KUSHAL SOFTWARE LTD, V. ITO 4(2)(4),

MA 336/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3062 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK A PERAMPURNA
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' A ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA , ACCOUNTANT MEMBER MA NO. 336/MUM/2014 (ARISING OUT OF ITA NO. 173/MUM/2010) (ASSESSMENT YEAR: 2006 - 07 ) SWARNA JYOTHI AGROTECH & POWER LTD. VS. INCOME TAX OFFICER - 4(2)(4) ( MA FILED IN THE NAME OF OCTANT INDUSTRIES LTD.) ORINDAM AIRLINES COLONY OPP. POLIC LANE SECUNDERABAD 500003 MUMBAI PAN - AACCK0438R APPLICANT RESPONDENT APPLICANT BY: NONE RESPONDENT BY: SHRI VIVEK A. PERAMPURNA DATE OF HEARING: 10.04. 2015 DATE OF PRONOUNCEMENT: 29 .0 5 .2015 O R D E R PER D. MANMOHAN, V.P. BY THIS APPLICATION ASSESSEE SEEKS RECALL OF THE ORDER DATED 1 ST DECEMBER, 2010 PASSED BY ITAT A BENCH, MUMBAI. 2. T HIS APPEAL HAS A CHEQUERED HISTORY . AGGRIEVED BY THE ORDER PASSED BY THE AO UNDER SECTION 144 OF THE ACT ( BEST JUDGEMENT ASSESSMENT). ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) CONTENDING, INTER ALIA, THAT IT WAS NOT A FIT CASE FOR MAKING BEST JUDGEMENT ASSESSMENT AND THE ASSESSEE COMPLIED WITH THE NOTICES OF HEARING GIVEN BY THE AO. THE LEARNED CIT(A) EXTRACTED THE ORDER SHEET NOTING MADE BY THE AO TO HIGHLIGHT THAT THOUGH THE ASSESSEE WAS CALLED UPON TO PRODUCE BOOKS OF ACCOUNT AND OTHER DETAI LS, NONE ATTENDED BEFORE THE AO AND DETAILS WERE NOT FURNISHED IN WHICH EVENT THE AO HAD NO OTHER ALTERNATIVE EXCEPT TO DISPOSE OF THE APPEAL TO THE BEST OF HIS JUDGEMENT. ASSESSEE SOUGHT TO FURNISH THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS AS ADDITIONAL EV IDENCE BEFORE THE CIT(A), WHICH WERE ALSO NOT ADMITTED ON THE GROUND THAT ASSESSEE HAD SUFFICIENT OPPORTUNITY TO PRODUCE MA NO. 336/MUM/2014 SWARNA JYOTHI AGROTECH & POWER LTD . 2 THE SAME BEFORE THE AO AND HENCE THERE WAS ABSENCE OF SUFFICIENT CAUSE FOR NON - PRODUCTION OF BOOKS/DOCUMENTS. THEREFORE IT IS NOT A FIT CASE FOR ADMISSION OF ADDITIONAL EVIDENCE. 3. A GGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL WHICH WAS DISPOSED OF ON 01.12.2010. ASSESSEE FILED A MISCELLANEOUS APPLICATION SEEKING RECALL OF THE ORDER DATED 01.12.2010 AND THE SAME WAS NUMBERED A S MA NO. 26/MUM/2013. THE BENCH CONSIDERED THE REASONS GIVEN IN THE MISCELLANEOUS APPLICATION AND FOUND THAT THERE WAS NO SUFFICIENT CAUSE FOR NON - APPEARANCE ON THE DATE FIXED FOR HEARING. THEREFORE THE BENCH REFUSED TO RECALL THE ORDER DATED 01.12.2010. A SSESSEE AGAIN FILED ANOTHER APPLICATION ON 10.07.2014, WHICH WAS NUMBERED AS MA NO. 336/MUM/2014 WHEREIN HE ADMITTED THAT THE NAME OF THE COMPANY IS CHANGED AND NOW KNOWN AS M/S. OCTANT INDUSTRIES LTD. IT WAS ALSO SUBMITTED THAT THE ASSESSEE F A ILED TO RECE IVE ANY NOTICE WITH REFERENCE TO THE MISCELLANEOUS APPLICATION FILED. HERE ALSO THE PRESENT ADDRESS OF THE ASSESSEE WAS NOT GIVEN. IN FACT THE APPEAL FILED BY THE ASSESSEE WAS DEFECTIVE SINCE THE CORRECT NAME OF THE COMPANY WAS NOT MENTIONED BY FILING REVI SED FORM 36 AND EVEN THE CHANGE OF ADDRESS WAS NOT MENTIONED. THE CASE WAS ADJOURNED FROM TIME TO TIME AND ON 17.10.2014 M/S. ANIL THAKRAR &CO., CHARTED ACCOUNTANTS , FILED A N APPLICATION SEEKING ADJOURNMENT ON THE GROUND THAT HE WOULD BE OUT OF TOWN ON THE DATE WHEN THE CASE WAS FIXED FOR HEARING. NO POWER OF ATTORNEY WAS FILED TILL DATE. IN FACT IT WAS A CASE WHERE THE ORIGINAL APPEAL WAS DISMISSED ON THE GROUND THAT NONE APPEARED ON BEHALF OF THE ASSESSEE AND THOUGH THE ASSESSEE FILED MISCELLANEOUS APPLIC ATION, WHICH WAS NUMBERED AS MA NO. 26/MUM/2013, EVEN AT THIS STAGE IT APPEARS THAT THE CORRECT ADDERS WAS NOT GIVEN BECAUSE THE REGISTRY ISSUED NOTICES BY RPAD TO THE NEW ADDRESS AS WELL TO THE OLD ADDRESS BUT BOTH WERE RETURNED UNSERVED. THEREFORE THE O RIGINAL ORDER COULD NOT BE RECALLED. 4. AFTER A LAPSE OF ALMOST FOUR YEARS, RECKONED FROM THE DATE OF ORIGINAL DISPOSAL OF THE APPEAL, ASSESSEE MOVED ANOTHER MISCELLANEOUS APPLICATION ON 15.07.2014 WHEREIN HE MENTIONED THE NAME OF THE COMPANY AS KUSHAL SOFTW ARE LTD. AND IT WAS STATED THAT DUE TO CHANGE OF ADDRESS THE ASSESSEE COULD NOT APPEAR BEFORE THE TRIBUNAL. EVEN IN THIS MISCELLANEOUS APPLICATION MA NO. 336/MUM/2014 SWARNA JYOTHI AGROTECH & POWER LTD . 3 ASSESSEE HAS NOT FURNISHED THE CORRECT ADDRESS AND THE APPLICATION WAS FILED IN THE NAME OF M/S. KUSHAL SOFT WARE LTD. BUT SINGED BY M/S. OCTANT INDUSTRIES LTD . , WHICH WAS THEN THE CORRECT NAME OF THE COMPANY. BUT AS COULD BE NOTICED FROM THE LETTER DATED 19.01.2015 , FURNISHED BY THE LEARNED D.R. , EVEN THE ABOVE MENTIONED COMPANY IS NO LONGER IN EXISTENCE AND IT WAS CHANGED TO M/S. SWARNA JYOTHI AGROTECH & POWER LTD. AND THE ADDRESS OF THE SAID COMPANY IS ORINDAM AIRLINES COLONY, OPP. POLICE LANE, SECUNDERABAD 500003. THOUGH NOTICE WAS SENT TO THE ASSESSEE THROUGH THE D.R. AT THE NEW ADDRESS, NONE APPEARED ON BEHA LF OF THE ASSESSEE ON 10.04.2015. THE MISCELLANEOUS APPLICATION WAS FILED IN THE NAME OF OCTANT INDUSTRIES LTD. WHEREAS THE PRESENT NAME OF THE COMPANY IS SWARNA JYOTHI AGROTECH & POWER LTD. THUS THE MISCELLANEOUS APPLICATION IS DEFECTIVE. 5. HAVING REGARD T O THE FACT THAT ASSESSEE HAD NOT FURNISHED FORM NO. 36 AND NEVER FURNISHED THE CORRECT NAME OF THE ASSESSEE - COMPANY, WE HAVE NO OTHER ALTERNATIVE EXCEPT TO HOLD THAT THE MISCELLANEOUS APPLICATION IS INVALID AND ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH MAY , 2015. SD/ - SD/ - ( SANJAY ARORA ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 29 TH MAY , 2015 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 8 , MUMBAI 4. THE CIT 4 , MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.