DIRECT INFORMATION P.LTD, V. ITO 9(1)(3),

MA 216/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4099 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 14-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: FEROZE ANDHYARJINA
• Assessee Lawyers: R M MADHAVI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, AM AND SHRI AMARJIT SINGH , J M . / MA NO. 216/MUM/2015 (ARISING OUT OF ITA NO. 757 1 /MUM/2011 ) ( / AS SESSMENT YEAR : 2008 - 09 ) DIRECT INFORMATION PVT. LTD. 701, VARSHA, JANKI KUTIR, JUHU CHURCH ROAD, MUMBAI 400 049 / VS. ITO - 9(1)(3) MUMBAI ./ ./ PAN/GIR NO. AABCD 0497 L ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : MIS S R. M. MADHAVI RESPONDENT BY : SHRI FEROZE ANDHYARJINA / DATE OF HEARING : 15.01.2016 / DATE OF PRONOUNCEMENT : 19 .02.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 16.06.2015 , CHALLENGING IT S ASSESSMENT FOR ASSESSMENT YEAR (A.Y.) 2008 - 09. 2. THE ASSESSEES APPEAL WAS DECIDED ON MERITS BY THE TRIBUNAL EX PARTE , V IDE I T S ORDER U/S. 254(1) OF THE ACT DATED 16.6.2015, TAKING NOTE OF THE FACT THAT THE NOTICE OF HEARING, SENT TO THE ADDRESS AS PROVIDED IN F ORM 36 WAS RETURNED UNSERVED WITH TH E POSTAL REMARK UNCLAIMED (REFER PARA 2 OF THE SAID ORDER). THE ASSESSEE - APP ELLANT HAS NOW MOVED A MISCELLANEOUS PETITION I M PUGNI NG THE SAID ORDER, CLAIMING THAT THIS 2 MA NO. 216/MUM/2015 (A.Y. 2008 - 09) DIRECT INFORMATION PVT. LTD. VS. ITO OBSERVATION BY THE TRIBUNAL IS NOT CORRECT IN - AS - MUCH AS THE ADDRESS MENTIONED IN FORM 36 IS THE CORRECT ADDRESS ON WHICH SUBSEQUENTLY THE IMPUGNED ORDER WAS ALSO RE CEIVED, AND THAT IT HAD AT NO TIME REFUSED TO TAKE DELIVERY OF THE SAID NOTICE, AS IMPLIED BY THE WORDS UNCLAIMED . THE SAID AVERMENT , APART FROM BEING STATED IN ITS APPLICATION , STAND S MADE PER AN A FFIDAVIT DATED 10.9.2015 BY SHRI MAHENDRA TURAK HIA , SON OF LATE DEEPACHAND TURAKHIA WHO , AS PER FORM 36 (MEMORANDUM OF APPEAL) , IS A D IRECTOR - F INANCE IN THE ASSESSEE - COMPANY. ACCORDINGLY , IT IS SUBMITTED THAT THE IMPUGNED ORDER BE RECALLED AND THE APPEAL HEARD AND DECIDED BY THE TRIBUNAL AFRESH. 3. WE HAVE H EARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 (RULES HEREINAFTER) GOVERN S THE HEARING OF AN APPEAL EX PARTE FOR THE DEFAULT OF THE APPELLANT . IT PROVIDES THAT THE T RIBUNAL MAY DISPOSE OF AN APPEAL ON MERITS WHERE THE APPELLANT DOES NOT APPEAR EITHER IN PERSON OR THROUGH A N A UTHORIZED REPRESENTATIVE (AR) ON THE DAY FIXED FOR HEARING OR ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED , AFTER HEARING THE RESPONDENT, I.E., AS IN THE INSTANT CASE. FURT HER, PROVISO THERETO STATES THAT WHERE THE APPELLANT SATISFIES THE T RIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON APPEARANCE ON THE SAID DATE, THE T RIBUNAL SHALL SET ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. WE ARE COMPLETELY UNABLE TO SEE AS TO HOW THE INGREDIENTS OF THE SAID PROVISO ARE ME T IN THE ADMITTED AND U NDISP UTED FACTS AND CIRCUMSTANCES OF THE CASE. THE ENVELOPE CONTAINING THE NOTICE OF HEARING SOUGHT TO BE SERVED ON THE ASSESSEE - APPELLANT IS ON RECORD. I T BEARS THE SAME ADDRESS AS SP ECIFIED BY THE A PPELLANT IN FORM 36, AS WELL AS THE POSTAL STAMP U NCLAIMED , BEING SENT PER REGISTERED POST (VIDE REGISTRATION NUMBER 2314 DATED 09.4.2015). THIS WAS, IN FACT, SHOWN TO THE LD. AR, THE ASSESSEES COUNSEL , DURING HEARING, WHO CLARIFIED THAT THE ASSESSEE DID NOT DENY THAT THE T RIBUNAL WAS JUSTIFIED IN SO STATING, BUT THE FACT OF THE MATTER IS THAT NO SUCH NOTICE WAS EVER DELIVERED OR SERVED ON THE ASSESSEE. HOW , WE WONDER , COULD SUCH A CON TEN TION BE 3 MA NO. 216/MUM/2015 (A.Y. 2008 - 09) DIRECT INFORMATION PVT. LTD. VS. ITO ACCEPTED, OR GIVEN CREDENCE TO IN THE FACE OF CLEAR EVIDENCE ON RECORD . R ATHER , ON AN EARLIER OCCASION AS WELL (PER REGISTERED - POST NUMBER 618 DATED 12.2.2013), A POSTAL COMMUNICATION, OSTENSIBLY A NOT ICE OF HEARING , HAD COME BACK UNSERVED WITH THE POSTAL REMARK UNKNOWN. THE ASSESSEE, AS OBSERVED DURING HEARING BY THE BENCH, COULD SEEK TO S UBSTANTIATE ITS CLAIM BY SOME CERTIFICATE OR EVIDENCE FROM THE POSTAL AUTHORITIES , ON WHOSE COMMENTS, THE T RIBUNAL IS ENTITLED TO AND HA D RELIED UPON. ON THIS, THE LD. AR EXPRESSED HIS INABILITY AND/OR DIS IN CLI NA TION TO DO SO. THE TRIBUNALS FINDING, AS RECORDED AT PARA 2 OF ITS ORDER, BASED ON THE MATERIAL ON RECORD, C ANNOT BE DISLO DG ED BY MERELY MAKING A BALD CLAIM , EVEN IF PER AN AFFIDAVIT, WHICH IN THE CIRCUMSTANCES BECOMES, AND I S IN THE NATURE OF , A SELF - S ERVING STATEMENT. THERE HAS BEEN SIMILARLY NON - SERVICE ON AN EARLIER OCCASION AS WELL. IN FACT, WE NOTICE AND CANNOT H E L P NOTING THAT THE ASSESSEE HAD NOT BEEN VIGILANT IN PURSUING ITS INSTANT APPEAL, WHICH STOOD DISMISSED IN LIMINE BY THE T RIBUNAL VIDE I TS ORDER U/S. 254(1) DATED 30.1.2013, WHICH STOOD THOUGH RECALLED ON THE ASSESSEE MAKING OUT A REASONABLE CAUSE FOR NON - APPEARANCE ON THE DATE OF THE HEARING , VIDE ITS ORDER U/S. 254(2) DATED 16.8.2013 (IN MA NO. 101/ M UM/2013/COPY ON RECORD), WHICH MENTION S A DIFFERENT ADDRESS AND WHICH WOULD ONLY HAVE BEEN , AND IS ONLY , AGAIN, AS SPECIFIED BY THE ASSESSEE PER ITS SAID A PPLICATION. WE, IN VIEW OF THE FOREGOING, ARE NOT AT ALL MO VED TO, OR FIND ANY REASONABLE CAUSE TO ACCEPT THE ASSESSEES PRAYER FOR A RECALL O F THE IMPUGNED ORDER , AS MADE BEFORE US. FURTHER , THE CONTENTIONS RAISED BY THE ASSESSEE PER PARA 3 OF ITS MA ARE TOWARD THE MERITS OF THE CASE, IMPERMISSIBLE FOR BEING CANVASSED IN RECTIFICATION PROCEEDINGS, WITH THE ASSESSEE THEREBY IN FACT ADMITTING TO THE IMPUGNED SUM TO BE IN THE NATURE OF AN ADVANCE (TO A REAL ESTATE BROKER) TOWARD OFFICE PREMISES, I.E., AS CONSIDERED BY THE T RIBUNAL . T HERE IS THUS NO WRONG ASSUMPTION OF FACT/S, WHICH WE THOUGH STATE I N ADD ITION AND WITHOUT PREJUDICE TO OUR DECISION QUA THE NON - SATISFACTION OF THE CONDITION OF R ULE 24 OF THE RULES. THE ASSESSEES APPLICATION IS THUS WITHOUT MERIT , AND IS ACCORDINGLY DISMISSED. WE DECIDE ACCORDINGLY. 4 MA NO. 216/MUM/2015 (A.Y. 2008 - 09) DIRECT INFORMATION PVT. LTD. VS. ITO 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUAR Y 19 , 201 6 SD/ - SD/ - ( AMARJIT SINGH ) (S ANJAY ARORA) / J UDICIAL MEMB ER / A CCOUNTANT MEMBER MUMBAI ; DATED : 19 . 0 2 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC A NT 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