PHOOLVASI HEERA SINGH, MUMBAI V. INCOME TAX OFFICER WARD 20(2)(5), MUMBAI

MA 274/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6327 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: SANJAY R PAREKH
• Keywords: Bogus purchase; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER M.A. NO.27 4 /MUM./2017 ( ARISING OUT OF ITA NO . 77 4 /MUM. /201 6 ) ( ASSESSMENT YEAR : 2009 10 ) SMT. PHOOLVASI HEERA SINGH NR. ABHYUDAYA CO. OP. BANK QUARY STREET, DARUKHANA READY ROAD MUMBAI 400 010 PAN ANUPS3834K . APPL ICANT V/S INCOME TAX OFFICER WARD 20(2)(1), MUMBAI . RESPONDENT ASSESSE E BY : SHR I SANJAY R. PAREKH REVENUE BY : SHR I RAJAT MITTAL DATE OF HEARING 02.02.2018 DATE OF ORDER 21.02.2018 O R D E R PER SAKTIJIT DEY, J.M. BY THIS APPLICATION, THE ASSESSEE SEEKS RECALL OF THE ORDER DATED 30 TH NOVEMBER 2016, PASSED IN ITA NO.77 4 /MUM./2016. 2 . BRIEF FACTS ARE, ASSESSEES APPEAL WAS POSTED FOR HEARING ON 1 6 TH NOVEMBER 2016 BEFORE T HE TRIBUNAL. ON THE SAID DATE M S. SANJUKTA CHOWDHURY , COUNSEL, MADE AN ORAL REQUEST FOR ADJOURNMENT OF THE APPEAL. SINCE THE CONCERNED COUNSEL WAS NOT HAVING ANY AUTHORITY TO APPEA R ON BEHALF OF THE ASSESSEE, THE BENCH ADJOURNED THE HEARING OF 2 SMT. PHOOLVASI HEERA SINGH APPEAL TO THE NEXT DATE I.E., 17 TH NOVEMBER 2016, TO ENABLE THE COUNSEL TO APPEAR BEFORE THE TRIBUNAL BEING PROPERLY AUTHORISED BY THE ASSESSEE. HOWEVER, IN SPITE OF BEING AWARE OF THE COURSE OF PROCEEDINGS THAT TOOK PLACE BEFORE THE BENCH ON 16 TH NOVEMBER 2017, NEITHER THE CONCERNED COUNSEL NOR ANY OTHER PERSON ON BEHALF OF THE ASSESSEE APPEARED BEFORE THE TRIBUNAL TO REPRESENT THE CASE OR EVEN SEEK AN ADJOURNMENT ON 17 TH NOVEMBER 2017. THEREFORE, IN THE GIVEN CIRCUMSTANCES AND CONSIDERING THE NATURE OF DISPUTE THE TRIBUNAL PROCEEDED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE WITH THE ASSISTANCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3 . IN THE PRES ENT APPLICAT ION, THE ASSESSEE HAS SOUGHT RECALL OF THE APPEAL ORDER ON THE GROUND THAT THE CONCERNED COUNSEL WAS UNABLE TO OBTAIN THE LETTER OF AUTHORITY FROM THE ADVOCATE OF THE ASSESSEE, HENCE, COULD NOT APPEAR BEFORE THE TRIBUNAL TO REPRESENT THE CASE. AN AFFIDAVIT HAS BEEN FILED BY MS. SANJUKTA CHOWDHURY , STATING THE REASONS FOR NON APPEARANCE ON 17 TH NOVEMBER 2016, WHICH ARE SIMILAR TO WHAT HAVE BEEN STATED IN THE M.A. HOWEVER, IT IS PERTINENT TO ME NTION HERE THAT IN THE M.A. THE ASSESSEE W AS REPRESENTED BY SHRI SANJAY R. P AREKH, AND NOT BY MS. SANJUKTA CHOWDHURY . BE THAT AS IT MAY, THE LEARNED AUTHORISED REPRESENTATIVE REITERATING THE FACTS STATED IN M.A. AND THE ACCOMPANYING AFFIDAVIT SUBMITTED FOR RECALLING OF THE APPEAL ORDER. 3 SMT. PHOOLVASI HEERA SINGH 4 . LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE RECALL OF THE APPEAL ORDER PASSED BY THE TRIBUNAL. 5 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. NOTABLY, IN THE M.A., IT HAS BEEN STATED BY THE ASSESSEE THAT THE TRIBUNAL HAS INHERENT POWER TO RECTIFY A WRONG AND / OR CORRECT ERROR COMMITTED BY IT. HOWEVER, IN OUR VIEW, WHILE DISPOSING OFF ASSESSEES APPEAL EX PARTE, THE TRIBUNAL HAS NEITHER COMMITTED ANY WRONG OR ERROR WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. AS DISCUSSED EARLIER, ASSESSEES APPEAL THOUGH WAS HEARD E X PARTE, HOWEVER, IT WAS DECIDED ON MERITS ON THE BASIS OF FACTS AND MATERIAL AVAILABLE ON RECORD . RULE 24 OF THE INCOME TAX (APPELLATE) TRIBUNAL RULES, 1963, EMPOWERS THE TRIBUNAL TO DECIDE THE APPEAL FILED BY THE APPELLANT EX PARTE IF THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED FOR HEARING. HOWEVER, THE TRIBUNAL HAS TO DECIDE THE APPEAL ON MERIT. OF COURSE, THE PROVISO TO THE SAID RULE CARVES OUT AN EXCEPTION BY EMPOWERING THE TRIBUNAL TO RECAL L THE EX PARTE ORDER IF THE ASSESSEE APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING. THUS, A READING OF SECTION 254(2) OF THE ACT ALONG WITH RULE 24 OF THE ITAT RULES WOULD MAKE IT CLEAR THAT THE TRIBUNAL CAN RECALL AN APPEAL ORDER UNDER TWO SITUATIONS. FIRSTLY, IF THERE IS A MISTAKE APPARENT ON 4 SMT. PHOOLVASI HEERA SINGH THE FACE OF RECORD AS PER SECTION 254(2) AND SECONDLY, IF THE APPEAL ORDER IS PASSED EX PARTE, THE TRIBUNAL CAN RECALL IT UNDER RULE 24 OF THE ITAT RULES IF IT IS SATISFIED THAT THE NON COMPLIANCE OF THE ASSESSEE WAS FOR SUFFICIENT CAUSE. THEREFORE, THE RECALL OF THE APPEAL ORDER IS NOT AUTOMATIC BUT BOUND BY CERTAIN CONDITIONS. IN THE FACTS OF THE PRESENT CASE, APPARENTLY, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS ENVISAGED UNDER SECTION 254(2) OF THE ACT. THEREFORE, ONLY PROVISION UNDER WHICH THE OR DER COULD HAVE BEEN RECALLED IS RULE 24 OF THE ITAT RULES SUBJECT TO FULFILMENT OF THE CONDITIONS PRESCRIBED THEREUNDER. AFTER CONSIDERING THE FACTS STATED IN M.A. AND THE ACCOMPANYING AFFIDAVIT, WE ARE NOT SATISFIED THAT THE NON APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON THE DATE FIXED WAS DUE TO SUFFICIENT CAUSE. THEREFORE, WE DECLINE TO EXERCISE OUR POWER UNDER RULE 24 OF ITAT RULES FOR RECALLING THE EX PARTE ORDER. 6 . IN ANY CASE OF THE MATTER, THE ISSUE INVOLVED IS ESTIMATION OF PROFIT ON BOGUS P URCHASE . UNDISPUTEDLY, BEFORE THE DEPARTMENT AL AUTHORITIES, THE ASSESSEE HAS FAILED TO PROVE THE GENUINE NESS OF THE PURCHASES THROUGH C ONC LUSIVE DOCUMENTARY EVIDENCES. THEREFORE, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND FINDING IT TO BE REASONABLE , THE TRIBUNAL UPH E LD THE ESTIMATION OF PROFIT @ 12.5% OF THE BOGUS PURCHASES AS DIRECTED BY THE LEARNED COMMISSIONER (APPEALS) . SINCE , THE AFORESAID DECISION OF THE TRIBUNAL IS CONSISTENT 5 SMT. PHOOLVASI HEERA SINGH WITH THE VIEW EXPRESSED BY THE TRIBUNAL IN ADOPTING THE PROFIT RATE @ 12.5%, IN SIMILAR NATURE OF APPEALS, IN OUR CONSIDERED VIEW, NO USEFUL PURPOSE WILL BE SERVED IN RECALLING THE APPEAL ORDER. IN VIEW OF THE AFORESAID, WE ARE NOT IN FAVOUR OF RECALLING THE APPEAL ORDER. 7 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 21.02.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 21.02.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI .