THE NAVYUG CO OP HSG SOCIEITY LTD, V. ITO 21(2)(3),

MA 247/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4569 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 23-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER MA NO. 247/MUM/2015 (IN ITA NO. 2150/MUM/2012 ) : (A.Y : 200 6 - 0 7 ) THE NAVYUG CO - OPERATIVE HOUSING SOCIETY LIMITED, 51, JAI HIND CLUB BUILDING, 2 ND FLOOR, N.S. ROAD NO. 11, JVPD SCHEME, MUMBAI - 49. PAN : AAAAT0325L VS. ITO - 21(2)(3), MUMBAI. (APP LICANT ) (RESPONDENT) APPLICANT BY : MS. PARVATHY G ANESH RESPONDENT BY : MS. ARJU GARODIA DATE OF HEARING : 06.05.2016 DATE OF PRONOUNCEMENT : 06.06.2016 O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE ASSESSEE FOR SETTING ASIDE THE ORDER DT. 2.3.2015 A ND RESTORING THE APPEAL AND GIVING THE ASSESSEE/APPLICANT AN OPPORTU NITY OF HEARING. 2. THE FACTS OF THE CASE ARE THAT AN APPEAL WAS FIL ED BY THE ASSESSEE PERTAINING TO A.Y 2006-07 AGAINST THE ORDE R OF LD. CIT(A) DT. 18.1.2011. ON 30.3.2012 AND, AS APPARENT FROM THE F ACE OF THE RECORDS, THERE WAS AN INORDINATE DELAY IN FILING TH E APPEAL. SO MUCH 2 THE NAVYUG CO-OP. HSG. SOCY.LTD. MA NO. 247/MUM/2015 SO, IN COLUMN NO. 9 IN FORM NO. 36, REFLECTING DATE OF COMMUNICATION OF ORDER, WAS LEFT BLANK. IN ADDITION, THE ORIGINAL C HALLAN WAS NOT ENCLOSED THE APPEAL PAPERS. GROUNDS OF APPEAL, STA TEMENT OF FACT BEFORE CIT(A) WERE NOT FILED IN DUPLICATE, THEREFOR E, DEFECT MEMO WAS ISSUED. IN RESPONSE TO THE SAID DEFECT MEMO ISSUED BY THE REGISTRY, ASSESSEE VIDE LETTER DT. 15.5.2012 FILED FORM NO. 3 5 IN DUPLICATE AND ORIGINAL CHALLAN WAS ALSO ENCLOSED, WHEREAS IN COLU MN NO. 9 IT WAS SUBMITTED THAT THE DATE OF RECEIPT OF CIT(A)S ORDE R WAS NOT AVAILABLE WITH THE ASSESSEE. THEREAFTER, THE CASE WAS ADJOUR NED FROM TIME TO TIME BUT THE ASSESSEE MADE NO EFFORTS BY APPLYING T O THE CIT(A) TO OBTAIN INFORMATION WITH REGARD TO DATE OF SERVICE O F THE ORDER PASSED BY THE CIT(A). IN THIS REGARD AN AFFIDAVIT WAS FIL ED WHEREIN IT WAS STATED THAT THE CIT(A) DISMISSED THE APPEAL EX PARTE , AND UPON RECEIVING THE ORDER OF CIT(A), THE SAME WAS HANDED OVER TO THE CHARTERED ACCOUNTANT AND THEY FAILED TO MAKE THE AP PEAL BEFORE THE APPELLATE TRIBUNAL. BY VIRTUE OF THE SAID FACT, AS SESSEE IMPLIEDLY ADMITTED THAT THERE WAS A DELAY IN FILING THE APPEA L. EVEN THE ASSESSEE HAD NOT ANNEXED ANY AFFIDAVIT OF THE CONCERNED CHAR TERED ACCOUNTANT TO OWN UP THE NEGLIGENCE ON HIS PART TO FILE AN APP EAL IN TIME. 3. AS PER RULES WHEN A DEFECT NOTICE IS ISSUED, THE DEFECTS HAVE TO BE PROPERLY CURED WITHIN A REASONABLE PERIOD AND IN CASE THE DEFECTS ARE NOT CURED, THEN, IN THAT EVENTUALITY, THE TRIBU NAL HAS POWER TO REJECT THE APPEAL UNDER RULE 12 OF THE ITAT RULES, 1963. IN THE PRESENT CASE, SINCE THE DEFECTS WERE NOT REMOVED EV EN AFTER LAPSE OF ALMOST 3 YEARS FROM DATE OF FILING THE APPEAL AND A SSESSEE HAS NOT COME FORWARD TO FURNISH THE CORRECT DATE OF COMMUNI CATION OF THE ORDER OF LD. CIT(A) AND DATE ON WHICH THE ASSESSEE FORWARDED THE PAPERS TO THE CONCERNED CHARTERED ACCOUNTANT, THERE FORE, THE TRIBUNAL 3 THE NAVYUG CO-OP. HSG. SOCY.LTD. MA NO. 247/MUM/2015 VIDE ORDER DT. 2.3.2015 HAVING REGARD TO THE FACTS OF THE CASE DISMISSED THE APPEAL SUMMARILY ON THE GROUND THAT I T IS BARRED BY LIMITATION. THEREFORE, APPEAL FILED BY THE ASSESSE E WAS DISMISSED AS UN-ADMITTED SINCE IT WAS BARRED BY LIMITATION AND N O SUFFICIENT REASON WAS FURNISHED FOR CONDONATION OF DELAY. 4. AFTER DISMISSAL OF THE SAID APPEAL ON 2.3.2015 T HE PRESENT MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE VIDE THEIR APPLICATION DT. 9.10.2015 WHICH WAS FILED BEFORE TH E TRIBUNAL ON 23.10.2015. 5. WE HAVE HEARD THE COUNSEL FOR BOTH THE PARTIES, PERUSED THE MATERIAL PLACED ON RECORD AND ALSO THE ORDER PASSED BY THE TRIBUNAL DT. 2.3.2015. AFTER HEARING THE ARGUMENTS, WE FIND THA T EVEN IN THE PRESENT APPLICATION, THE FACT REGARDING COLUMN NO. 9 IN FORM NO. 36 REFLECTING DATE OF COMMUNICATION/RECEIPT OF ORDER W AS LEFT BLANK IS ADMITTED BY THE LD. AR. THE LD. AR SUPPORTED THE C ONTENTS OF THE APPLICATION CONTAINED IN THE MISCELLANEOUS APPLICAT ION. AFTER CONSIDERING ALL THE FACTS CONTAINED IN THE MISCELLA NEOUS APPLICATION DT. 9.10.2015, WE ARE OF THE CONSIDERED VIEW THAT THE P RESENT APPLICATION ALSO DESERVES TO BE DISMISSED AS THE CONDUCT OF THE ASSESSEE IS NOT FREE FROM BLAMES. WE NOTE THAT THE MAIN INCOME TAX APPEAL, I.E., ITA NO. 2150/MUM/2012 FOR A.Y 2006-07 WAS APPARENTLY FI LED AFTER AN INORDINATE DELAY ON 30.3.2012 THEREBY CHALLENGING T HE ORDER OF LD. CIT(A) DT. 8.1.2011. AND EVEN AFTER LAPSE OF APPROX IMATELY 3 YEARS FROM THE DATE OF FILING OF THE APPEAL, ASSESSEE HAS NOT COME FORWARD TO FURNISH THE CORRECT DATE OF COMMUNICATION OF THE OR DER OF LD. CIT(A) AND SO DEFECTS WERE NOT REMOVED. THEREFORE, THE TR IBUNAL INVOKING RULE 12 OF THE ITAT RULES, 1963 HAD DISMISSED THE A PPEAL SUMMARILY 4 THE NAVYUG CO-OP. HSG. SOCY.LTD. MA NO. 247/MUM/2015 AS UN-ADMITTED ON THE GROUND THAT IT IS BARRED BY L IMITATION AND NO SUFFICIENT REASON WAS FURNISHED FOR CONDONATION OF DELAY. THE LD. AR ALSO SUBMITTED THAT, IN FACT, THEY WANTED TO REMOVE THE DEFECTS AND REQUIRED INFORMATION WAS WITH THE ASSESSEE. HOWEVE R, THIS ARGUMENT OF THE ASSESSEE IS NOT SUSTAINABLE AT THIS STAGE, H AD THE ASSESSEE BEEN HAVING THE SAID REQUIRED INFORMATION, THEN, ASSESSE E COULD HAVE REMOVED THE DEFECT DURING THE PENDENCY OF THE MAIN APPEAL, BUT EVEN AFTER EXPIRY OF ALMOST 3 LONG YEARS THE DEFECTS POI NTED OUT WERE NOT REMOVED BY THE ASSESSEE AND EVEN NO EFFORTS IN THIS RESPECT WERE MADE, SO MUCH SO, EVEN AFTER DISMISSAL OF THE MAIN APPEAL ON 2.3.2015, THE PRESENT APPLICATION, THOUGH DATED 9.1 0.2015, HAS BEEN FILED ON 30.10.2015 AND THERE IS NO VALID EXPLANATI ON FOR THIS LONG DELAY (OF ABOUT EIGHT MONTHS). WE ARE CONSCIOUS THAT THE INSTANT APPEAL WAS DISMIS SED AS UNADMITTED BY THE TRIBUNAL UNDER RULE 12 OF THE INC OME TAX (APPELLATE TRIBUNAL) RULES, 1963, WHERE-UNDER THE T RIBUNAL MAY REJECT A MEMORANDUM OF APPEAL IF NOT IN THE PRESCRIBED FOR M OR RETURN IT FOR BEING AMENDED WITHIN SUCH TIME AS IT MAY ALLOW. THE APPEAL HAVING BEEN THUS NOT ADMITTED BY IT, THE QUESTION THAT THE REFORE ARISES IS IF AN APPLICATION U/S. 254(2) COULD ARISE IN-AS-MUCH AS T HE REJECTION OF A MEMORANDUM OF APPEAL COULD NOT POSSIBLY BE REGARDED AS AN ORDER U/S. 254(1) BY THE TRIBUNAL DISPOSING AN APPEAL AFT ER HEARING BOTH OR EVEN ONE OF THE PARTIES BEFORE IT, ADMITTING A RECO URSE TO S. 254(2). SO HOWEVER, ADMITTING THE APPLICATION U/S.254(2), WE P ROCEEDED TO HEAR THE PARTIES AT LENGTH IN THE MATTER, EXAMINING THE SAME IN ITS DIFFERENT ASPECTS, ONLY WITH A VIEW TO SEE IF ANY PREJUDICE H AD NOT BEEN CAUSED TO THE ASSESSEE-APPELLANT BY THE TRIBUNALS ACTION AFORE-SAID, I.E., IN REJECTING THE APPEAL MEMO IN THE MANNER DONE IN EXE RCISE OF ITS DISCRETION UNDER RULE 12. TO FIND NONE . IN FACT, THE LD. COUNSEL COULD 5 THE NAVYUG CO-OP. HSG. SOCY.LTD. MA NO. 247/MUM/2015 NOT SATISFACTORILY ANSWER THE BENCHS QUERY AS TO W HY, EVEN GRANTING SO, I.E., THE REASON STATED FOR NON-APPEARANCE IN T HE APPELLATE PROCEEDINGS, COULD THE MISCELLANEOUS APPLICATION NO T FOLLOW IMMEDIATELY AFTER THE IMPUGNED ORDER BY THE TRIBUNA L, BUT ONLY ON 30.10.2015, I.E., 8 MONTHS LATER. WE HAVE ALREADY N OTED THAT NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE NECESSA RY INFORMATION FOR COMPLETING FORM 36, GRANTING THAT THE SAME WAS NOT AVAILABLE WITH THE ASSESSEE, WAS BEING PURSUED FOR ITS COLLECTION FROM THE OFFICE OF THE LD. CIT(A) ON THE SAID DEFICIENCY OF WHICH THE ASSESS EE WAS EVEN OTHERWISE AWARE, BEING BROUGHT TO ITS NOTICE BY THE REGISTRY (OF THE TRIBUNAL) OR EVEN AFTER THE ASSUMPTION OF OFFICE BY THE COUNSEL, I.E., ON THEIR APPOINTMENT. THE AFFIDAVIT AVERRING THE FACTU AL REASONS FOR THE NON-APPEARANCE, WE ALSO NOTE, IS NOT BY THE COUNSEL APPOINTED FOR PROSECUTING THE APPEAL; THERE BEING IN FACT NO VAKA LATNAMA OR POWER OF ATTORNEY (IN FAVOUR OF ANY COUNSEL) ON RECORD IN THE APPEAL FOLDER. UNDER THE GIVEN FACTS CIRCUMSTANCES WE, ACCORDINGLY , FIND NOT MERIT IN THE ASSESSEES INSTANT PETITION, AND THE SAME IS AC CORDINGLY DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2016. SD/- SD/- S D SD/ - SD/ - ( SANJAY ARORA ) ACCOUNTANT MEMBER ( SANDEEP GOSAIN ) JUDICIAL MEMBER MUMBAI, DATE : 06 TH JUNE, 2016 *SSL* 6 THE NAVYUG CO-OP. HSG. SOCY.LTD. MA NO. 247/MUM/2015 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI