. 2, KOLKATA-700017. 2. CIT, KOLKATA-III, KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. 3.CIT(A)- 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVA TE SECRETARY HEAD OF OFFICE/ D.D.O., ITAT KOLKATA BENCHE S