SANJAY B. AGRAWAL, V. ITO WD 17(11),

MA 280/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0027 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 1993-1994
• Appeal Filed On: 16-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

1 MA NO. 280/MUM/ 2011 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI P. M. JAGTAP, AM MA NO. 280/MUM/2011 ARISING OUT OF ITA NO. 1791/MUM/1999 ASSESSMENT YEAR 1993-94 SHRI SANJAYKUMAR B AGRAWAL, 11/83, OM DARIYA MAHAL, 80, NEPEANSEA ROAD, MUMBAI 400 007. PAN AACPA0554B VS. THE INCOME TAX OFFICER, WARD 17(11), MUMBAI. APPLICANT RESPONDENT APPLICANT BY SHRI RAJIV KHANDELW AL RESPONDENT BY MISS NEERAJA PRADHAN ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 19-01-2011 PASSED IN ITA NO. 1791/MUM/1999 FOR A.Y 1993-94. 2. WHILE SUPPORTING THIS MISC. APPLICATION FILED BY THE ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ONE OF THE PRELIMINARY ISSUES RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF REASSESSME NT MADE BY THE A.O. FOR THE FAILURE OF THE A.O. TO PROVIDE THE REASONS RECORDED FOR REOPENING, HAS NOT BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER DTD. 19-01- 2011 (SUPRA). HE SUBMITTED THAT AN APPLICATION DTD. 28-08-2006 WAS MOVED BY TH E ASSESSEE IN THIS REGARD IN THE RECALLED PROCEEDINGS SEEKING PERMISSION TO M ODIFY THE ALREADY ADMITTED 2 MA NO. 280/MUM/ 2011 ADDITIONAL GROUND OF APPEAL BUT THE SAME HAS NOT BE EN CONSIDERED BY THE TRIBUNAL. HE ALSO SUBMITTED THAT EVEN THE AFFIDAVI T DTD. 8-01-2011 FILED ON BEHALF OF THE ASSESSEE AS WELL AS THE WRITTEN SUBMI SSIONS DTD. 5-01-2011 HAVE NOT BEEN TAKEN INTO CONSIDERATION BY THE TRIBUNAL W HILE PASSING THE ORDER DTD. 19-01-2011 (SUPRA). HE CONTENDED THAT THE NON-CONS IDERATION OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THE ORD ER OF THE TRIBUNAL DTD. 19- 01-2011 (SUPRA) THUS HAS GIVEN RISE TO A MISTAKE AP PARENT FROM RECORD WHICH IS REQUIRED TO BE RECTIFIED U/S 254(2) OF THE INCOME T AX ACT, 1961. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT EVEN IN THE ADDITIONAL GROUND AS MODIFIED BY THE ASSESSEE, THE ISSUE RELAT ING TO VALIDITY OF RE- ASSESSMENT FOR THE FAILURE OF THE A.O. TO PROVIDE T HE REASONS RECORDED FOR REOPENING WAS NOT RAISED BY THE ASSESSEE. HE SUBMI TTED THAT EVEN IN THE AFFIDAVIT FILED ON BEHALF OF THE ASSESSEE AS WELL A S IN THE WRITTEN SUBMISSIONS PLACED ON RECORD, THIS ISSUE WAS SPECIFICALLY HIGHL IGHTED OR ANY SUBMISSIONS THEREON WERE NOT SPECIFICALLY MADE BY THE ASSESSEE. HE CONTENDED THAT THE ORDER OF THE TRIBUNAL DTD. 19-01-2011 (SUPRA) THUS DOES NOT SUFFER FROM ANY MISTAKE AS ALLEGED BY THE LD. COUNSEL FOR THE ASSES SEE CALLING FOR RECTIFICATION U/S 254(2) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE APPLIC ATION DTD. 28-8-2006 WAS MOVED BY THE ASSESSEE DURING THE COURSE OF RECALLED PROCEEDINGS SEEKING 3 MA NO. 280/MUM/ 2011 PERMISSION TO MODIFY THE ALREADY ADMITTED ADDITIONA L GROUNDS AND THE MODIFIED GROUNDS AS SOUGHT TO BE ADMITTED BY THE SAID APPLIC ATION WERE AS UNDER:- I) WHETHER THE LD. A.O. WAS JUSTIFIED TO COMPLETE T HE ASSESSMENT U/S 143(3) BEYOND THE LIMITATION PROVISIONS UNDER SEC. 153 ? II) WHETHER THE LD. A.O. WAS JUSTIFIED BY INVOKING SEC. 147/148 ONLY FOR THE PURPOSE OF DEEP SCRUTINY BASED ONLY UPON A NON-ES T RETURN DTD. 31-03- 96 ? III) WITHOUT PREJUDICE, WHETHER THE LD. A.O. WAS JUSTIFI ED TO REVIEW HIS OWN DECISION BY WHICH THE LATE RETURN WAS TREATED NON-E ST AND ON THE OTHER HAND BY TREATING THE SAME RETURN AS A VALID RETURN ? IV) WITHOUT PREJUDICE, WHETHER THE LD. A.O. WAS JUSTIFI ED THAT NO COGNIZANCE TAKEN ON 31-03-96 I.E. ON THE DATE OF FILING THE NO N-EST RETURN WHEREAS RECORD SHOWS THAT ON THE SAME DATE HE HAS VERIFIED THE NON-EST RETURN ?. AS IS CLEARLY EVIDENT FROM THE ABOVE, THE ISSUE CHA LLENGING THE VALIDITY OF REASSESSMENT MADE BY THE A.O. ON THE GROUND THAT TH ERE WAS A FAILURE ON THE PART OF THE A.O. TO PROVIDE THE REASONS RECORDED FO R REOPENING TO THE ASSESSEE WAS NOT SPECIFICALLY RAISED. EVEN IN THE AFFIDAVIT DTD. 8-01-2011 FILED BY SHRI V.K. TULSIYAN, AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE, THERE WAS NO MENTION OF THIS ISSUE OR ANY SUBMISSIONS RELATING T HEREON WHICH IS CLEARLY EVIDENT FROM THE CONTENTS OF THE SAID AFFIDAVIT, WH ICH ARE REPRODUCED HEREUNDER:- 1. THAT I, THE UNDERSIGNED DEPONENT APPEARING IN THE A BOVE APPEAL ON BEHALF OF THE APPELLANT IN THE CAPACITY OF AUTHORIS ED REPRESENTATIVE AND AS SUCH I AM FULLY CONVERSANT WITH THE FACTS OF THE CASE AN D COMPETENT TO SWEAR THIS AFFIDAVIT. 2. THAT I, MOVED AN APPLICATION TO THE LD. ASSESSIN G OFFICERS FOR INSPECTION OF RECORD ON 06-01-2011 AND DURING INSPECTION IT CA ME TO MY KNOWLEDGE THAT THERE WERE NO SEPARATE REASONS RECORDED AND ON INQU IRING FROM THE LD. A.O., HE WAS IN AGREEMENT THAT NO SEPARATE REASONS RECORDED EXCEPT THE ORDER SHEET ENTRY DATED 03-09-1996 AND THE SAME ORDER SHEET ENT RY WERE INCORPORATED IN THE ASSESSMENT ORDER. 4 MA NO. 280/MUM/ 2011 SD/- (DEPONENT) IN THE WRITTEN SUBMISSIONS DTD. 5-01-2011 FILED ON BEHALF OF THE ASSESSEE, REFERENCE NO DOUBT WAS MADE BY THE ASSESSEE TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ALLANA COLD STORAG E LTD. V. INCOME-TAX OFFICER (2006) 287 ITR 1 (BOM.) AND THAT OF THE HON BLE APEX COURT DECISION IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. V. INCOME- TAX OFFICER (2003) 259 ITR 19 (SC) WHEREIN IT WAS HELD THAT THE A.O. IS BOUND TO PROVIDE THE REASONS. HOWEVER, THERE WAS NO FURTHER SUBMISSION MADE BY TH E ASSESSEE TO THE EFFECT THAT IN ITS OWN CASE, THERE WAS A FAILURE ON THE PA RT OF THE A.O. TO PROVIDE THE REASONS FOR REOPENING WHICH VITIATED THE REASSESSME NT. IN ANY CASE, IN THE ABSENCE OF THIS ISSUE HAVING BEEN RAISED BY THE ASS ESSEE SPECIFICALLY EVEN IN THE MODIFIED ADDITIONAL GROUND, IT IS DIFFICULT TO COMP REHEND HOW THE SUBMISSIONS ALONE MADE BY THE ASSESSEE ON THIS ISSUE COULD BE E NTERTAINED OR CONSIDERED BY THE TRIBUNAL. THE FACTUAL POSITION WHICH BORNE OUT FROM THE RECORD IS THAT THE ISSUE CHALLENGING THE VALIDITY OF REASSESSMENT ON T HE GROUND OF THE FAILURE OF THE A.O. TO PROVIDE THE REASONS RECORDED FOR REOPEN ING TO THE ASSESSEE WAS NOT RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL BY TAKIN G A SPECIFIC GROUND AND THIS BEING SO, WE ARE OF THE VIEW THAT THERE IS NO MISTA KE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE ASSESSE E IN THE PRESENT MISC. APPLICATION. WE THEREFORE DISMISS THE SAID MISC. A PPLICATION BEING DEVOID OF ANY MERIT. 5 MA NO. 280/MUM/ 2011 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 08-03-2013. SD/- SD/- (D. MANMOHAN) (P.M. JAGTAP) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 08-03-2013. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED - MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, F 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI