ANANT B. SHINDE (HUF), V. ITO 24(1)(3),

MA 290/MUM/2013

• Counselvise Citation: [2013] 130 COUNSELVISE.COM (IT) 0003 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 02-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AARSI PRASAD SRAR
• Keywords: Principle of natural justice; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A , MUMBAI BEFORE SHRI SANJAY ARORA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER MA NO. 290 /MUM/201 3 (ARISING OUT OF ITA NO. 6488 /MUM/20 12 DECIDED ON 17.05.13 ) (ASS ESSMEN T YEAR 2007 - 2008 ) MR . ANANT B. SHINDE HUF A - 603, WHISPERING HEIGHTS, MINDSPACE, CHINCHOLI BUNDER ROAD, MALAD (W) MUMBAI - 400 064 PAN: AADHA5440H VS. THE INCOME TAX OFFICER - 24 (1) (3) , BANDRA I.T. OFFICE MUMBAI - 400051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. GOPAL REVENUE BY : SHRI AARSI PRASAD SRAR , D.R. DATE OF HEARING : 20.09.13 DATE OF PRONOUNCEMENT : 30.09.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HA S BEEN MOVED BY THE ASSESSEE SEEKING RECTIFICATION OF CERTAIN ALLEGED MISTAKES CREPT IN THE ORDER DATED 17.05.13 PASSED IN ITA NO. 6488/MUM/201 2 WHICH ARE CLAIMED TO BE APPARENT FROM THE RECORD. THE MISTAKES , ALLEGED TO BE CREPT IN THE ORDER WHICH THE ASSE SSEE CLAIMED TO BE APPARENT ON RECORD , HAVE BEEN MENTIONED IN PARAGRAPH 3 OF THE APPLICATION , WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 3. THE HON B L E BENCH DISMISSED THE APPEAL BY MAKING CERTAIN OBSERVATIONS IN PARAGRAPH 5 AT PAGES 4 - 6 OF THE ORDER DATED 17/05/20 13. THE APPLICATION MA NO.290/M/1 3 (ARISING OUT OF ITA NO.6488/M/12) MR. ANANT B. SHINDE HUF 2 WITH RESPECT TO THE ORDER PASSED BY THE HONBLE BENCH WANT TO STATE & SUBMIT AS UNDER TO SHOW THAT CERTAIN MISTAKES APPARENT ON RECORD HAVE CREPT IN. THE HONBLE BENCH MAY BE PLEASED TO RECTIFY THE SAME BY EXERCISING THE DISCRETION AVAILABLE U/S . 254(2) OF INCOME TAX ACT, 1961 ( HEREIN AFTER REFERRED TO AS THE ACT) AND GRANT RELIEF TO THE APPLICANT AFTER CONSIDERING THE FOLLOWING. I) THE HONBLE BENCH IN PARAGRAPH 5 AT PAGE 4 OF THE ORDER HAS OBSERVED THAT T HE APPLICANT HAS NOT BEEN FAIR SINCE INCEPTION OF THE PROCEEDINGS. THE APPLICANT, WITH DUE RESPECT, MENTIONS THAT THIS OBSERVATION HAS BEEN MADE WITHOU T APPRECIATING THE FACT AND MATERIAL PLACED ON RECORD. THE APPLICANT HAS FILED AN AFFIDAVIT STATING ALL T HE FACTS WHICH LED TO THE UNFORTUNATE SITUATION. THE APPLICANT HAD SPECIFICALLY POINTED OUT THAT HE IS NOT CONVERSANT WITH TAXATION LAWS AND APPOINTED A DULY QUALIFIED PERSON TO LOOK AFTER HIS TAXATION MATTERS. THE APPLICANT WAS PRESENT DURING THE COURSE O F HEARING ON 18/03/20 13. THE APPLICANT STATES THAT HE WAS NEITHER EXAMINED ON THE CONTENTS OF THE AFFIDAVIT NOR GIVEN ANY OPPORTUNITY TO REBUT THE ALLEGATIONS MADE IN THE ORDER. THE APPLICANT SUBMITS THAT THE HONBLE S UPREME COURT IN THE CASE MEHTA PAREKH & CO. VS CIT (1956) 30 ITR 181 (SUPREME COURT) HAS OBSERVED AS UNDER: IT HAS TO BE NOTED, HOWEVER, THAT BEYOND THESE CALCULATIONS OF FIGURES, NO FURTHER SCRUTINY WAS MADE BY ITO OR THE AA C OF THE ENTRIES IN THE CASH BOOK OF THE APPELLANTS. THE CASH BOOK OF THE APPELLANTS WAS ACCEPTED AND THE ENTRIES THEREIN WERE NOT CHALLENGED. NO FURTHER DOCUMENTS OR VOUCHERS IN RELATION TO THOSE ENTRIES WERE CALLED FOR, NOR WAS THE PRESENCE OF THE DEPONENTS OF THE THREE AFFIDAVITS CONSIDERED NECESSARY BY EITHER PARTY. THE APPELLANTS TOOK IT THAT THE AFFIDAVITS OF THESE PARTIES WERE ENOUGH AND NEITHER THE AAC, NOR THE ITO, WHO WAS PRESENT AT THE HEARING OF THE APPEAL BEFORE THE AAC, CONSIDERED IT NECESSARY TO CALL FOR THEM IN ORDER TO CROSS - EXAMINE THEM WITH REFERENCE T O THE STATEMENTS MADE BY THEM IN THEIR AFFIDAVITS . UNDER THIS CIRCUMSTANCE, IT WAS NOT OPEN TO THE REVENUE TO CHALLENGE THE CORRECTNESS OF THE CASH ENTRIES OR THE STATEMENTS MADE BY THOSE DEPONENTS IN THEIR AFFIDAVITS. II ) THE HONBLE BENCH AT PAGE 9 OF THE ORDER HAS REFERRED TO THE CASE LAWS RELIED UPON BY THE APPLICANT AND HAS HELD THAT THE RATIO OF THE SAME IS NOT APPLICABLE TO THE APPLICANTS CASE. WITH DUE RESPECT, THE APPLICANT WANTS TO POINT OUT THAT IN CLAUSE 8 OF THE AFFIDAVIT, IT WAS SPECIFICALLY ME NTIONED THAT THE MAJOR ADDITION IN THE ASSESSMENT ORDER WAS ON ACCOUNT OF CREDITORS. THE SAME WAS VERIFIED DURING THE COURSE OF THE REMAND PROCEEDINGS AND THE SAME FOUND TO BE GENUINE IN THE REMAND REPORT DATED 16/05/2012 WHICH IS AVAILABLE AT THE PAGES 10 AND 11 OF THE PAPER BOOK. THUS, THE APPLICANT CONTENDED WHEN SUBSTANTIAL JUSTICE IS IN FAVOUR OF A MA NO.290/M/1 3 (ARISING OUT OF ITA NO.6488/M/12) MR. ANANT B. SHINDE HUF 3 SMALL ASSESSEE THEN DUE TO TECHNICALITIES HE SHOULD NOT BE DENIED JUSTICE. THE HONBLE BENCH HAS NOT CONSIDERED THIS ASPECT OF THE ARGUMENT IN THE LIGHT OF THE APEX COURT DECISION RELIED ON BY THE APPLICANT. III) THE HONBLE BENCH HAS FURTHER OBSERVED THAT, THE ASSESSEE HAS TO SUFFER FOR NOT FILING APPEAL WITHIN THE PERIOD OF LIMITATION WHEN IT WAS NOT PREVENTED FROM ANY SUFFICIENT CAUSE, AS THE SUBSTANTIVE RIGHT ACCRUED IN FAVOUR OF THE OTHER PARTY CANNOT BE TAKEN AWAY WITHOUT ANY REASONABLE GROUND. IN OUR VIEW, THE LEARNED CIT (A) HAS RIGHTLY DISMISSED THE APPLICATION FOR CONDONATION OF DELAY AND HEREBY APPEAL OF THE ASSESSEE BEING BARRED BY LIMITATION. TH E FINDING OF THE LEARNED CIT (A) IN RESPECT OF THE MATTER IS HEREBY UPHELD. THE APPLICANT, WITH DUE RESPECT TO THE HONBLE BENCH, STATES AND SUBMITS THAT THE REMAND REPORT DATED 16/05/2012 CLEARLY SHOWS THAT NO SUBSTANTIVE RIGHT IN FAVOUR OF THE OTHER SID E HAS ACCRUED. THE DELAY IN FILING THE APPEAL WAS DUE TO SEVERAL UNFORTUNATE CIRCUMSTANCES BEYOND THE CONTROL OF THE APPLICANT. THE HUGE DEMAND IS FASTENED TO THE APPLICANT DUE TO TECHNICAL REASONS. THE APPLICANT HAS NO MEANS TO PAY SUCH HUGE DEMAND AND MA Y LOSE THE ONLY RESIDENCE WHICH KARTA HAS. THUS, THE APPLICANT PRAYS THAT THE HONBLE BENCH MAY APPRECIATE THAT THE MISTAKES APPARENT ON RECORD WILL CAUSE IRREPARABLE HARM AND INJUSTICE WHICH SHALL RESULT IN TO PERMANENT HARDSHIP. IV) THE APPLICANT FURTH ER STATES AND SUBMITS THAT THE HONBLE BENCH AT PAGE 6, 7 AND 8 HAS REFERRED TO T HE FOLLOWING CASE LAWS WHICH WERE NOT CITED DURING THE COURSE OF HEARING BY ANY OF THE PARTIES TO THE DISPUTE. I. KRISHAN DEV DHIMAN VS MAHESH BHATIA & OTHERS, RSA NO. 3142 OF 2006 DECIDED ON 08/04/2008 BY PUNJAB & HARYANA HIGH COURT. II . P.K. RAMACHANDRAN VS STATE OF KERALA (1997) 7 SCC 556 III. MUNICIPAL CORPORATION OF DELHI VS. INTERNATIONAL SECURITY AND INTELLIGENCE AGENCY LTD. (2014) 3 SCC 250 IV. BHAGWNA VS TARA CHAND AN D OTHERS, CM NO.11634 - C OF 2007 IN RSA NO. 4122 OF 2007 V. G. RAMEGOWDA, MAJOR VS SPECIAL LAND ACQUISITION 1988 AIR 897 SUPREME COURT. VI. MOHAN PRASAD SINGH DEO VS GANESH PRASAD BHAGAT AIR 1952 O RI 168 THUS, THE APPLICANT NEVER GOT AN OPPORTUNITY TO DE AL WITH THESE CASE LAWS AND SHOW HOW RATIO LAID DOWN IN THESE CASE LAWS IS NOT APPLICABLE TO THE FACTS OF THE APPLICANTS CASE. MA NO.290/M/1 3 (ARISING OUT OF ITA NO.6488/M/12) MR. ANANT B. SHINDE HUF 4 V) THE APPLICANT FURTHER SUBMITS THAT THE HONBLE BENCH HAS DETERMINED THE ISSUE IN DISPUTE RELYING ON CASE LAWS WHICH WERE NOT BROUGHT TO THE NOTICE OF THE APPLICANT. THUS, THE APPLICANT HAS NOT BEEN AFFORDED AN OPPORTUNITY TO DISTINGUISH THE SAME. THE ISSUE IN DISPUTE HAS BEEN DETERMINED IN BREACH OF PRINCIPAL OF NATURAL JUSTICE. 2 . WE HAVE HEARD THE LD. COUNSEL FOR THE ASSES SEE AS WELL THE DEPARTMENTAL REPRESENTATIVE AND ALSO GONE THROUGH THE IMPUGNED ORDER. 3 . A PERUSAL OF THE ABOVE POINTED MISTAKES BY THE ASSESSEE REVEALS THAT THE SAME DO NOT FALL IN THE DEFINITION OF ANY MISTAKE AS HAS BEEN ALLEGED BY THE ASSESSEE. T HE ABOVE NOTED SUBMISSIONS , AT THE MOST CAN BE SAID TO BE THE ARGUMENTS ON MERITS OF THE CASE , WHICH HA S ALREADY BEEN ADJUDICATED BY US VIDE IMPUGNED ORDER. THE ASSESSEE THROUGH THIS RECTIFICATION APPLICATION HAS RAISED ISSUES RELATING TO FACTUAL MATRIX O F THE CASE. IT MAY BE OBSERVED THAT THE LD. CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF LIMITATION. SINCE W E, VIDE IMPUGNED OR DER DATED 17.05.13, HAVE UPHELD THE ORDER OF THE LD. CIT(A) , HENCE THE PLEADINGS ON THE FACTUAL MATRIX OF THE CA SE MADE IN THE PRESENT RECTIFICATION APPLICATION AT THIS STAGE ARE OF NO CONSEQUENCES. THIS TRIBUNAL HAS NO JURISDICTION TO RECALL OR REVIEW ITS ORDER PASSED ON MERITS WHILE DEALING WITH AN APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT. IF THE A SSESSEE HAS ANY GRIEVANCE AGAINST THE IMPUGNED ORDER , PROPER COURSE TO AGITATE THE SAME IS BY FILING AN APPEAL BEFORE THE NEXT APPELLATE AUTHORITY BUT NOT WITH THE PRESENT APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT. THE OTHER CONTENTIONS RAISE D BY THE ASSESSEE THROUGH THIS APPLICATION HAVE ALREADY BEEN DULY CONSIDERED AND ADJUDICATED IN THE IMPUGNED ORDER AND WE DO NOT FIND ANY MISTAKE APPARENT ON THE RECORD OF THE SAID ORDER WHICH MAY REQUIRE ANY RECTIFICATION. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE MA NO.290/M/1 3 (ARISING OUT OF ITA NO.6488/M/12) MR. ANANT B. SHINDE HUF 5 PRESENT MISCELLANEOUS APPLICATION OF THE APPLICANT/ASSESSEE AND THE SAME IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09. 2013. SD/ - SD/ - (SANJAY ARORA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.09. 2013. * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.