Shri Rajnikant Vrajlal Chokshi(HUF), Surat V. The Income tax Officer,Ward-8(4), Surat

MA 198/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7653 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 24-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'.#$%, '& ' ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER MA(S) BY SL. NO(S). MA NO(S) ASSESSMENT YEAR(S) APPLICANT (S) RESPONDENT(S) 1. 198/AHD/11 (O/O ITA NO.4416/A/07) 2001-02 RAJNIKANT VRAJLAL CHOKSHI-HUF A/53-54, BHULABHAI PARK LAXMINARAYAN ASHRAM ROAD SURAT PAN: AABHC 6682F THE ITO WARD-8(4) SURAT 2. 199/AHD/11 (O/O ITA NO.4417/A/07) 2001-02 ANAND KANTILAL CHOKSHI-HUF SURAT PAN: AABHC 5183M THE ITO WARD-9(1) SURAT 3. 205/AHD/11 (O/O ITA NO.471/A/09) 2002-03 -DO- -DO- 4. 200/AHD/11 (O/O ITA NO.4418/A/07) 1999-2000 NAVINCHANDRA VRAJLAL CHOKSHI-HUF SURAT PAN: AABHC 5160N THE ITO WARD-9(3) SURAT 5. 201/AHD/11 (O/O ITA NO.4419/A/07) 2001-02 KAMLESH RANJIKANT CHOKSHI-HUF SURAT PAN:AAEHK 2140R THE ITO WARD-8(4) SURAT 6. 202/AHD/11 (O/O ITA NO.4420/A/07) 2001-02 KANTILAL VRAJLAL CHOKSHI-HUF SURAT PAN:AABHC 5169F THE ITO WARD-9(2) SURAT ASSESSEE(S) BY : SHRI RAJESH M.UPADHYAY REVENUE BY : SHRI SAMIR TEKRIWAL, SR.D.R. () * & / / / / DATE OF HEARING : 02/03/2012 ,$- * & / DATE OF PRONOUNCEMENT : 23/03/2012 MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 2 - '. / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : ALL THESE MISCELLANEOUS APPLICATIONS OF DIFFEREN T APPLICANTS HAVE BEEN FILED ON 24/11/2011. A CONSOLIDATED ORDER WAS PASSED BY ITAT D BENCH AHMEDABAD IN RESPECT OF THESE APPLICANTS VID E ITA NUMBERS REFERRED IN THE NOMENCLATURE HEREINABOVE VIDE AN OR DER DATED 30/09/2011. 2. THE RESPECTIVE PETITIONS U/S.254(2) ARE ALMOST IDENTICALLY WORDED, RELEVANT PARAS ARE REPRODUCED BELOW:- 1. THAT IT IS TRUE THAT HON'BLE BENCH D OF ITAT , AHMEDABAD HAS INFORMED THE DATE OF HEARING I.E. 28-09-2011, I N OPEN COURT WHILE DECIDING MA FILED BY ME IN MY ITA NO.4416/AH D/2007. IT IS ALSO TRUE THAT NO ONE APPEARED BEFORE THE HON'BL E BENCH, FROM MY SIDE TO REPRESENT THE CASE AND HENCE HONORABLE B ENCH HAS DECIDED BY ITA NO.4416/2007 FOR A.Y. 2001-02 EX-PAR TE. HON'BLE BENCH HAS DECIDED APPEAL ON MERITS, AFTER HEARING DR AND CONSIDERING THE ASSESSMENT ORDER AND APPEAL ORDER O F THE LR.CIT(A), SURAT, BUT IN MY ABSENCE AND/OR HEARING OF MY AR. 2. SIRS, A REQUEST TO ADJOURN HEARING DATED 19.09. 2011 WAS SENT THROUGH SPEED-POST DATED 20.09.2011. THE SAID REQU EST WAS REACHED TO THE OFFICE OF HON'BLE ITAT, AHMEDABAD ON 21.09.2011. COPY ENCLOSED AT EX.1 & 2. THEREFORE, I WAS UNDER THE BONA-FIDE BELIEF THAT HON'BLE BENCH WILL CONSIDER MY PRAYER F OR ADJOURNMENT. THEREFORE, ON THE DATE OF HEARING I.E . ON 28-09- 2011, NEITHER MY AR NOR I REMAINED PRESENT BEFORE THE HON'BLE BENCH OF ITAT, AHMEDABAD. 4. SIRS, IT IS MATTER OF FACT AS INQUIRED AND IN FORMED BY MY AR THAT APPEALS FILED BY THE SEVERAL ASSESSEES/APPELLA NTS ARE MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 3 - CONSOLIDATED IN BENCH : C OF ITAT, AHMEDABAD WIT H A VIEW TO DISPOSED OFF, SEVERAL APPEAL TO-GATHER IN THE CASES IN WHICH COMMON QUESTION RELATED TO SURVEY ACTION U/S.133A O F THE ACT IN THE CASE OF ONE CA SHRI PANKAY DANAWALA INVOLVED. IN MY CASE ALSO THERE ARE IDENTICAL FACTS. THEREFORE, WITH A VIEW TO SAVE PRECIOUS TIME OF THE HON'BLE BENCH, I BROUGHT THIS FACT TO THE NOTICE OF THE BENCH IN ADVANCE WIDE MY ADJOURNMENT PETITIO N DATED 19/09/2011 WHICH IS ALSO RECEIVED BY THE ITAT ON 21 /09/2011. RECENTLY, IT IS HEARD THAT THE REGISTRY HAS FIXED A LL SUCH APPEALS ON 26/12/2011 . 2.1. FINALLY, IT WAS PRAYED THAT NON-APPEARANCE WAS A HUMAN ERROR WHICH MAY BE PARDONED AND THE EX-PARTE ORDER MAY BE RECALLED. 3. FROM THE SIDE OF THE APPLICANTS, LD.AR MR. RAJESH M.UPADHYAY APPEARED AND FILED AFFIDAVITS OF THESE PETITIONERS WHEREIN THE FACTS STATED IN THE MISCELLANEOUS PETITIONS HAVE BEEN AFFIRMED O N OATH. HIS MAIN PLANK OF ARGUMENT IS THAT THESE APPEALS SHOULD HAVE BEEN CONSOLIDATED WITH THE OTHER APPEALS WHICH WERE CONNECTED WITH A WELL-KNOWN CASE OF A CHARTERED ACCOUNTANT SHRI PANKAJ DANAWALA. HE HAS ALSO PLEADED THAT THROUGH THE IMPUGNED ADJOURNMENT APPLICATION DATED 19.9.2011 NOT ONLY A REQUEST FOR ADJOURNMENT WAS MADE BUT ALSO REQUEST ED TO CONSOLIDATE ALL THESE APPEALS TO BENCH C OF ITAT AHMEDABAD. 4. LD.AR HAS ALSO FURNISHED CAUSE-LIST OF ITAT C BENCH AHMEDABAD DATED 26/12/2011 TO EMPHASISE THAT REST O F THE CONNECTED APPEALS WERE DECIDED BY C BENCH, ACCORDINGLY THES E APPEALS SHOULD ALSO HAVE BEEN DECIDED BY THE SAME BENCH. MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 4 - 5. FROM THE SIDE OF THE REVENUE, LD.DR MR.SAMIR TEK RIWAL HAS VEHEMENTLY OPPOSED THE RE-CALLING OF THE EX-PARTE ORDER PRIMARILY ON THE GROUND THAT THIS IS NOT THE FIRST TIME THAT THESE A PPEALS WERE NOT PRESENT ON THE APPOINTED DAY OF HEARING BUT IN THE PAST AS WEL L DUE TO NON- APPEARANCE VIDE A CONSOLIDATED ORDER DATED 28/03/20 11 ALL THESE APPEALS WERE DISMISSED IN LIMINE BY THE TRIBUNAL. HOWEVER, THEREUPON AFTER SYMPATHETICALLY CONSIDERING THE REASON OF NON-APPEA RANCE THAT ORDER OF THE TRIBUNAL WAS LATER ON RECALLED IN MA NOS.66, 67 & 71, 68, 69 AND 70/AHD/2011 (ARISING OUT OF ITA NOS.4416, 4417/AHD/ 2007, 471/AHD/2009, 4418, 4419 & 4420/AHD/2007), DATED 29 /07/2011. IN THAT ORDER, VIDE PARA-5 HAS SPECIFICALLY FIXED THE DATED OF HEARING ON 28/9/2011 AND THAT DATE OF HEARING WAS DULY INFORME D IN THE OPEN COURT, THOUGH THE SAID DATE OF HEARING WAS VERY MUCH IN TH E NOTICE OF THE APPELLANTS. BUT AGAIN ON 28/9/2011, THE APPLICANTS HAVE CHOSEN NOT TO REPRESENT THEIR APPEALS AND INSTEAD ALLEGEDLY SENT AN APPLICATION FOR ADJOURNMENT. THE LD.DR HAS INFORMED THAT IN A SITU ATION WHEN ONE MA HAS BEEN DECIDED THEN, THERE WAS NO RIGHT LEFT WITH THE APPLICANT TO FILE AN ANOTHER MA. THESE MAS, ACCORDING TO LD.DR, ARE TH EREFORE NOT MAINTAINABLE. CASE LAWS RELIED UPON ARE PADAM PRA KASH (HUF) VS. ITO (2011)51 DTR 1 :: [136 TTJ 257 (DEL)(SB)] . 6. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. SE QUENCE OF ORDERS PASSED BY THIS ITAT ARE NOT IN DISPUTE. EVEN THE ASSESSEE HAS ALSO ADMITTED THOSE VERY FACTS AS IS EVIDENT FROM THE MA S ITSELF. AS PER THE IMPUGNED ORDER OF THE TRIBUNAL DATED 30/09/2011 VID E PARA-3, IT WAS CATEGORICALLY STATED THAT THE APPELLANTS WERE NOT S ERIOUS IN PURSUING THEIR MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 5 - RESPECTIVE APPEALS. IT WAS MENTIONED THAT EARLIER DUE TO NO-APPEARANCE AN EX-PARTE ORDER WAS PASSED BY THE ITAT DATED 28/3/2011. LAT ER ON, IN THE LIGHT OF THE PROVISIONS OF SECTION 254(2) THROUGH M A ORDER DATED 29/07/2011 AN ANOTHER OPPORTUNITY WAS GRANTED BY RE -CALLING THE SAID EX- PARTE ORDER. THE DATE FIXED THERE UPON WAS 28/09/2007. VIDE PARA-3.1 OF THE IMPUGNED ORDER OF THE TRIBUNAL NOW UNDER CONSID ERATION DATED 30/09/2011. IT WAS ALSO NOTED THAT THROUGH THE PREV IOUS MISCELLANEOUS PETITIONS DATED 24/04/2011 THESE VERY APPLICANTS HA VE PLEADED TO ACCORD ATLEAST ONE MORE OPPORTUNITY TO REPRESENT THEIR RES PECTIVE APPEALS. WE HAVE THEREFORE REMARKED THAT, QUOTE EVEN AFTER THE SAID ASSERTIONS, IT IS STRANGE THAT NEITHER THE APPELLANTS NOR THEIR REPRE SENTATIVE TODAY APPEARED WHO HAD APPEARED TO REPRESENT THOSE MISCEL LANEOUS PETITIONS AND ON WHOSE ASSURANCE, THOSE APPEALS WERE RECALLED AND AGAIN FIXED FOR HEARING SO THAT THE GRIEVANCE OF VIOLATION OF PRINC IPLES OF NATURAL JUSTICE SHOULD BE REDRESSED. UNQUOTE. 6.1. WE HAVE ALSO CONSIDERED RULE 24 IN THE LIGHT OF A DECISION OF HON'BLE GAUHATI HIGH COURT PRONOUNCED IN THE CASE O F RAJENDRA PRASAD BORAH VS. ITAT AND OTHERS 302 ITR 243 AND THEREAFTE R PROCEEDED TO DECIDE THESE APPEALS ON MERITS. WE HAVE EXAMINED T HE ORDERS OF THE REVENUE AUTHORITIES AND THEREUPON GIVEN A FINDING T HAT SINCE THE ASSESSEE HAD NOT PLACED ON RECORD THE REQUISITE INF ORMATION ABOUT THE IDENTITY, GENUINENESS, SOURCE AND THAT WHATEVER WAS FOUND ON RECORD HAPPENED TO BE BOGUS IN NATURE, THEREFORE THE GROUN DS WERE LIABLE TO BE DISMISSED. EVEN THE QUESTION OF VALIDITY OF THE ORD ER HAS BEEN DISCUSSED AND DECIDED ON MERITS. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THESE CASES AND PAST CONDUCT OF TH E APPLICANTS, WE ARE OF MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 6 - THE CONSIDERED VIEW THAT THESE ARE NOT THE FIT CASE S WHERE WE CAN EXERCISE OUR DISCRETIONARY POWER TO RE-CALL AGAIN, HENCE, TH E MAS DESERVE TO BE DISMISSED. AS FAR AS THE QUESTION OF CONSOLIDATION OF THESE APPEALS ARE CONCERNED, NO FORMAL PETITION WAS EVER MADE BY THES E APPLICANTS BEFORE THE PRESCRIBED AUTHORITY OF THE TRIBUNAL, HENCE THI S PLEA OF THE ASSESSEE ALSO HAS NO FORCE. THE PETITION WHICH HAS BEEN REF ERRED BY THE LD.AR DATED 19.9.2011, IN FACT, WAS AN ADJOURNMENT APPLIC ATION AND THE PRAYER IN THE SAID APPLICATION WAS TO ADJOURN THOSE APPEAL S. EVEN THAT PETITION DID NOT REACH TO US AND OTHERWISE ALSO WE HAD NO OC CASION TO TAKE COGNIZANCE OF THAT APPLICATION BECAUSE THE PREVIOUS ORDER WAS RECALLED AFTER CONSIDERING THE UNDERTAKING OF THE APPLICANT (S) THAT THESE APPEALS SHOULD BE REPRESENTED ON THE APPOINTED DAY OF HEARI NG. ONCE AN UNDERTAKING WAS GIVEN BY THE LD.AR, THEN IT WAS NOT LEGALLY AS WELL AS MORALLY JUSTIFIABLE NOT TO ADHERE TO THAT UNDERTAKI NG, INSTEAD SENT AN ADJOURNMENT APPLICATION THAT TOO BY POST. WHETHER THE IMPUGNED ADJOURNMENT APPLICATIONS HAVE AT ALL REACHED TO THE OFFICE OF THE TRIBUNAL IS STILL A MATTER OF ENQUIRY, BUT BE THAT AS IT IS, WE ARE ON THE BASIC FACT THAT SUCH APPLICANTS SHOULD NOT BE ALLOWED TO MAKE A MOC KERY OF JUDICIAL SYSTEM. WE THEREFORE DISMISS ALL THESE MISCELLANEO US APPLICATIONS. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS O F THE ASSESSEE(S) ARE DISMISSED. SD/- SD/- ( .'.#$% ) ( ) '& ( A.K. GARODIA ) ( M UKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/ 03 /2012 MA NOS.198 TO 2 02/AHD/11 &MA NO.205/AHD/11 (BY ASSESSEES) - 7 - /..(, .(../ T.C. NAIR, SR. PS '. * 01 2'1- '. * 01 2'1- '. * 01 2'1- '. * 01 2'1-/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 0534 / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-V SURAT 5. 19# 0( , , / DR, ITAT, AHMEDABAD 6. # :) / GUARD FILE. '.( '.( '.( '.( / BY ORDER, 51 0 //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..2.3.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2.3.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 26.3.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26.3.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER