BHARAT SEKHSARIA, V. DCIT CEN CIR 6,

MA 254/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5322 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2002-2003
• Appeal Filed On: 16-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Assessee Lawyers: BHARAT SEKHSARIA
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I BEFORE SHRI D. MANMOHAN (VP) & SHRI PRAMOD KUMAR (A M) M.A. NO. 254/MUM/2010 ARISING OUT OF I.T.A.NO.2070/MUM/2008 (ASSESSMENT YEAR : 2002-03) BHARAT SEKHSARIA 719, ROTUNDA, B.S. MARG, FORT, MUMBAI-400 023. VS. DCIT, C.C. 6 MUMBAI. APPLICANT RESPONDENT APPLICANT BY : SHRI BHARAT SEKHSARIA DEPARTMENT BY : SHRI S.K. MAHAPATRA DR ORDER PER D. MANMOHAN, VP 1. CONSEQUENT TO THE ORDER DATED 31 ST MARCH, 2010 PASSED BY THE ITAT, I BENCH, MUMBAI THE ASSESSEE FILED THIS MIS CELLANEOUS APPLICATION CONTENDING, INTER ALIA, THAT THE ORDER OF THE TRIBU NAL SUFFERS FROM MISTAKES OF FACTS AND LAW ; IN PARTICULAR IT WAS SU BMITTED THAT THOUGH THE ASSESSEE HAS RAISED AS MANY AS 11 GROUNDS, IN THE G ROUNDS OF APPEAL ANNEXED TO FORM 36, AT THE TIME OF HEARING ONLY GRO UND NO. 11 WAS PERMITTED TO BE ARGUED WITH AN IMPLIED SUGGESTION T HAT IN THE EVENT OF TAKING AN ADVERSE VIEW WITH REGARD TO GROUND NO. 11 OTHER GROUNDS SHALL BE TAKEN-UP FOR HEARING. BUT, WHILE PASSING THE ORD ER, THE TRIBUNAL WRONGLY RECORDED THAT GROUND NOS. 1 TO 10 WERE NOT PRESSED AND GROUND NO. 11 WAS REJECTED, THUS RESULTING IN MISCARRIAGE OF JUSTICE. 2. LEARNED COUNSEL SHRI RAJEEV KUMAR, ADVOCATE HAS ALSO FILED AN AFFIDAVIT WHEREIN IT WAS SUBMITTED THAT THOUGH THE ASSESSEE WAS WILLING TO ADVANCE HIS ARGUMENTS ON GROUND NOS. 1 TO 10 THE BENCH HAS WRONGLY PROCEEDED ON THE FOOTING THAT GROUND NOS. 1 TO 10 W ERE NOT PRESSED; EVEN WITH REGARD TO GROUND NO. 11, IT WAS CONTENDED, DES PITE FILING WRITTEN SUBMISSIONS THE CASE LAW RELIED UPON BY THE ASSESSE E WERE NOT TAKEN INTO CONSIDERATION AS REGARDS THE VALIDITY OF ASSES SMENT MADE UNDER BHARAT SEKHSARIA 2 SECTION 143 (3) OF THE ACT. THE CASE WAS TAKEN-UP O N NUMBER OF OCCASIONS TO ENSURE THE ATTENDANCE OF THE LEARNED D R WHO WAS PRESENT AT THE TIME OF PRESENTING THE MATTER BEFORE THE BENCH WHILE HEARING THE APPEAL FILED UNDER SECTION 253 (3) OF THE ACT. AS P ER THE DIRECTIONS OF THE BENCH SHRI MAHAPATRA APPEARED BEFORE US ALONG WITH THE REGULAR D.R. AND IT WAS SUBMITTED THAT ASSESSEE HAD AT NO STAGE OF THE PROCEEDINGS CONCEDED WITH REGARD TO GROUND NOS. 1 TO 10 AND HEN CE, THE ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD TO THAT EXTENT. HOWEVER, AS REGARDS THE DECISION WITH REGARD TO GRO UND NO. 11 IT WAS CONTENDED THAT THOUGH THE ASSESSEE HAS FILED WRITTE N SUBMISSIONS TO STATE THAT NO NOTICE UNDER SECTION 143 (2) OF THE A CT WAS ISSUED BY THE DEPARTMENT, THE TRIBUNAL HAS TAKEN NOTE OF THE CIRC UMSTANCES OF THE CASE TO ANALYSE THE VERACITY OF THE CONTENTION OF T HE ASSESSEE WITH REGARD TO NON-SERVICE OF NOTICE AND FINALLY ARRIVED AT THE CONCLUSION THAT THE PLEA OF THE ASSESSEE WITH REGARD TO NON-SERVICE OF NOTIC E DESERVES TO BE REJECTED; BEARING IN MIND THE FACTUAL MATRIX OF THE CASE, THERE WAS NO NEED FOR THE BENCH TO REFER TO SEVERAL CASES RELIED UPON BY THE LEARNED COUNSEL SINCE EACH CASE TURNS ON ITS FACTS. IT WAS THEREFORE, CONTENDED THAT THE DECISION WITH REGARD TO GROUND NO. 11 CANN OT BE INTERFERED WITH AT THIS STAGE AND THE PLEA OF THE ASSESSEE, IF ACCE PTED, WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PE RMISSIBLE UNDER SECTION 254 (2) OF THE ACT. 3. IT MAY BE NOTICED HEREIN THAT THOUGH THE COUNSEL HAS DILIGENTLY APPEARED FROM TIME TO TIME, ON THE FINAL DATE OF HE ARING HE COULD NOT MARK HIS PRESENCE. BUT THE ASSESSEE APPEARED AS PAR TY IN PERSON AND REQUESTED FOR TIME ON THE GROUND THAT HIS COUNSEL I S SLATED TO APPEAR BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COM MISSION AND HENCE HE IS UNABLE TO PRESENT HIMSELF. HOWEVER, IN THE LIGHT OF ADMISSION BY THE LEARNED DR WE ARE OF THE OPINION THAT THERE IS NO NEED TO GRANT FURTHER ADJOURNMENT, GIVING DUE WEIGHTAGE TO THE SU BMISSIONS OF THE LEARNED DR AS WELL AS LEARNED COUNSEL FOR THE ASSES SEE THAT GROUND NOS. 1 TO 10 WERE NOT TAKEN-UP FOR HEARING ORIGINALLY. I N THE INTEREST OF JUSTICE BHARAT SEKHSARIA 3 WE, THEREFORE, RECALL OUR ORDER DATED 31 ST MARCH, 2010 WITH A DIRECTION TO THE REGISTRY TO FIX THE APPEAL FOR FRESH HEARING WI TH REGARD TO GROUND NOS. 1 TO 10 ONLY. 4. HOWEVER, AS REGARDS GROUND NO. 11 THERE IS NO M ISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRI BUNAL AND HENCE IT IS NOT A FIT CASE TO BE CONSIDERED UNDER SECTION 254 ( 2) OF THE ACT. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF NOVEMBER, 2010. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE PRESIDENT DATED : 26 TH NOVEMBER, 2010 VBP/- COPY TO : 1. BHARAT SEKHSARIA, 719, ROTUNDA, B.S. MARG, FORT , MUMBAI 023. 2. DCIT, CENTRAL CIRCLE-6, MUMBAI. 3. CIT (A), CENTRAL-1, MUMBAI. 4. CIT, CENTRAL-1, MUMBAI. 5. DR I BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI BHARAT SEKHSARIA 4 DATE INITIALS 1. DRAFT DICTATED ON: 22.10.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 23.10.2010 SR. PS/P S 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER : JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/ AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/ PS 6. ORDER PRONOUNCED ON: .10.2010 SR. PS/PS 7. ORDER COME BACK TO SR.PS/PS 8. FILE SENT TO THE BENCH CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: 10. DATE OF DISPATCH OF ORDER: