LAXMI VENTURES (INDIA) P . LTD, V. DCIT CIR 5(2),

MA 23/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6416 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 15-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND DALAL
• Keywords: Depreciation; Additional evidence

Judgement Text

1 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C BEFORE SHRI D.K. AGARWAL, J.M. AND SHRI R.K. PANDA, A.M. MISC. APPLICATION NO. 23/MUM/2010 ARISING OUT OF ITA NO. 2173/MUM/2002 ASSESSMENT YEAR 1998-99 M/S LAXMI VENTURES (BOMBAY) PVT. LTD., 1/45, NEHRU NAGAR (E), BHILAI, DIST. DURG (C.G.) PIN 490020. PAN AAACD 2339Q VS. D.C.I.T., CIR. 5(2), AAYAKAR BHAWAN, MUMBAI. APPLICANT RESPONDENT APPLICANT BY SHRI ARVIND DALAL RESPONDENT BY SHRI R.K. GUPTA ORDER PER R.K. PANDA A.M. THE ASSESSEE THROUGH THIS MISC. APPLICATION REQUES TS THE TRIBUNAL EITHER TO RECALL GROUNDS OF APPEAL NO. 1 TO 7 IN ITA NO. 2 173/MUM/2002 FOR A.Y. 1998-99 ORDER DATED 4.8.2009 FOR FRESH ADJUDICATION OR MODIFY THE SAME BY RESTORING THE ISSUE TO THE FILE OF THE A.O. AS AGAI NST DISMISSED BY THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COMPANY HAS DISCLOSED AN AMOUNT OF ` ` 35,02,012/- ON ACCOUNT OF CONTRACT RECEIPTS OF FARIDABAD UNIT. HOWEVER, THE RETURN WAS FILED ALON G WITH TDS CERTIFICATES DISCLOSING CONTRACT RECEIPTS OF ` 54,24,829/-. THE DIFFERENCE IN AMOUNT IS DUE TO THE TDS CERTIFICATES OF M/S DALAL AUTOCAST AND S UPREME INDUSTRIES. IT WAS SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDING S THAT THE WHEREABOUTS OF 2 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. M/S SUPREME INDUSTRIES IS NOT KNOWN AS THE COMPANY IS NOT TRACEABLE AND IT IS NOT KNOWN WHETHER SUCH AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE COMPANY AT ALL, THEREFORE, THE MATTER SHOULD BE RESTORED BA CK TO THE FILE OF THE A.O. FOR ISSUE OF SUMMONS TO THOSE PARTIES. IT WAS FURTHER A RGUED THAT SOME DISPUTE IS GOING ON BETWEEN THE DIRECTORS AND THE MATTER IS PE NDING BEFORE THE COMPANY LAW BOARD, THEREFORE, THE MATTER SHOULD ALSO BE SET ASIDE TILL THE OUTCOME OF THE DECISION FROM THE COMPANY LAW BOARD. HOWEVER, T HE TRIBUNAL DID NOT CONSIDER THE ABOVE ARGUMENTS AND DISMISSED THE APPE AL FILED BY THE ASSESSEE ON THE GROUND THAT THE MATTER IS 10 YEARS OLD THAT THE TDS CERTIFICATES WERE ENCLOSED ALONG WITH THE RETURN OF INCOME DULY SIGNE D AND VERIFIED BY THE DIRECTORS OF THE COMPANY AND THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY WHERE THE ACCOUNTS ARE AUDITED. THEREFORE, IT WILL NOT SERVE ANY PURPOSE BY SETTING ASIDE THE MATTER TO THE FILE OF THE A.O. FO R ISSUE OF SUMMONS TO THOSE PARTIES BECAUSE IT WILL PROLONG THE LITIGATION. HE SUBMITTED THAT THE TRIBUNAL, HOWEVER, RESTORED THE ISSUE TO THE FILE OF THE A.O. RELATING TO DEPRECIATION FOR VERIFICATION ON THE BASIS OF EVIDENCES FILED BEFORE THE LD. CIT(A) WHICH WERE REJECTED BY HIM ON THE GROUND THAT THEY WERE NOT CO VERED BY THE EXCEPTIONS TO RULE 46A OF THE I.T. RULES, 1962. HE, ACCORDINGLY, SUBMITTED THAT SINCE THE TRIBUNAL HAS NOT CONSIDERED THE ARGUMENT REGARDING THE PETITION DATED 18.9.2002 FILED BEFORE THE COMPANY LAW BOARD WHEREI N IN PARA 20(XVII) THE SPECIFIC ISSUE OF FAKE TDS CERTIFICATES HAS BEEN RA ISED AND SINCE THE COPY OF THE PETITION ALONG WITH AFFIDAVIT DTD. 16.5.2008 OF MR. VINAY WALIA, EX CEO OF THE COMPANY WAS NOT CONSIDERED, THEREFORE, IT HAS RESUL TED INTO MISCARRIAGE OF JUSTICE. RELYING ON THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. REPORTED IN 295 ITR 466, T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT GROUNDS OF APPEAL NO. 1 TO 7 SHOULD BE RECALLED FOR FRESH ADJUDICATION OR AMENDED BY SETTING ASIDE THE MATTER TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION. 3 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D THE M.A. HE SUBMITTED THAT THE TRIBUNAL HAS PASSED A DETAILED ORDER ON ME RIT OF THE CASE. SINCE THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL , THE M.A. DESERVES TO BE DISMISSED. HE SUBMITTED THAT ANY FURTHER DECISION ON THIS CONCLUDED MATTER WILL AMOUNT TO REVIEW OF ITS OWN ORDER BY THE TRIBU NAL WHICH IS NOT PERMISSIBLE BY LAW. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. WE HAVE ALSO CONSIDERED THE CONTENTS OF THE MISC. APPLICATI ON AND THE DECISIONS CITED BEFORE US. WE DO NOT FIND MUCH FORCE IN THE ARGUMEN TS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE GROUNDS OF APPE AL NO. 8 TO 10 HAS BEEN RESTORED TO THE FILE OF THE A.O., THEREFORE, ON THE SAME LOGIC GROUNDS OF APPEAL NO. 1 TO 7 SHOULD HAVE ALSO BEEN RESTORED TO THE FI LE OF THE A.O. WE FIND IN GROUNDS OF APPEAL NO. 8 TO 10, THE ASSESSEE HAD ALR EADY FILED CERTAIN EVIDENCES BEFORE THE LD. CIT(A) WHO REJECTED THE SAME ON THE GROUND THAT THOSE ARE NOT FALLING UNDER THE EXCEPTION TO RULE 46A OF THE I.T. RULES. UNDER THESE CIRCUMSTANCES, THE TRIBUNAL HELD THAT THE LD. CIT(A ) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCES FILED BEFORE HIM IN THE SHAPE OF BILLS AND VOUCHERS AND, THEREFORE, RESTORED THE MATTER BACK TO THE FILE OF A.O. FOR ADJUDICATION OF THE ISSUE AFRESH IN THE LIGHT OF THOSE EVIDENCES. HOWEV ER, SO FAR AS GROUNDS OF APPEAL NO. 1 TO 7 ARE CONCERNED, NOTHING HAS BEEN S UBMITTED BEFORE THE BENCH. THE TDS CERTIFICATES ENCLOSED ALONG WITH THE RETURN OF INCOME WERE DULY SIGNED AND VERIFIED BY THE DIRECTORS OF THE COMPANY. THE ASSESSEE COMPANY HAS CONSCIOUSLY CLAIMED CREDIT OF TAX DEDUCTED ON THE B ASIS OF THE TDS CERTIFICATES WHICH WERE ENCLOSED ALONG WITH THE RETURN OF INCOME . AT NO POINT OF TIME THE ASSESSEE HAS VOLUNTARILY SAID THAT THOSE WERE FAKE CERTIFICATES. SINCE THE ASSESSEE IS A PRIVATE LIMITED COMPANY, THE ACCOUNTS WERE AUDITED, THE RETURN WAS ACCOMPANIED WITH THOSE TDS CERTIFICATES AND SIN CE THE RETURN WAS DULY VERIFIED AND SIGNED BY ONE OF THE DIRECTORS, THEREF ORE, THE TRIBUNAL AFTER CONSIDERING ALL THE TECHNICAL ASPECTS, HAS TAKEN TH E VIEW THAT THERE IS NO POINT 4 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. IN RESTORING THE MATTER TO THE FILE OF THE A.O. WIT H A DIRECTION TO ISSUE SUMMONS TO THOSE PARTIES. MOREOVER, IT WILL NOT SERVE ANY P URPOSE AND ONLY PROLONG LITIGATION BECAUSE THE MATTER IS VERY OLD. THE LD. COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT ANY ERROR IN THE FINDINGS GIVEN BY TH E BENCH, THEREFORE, THE M.A. DESERVES TO BE DISMISSED ON THIS GROUND ITSELF. 4.1 FURTHER, ON BEING QUESTIONED BY THE BENCH AS TO WHETHER THE ASSESSEE HAS CHALLENGED THE ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT, THE LD. COUNSEL FOR THE ASSESSEE ANSWERED THE SAME IN AFFIR MATIVE AND FILED A COPY OF THE PAPER BOOK FILED BEFORE THE HONBLE HIGH COURT. IN APPEAL U/S 260-A OF THE I.T. ACT FILED BEFORE THE HONBLE JURISDICTIONAL HI GH COURT AGAINST THE ORDER OF THE TRIBUNAL, WE FIND THE ASSESSEE HAS TAKEN NUMBER OF GROUNDS CHALLENGING THE ORDER OF THE TRIBUNAL DISMISSING GROUNDS OF APP EAL NO. 1 TO 7. IT HAS BEEN HELD BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CA SE OF TATA COMMUNICATIONS LTD. (FORMERLY KNOWN AS BSNL) VS. JCIT IN M.A. NO. 512/MUM/08 ORDER DATED 18 TH JULY, 2009 THAT WHEN A QUESTION IS PENDING BEFORE THE HONBLE HIGH COURT, IT IS NOT RIGHT FOR THE ASSESSEE TO AGITATE THE SAM E OR PART OF THE QUESTION BEFORE THE TRIBUNAL. IT IS FOR THE HIGH COURT TO ADJUDICA TE THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE TRIBUNAL, THEREFORE, ON THIS GROUND ALSO, THE M.A. FILED BY THE ASSESSEE HAS TO BE DISMISSED. IN THIS VIEW OF THE MATTER, THE M.A. FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 25.05.2011. SD/- SD/- (D.K. AGARWAL) (R.K. PANDA) JUDICIAL MEMBER ACCOUNT ANT MEMBER MUMBAI, DATED 25 TH MAY, 2011. 5 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -CONCERNED, MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, C 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 6 MA 23/M/2010 M/S LAXMI VENTURES (BOMBAY) LTD. DATE INITIALS 1 DRAFT DICTATED ON 20.5.11, SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 20.5.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER