DOLPHIN OFFSHORE ENTERPRISES (I) LTD, V. DCIT CEN CIR 40,

MA 352/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3084 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 18-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Principle of natural justice; Non passing of speaking order
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA, AM . / MA NO. 352/MUM/2014 (ARISING OUT OF IT(SS)A NO. 680/MUM/2003) ( / BLOCK PERIOD: 01.04.1990 TO 16.01.2001) DOLPHIN OFFSHORE ENTERPRISES (I) LTD. 1001, RAHEJA CENTRE, 214, NARIMAN POINT, MUMBAI - 400 021 / VS. DY. CIT, CENTRAL CIRCLE - 40, OLD CGO BUIL DING, ANNEXE, ROOM NO. 606, M. K. ROAD, MUMBAI 400 020 ./ ./ PAN/GIR NO. AAACD 0522 D ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI M. SUBRAMANIAN RESPONDENT BY : SHRI VIJAY KUMAR BORA / DATE OF HE ARING : 20.02.2015 / DATE OF PRONOUNCEMENT : 20 .04.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE, DIRECTED AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINA FTER) BY THE TRIBUNAL DATED 23.12.2011, DISPOSING , BY WAY OF ALLOWING , THE REVENUES APPEAL CONTESTING THE ORDER B Y THE FIRST APPELLATE AUTHORITY DISPOSING THE ASSESSEES APPEAL AGAINST I T S ASSESSMENT U/S.158BC R/W S. 143(3) OF THE ACT FOR THE B LOCK P ERIOD 01.04.1990 TO 16.01.2001 CONSEQUENT TO A SEARCH U/S.132 OF THE ACT ON THE ASSESSEE. 2. THE IMPUGNED ORDER IS AN EX - PARTE ORDER, I.E., QUA THE ASSESSEE. IN FACT , THE FIRST APPELLATE AUTHORITY HAVING PARTLY ALLOWED THE ASSESSEES APPEAL, BOTH THE ASSESSEE AND THE REVENUE WERE IN APPEAL BEFORE THE TRIBUNAL. THE ASSESSEES APPEAL, HOWEVER, AS PER THE CHRONOLOGY OF EVENTS LISTED BY THE ASSESSEE AT EXHIBIT - B TO THE INSTANT PETITION, CAME 2 TO BE DECIDED BY THE T RIBUNAL ON 15.03.2007, WHILE THE ASSESSEES APPEAL CAME TO BE HEARD ONLY SUBSEQUENTLY. THE ASSESSEE - RESPONDENT, HOWEVER, DID NOT ATTEND THE SAME DESPITE SERVICE OF NOTICES OF HEARING, NOR MOVED ANY ADJOURNMENT APPLICATION. THE T RIBUNAL, AFTER NOTING THE SUBMISSIONS BY THE L D. DEPARTMENTAL REPRESENTATIVE (D R), DECIDED THE MATTER THUS: 8. WE ARE IN AGREEMENT WITH THE AFORESAID SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE. IN THE ABSENCE OF ANY ARGUMENTS/ SUBMISSION ON BEHALF OF THE ASSESSEE, WE ALLOW THE GROUNDS RAISED BY THE REVENUE. THE SAME, IT IS CONTENDED BY THE ASSESSEE PER ITS INSTANT PETITION, DOES NOT MEET THE DETAILED REASONS AND FINDINGS ISSUED BY THE LD. CIT (A) IN ALLOWING THE ASSESSEES APPEAL ON EACH OF THE TWO GROUNDS RAISED IN APPEAL BY THE REVENUE, I.E., VIDE PARA 6.0 TO 6.20 (PAGE S 5 - 15) AND PARAS 9 TO 9.21 (PAGES 18 - 27) QUA THE FIRST AND SECOND GROUND RESPECTIVELY, ALSO RELYING ON THE FOLLOWING CASE LAW: (A) SHIVSAGAR VEG. RESTAURANT VS. ASST. CIT [ 2009 ] 317 ITR 433 (BOM); (B) RAFIQ AND ANOTHER VS. MUNSHILAL AND ANOTHER , REPORTED AT AIR 1981 SUPREME COURT 1400; AND (C) EXECUTORS OF THE ESTATE OF KESHAVDEV, R. GANERIWALA VS. INCOME TAX OFFICER , IN INCOME TAX APPEAL NO.1472 OF 2007 DATED 15.03.2008. 3 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. WE ARE UNABLE TO PERSUADE OURSELVES TO AGREE WITH THE LD. COUNSEL WITH REGARD TO THE APPLICATION OF THE DECISIONS IN THE CASES OF RAFIQ AND ANOTHER VS. MUNSHILAL AND A NOTHER (SUPRA) AND EXECUTORS OF THE ESTATE OF KESHAVDEV, R. GANERIWALA (SUPRA). THE REASON IS SIMPLE. THE ASSESSEE HAD BEEN AFFORDED AMPLE OPPORTUNITY TO PRESENT ITS CASE, AS NOTED BY THE T RIBUNAL VIDE PARAS 2 AND 3 OF ITS ORDER, WITH THE LAST THREE NOTICES OF HEARING HAVING BEEN IN FACT CAUSED TO BE SERVED ON IT THROUGH THE DEPARTMENT ITSELF , SPECIFYING THEIR DATES. H OWEVER, NONE PRESENTED NOR EVEN AN ADJOURNMENT MOTION MOVED BY OR ON BEHALF OF THE ASSESSEE . IT IS ONLY WHEN THE ASSESSEE AS A CLIENT PROPERLY BRIEFS HIS COUNSEL, PAYING HIM HIS FEES, AND GENERALLY DOES ALL HE COULD UNDER THE CIRCUMSTANCES THAT HE IS ENTI TLED TO BELIEVE THAT THE MATTER SHALL BE PURSUED BY HIS COUNSEL AND REST CONTEND IN THE 3 THOUGHT THAT THE MATTER SHALL BE DULY REPRESENTED BY THE LATTER . AS OBSERVED BY THE T RIBUNAL VIDE PARA 2 OF ITS ORDER, AND AS STATED EARLIER, EVEN AS MUCH AS THE VAKALA TNAMA WAS NOT BEEN FILED, WITH EACH OF THE SEVERAL NOTICES BEING SERVED ON THE ASSESSEE ITSELF, WHO THEREFORE WAS IN THE KNOW THAT THE MATTER IS NOT BEEN REPRESENTED BEFORE THE T RIBUNAL. THE DECISION IN THE CASE OF SHIVSAGAR VEG. RESTAURANT (SUPRA), HOWEV ER, WOULD APPLY IN THE FACTS OF THE CASE. THE T RIBUNAL DOES NOT, AS APPARENT FROM THE OPERATING PART OF THIS ORDER, REPRODUCED HEREINABOVE, STATE ITS REASONS IN ACCEPTING THE REVENUE STAND IN PREFERENCE TO THAT OF THE FIRST APPELLATE AUTHORITY, PARTICULARL Y CONSIDERING THE DETAILED FINDINGS AND REASONS ISSUED BY THE LATTER. THERE IS NO REFERENCE TO THE ORDER BY THE ASSESSING OFFICER AND/OR THE FIRST APPELLATE AUTHORITY . IT IS THEREFORE NOT EVEN CLEAR IF WHAT STANDS STATED IN THE SUBMISSIONS BY THE LD. DR, REPRODUCED BY THE T RIBUNAL AT PARA 7 OF ITS ORDER, I.E., PRIOR TO THE OPERATING PART OF ITS ORDER, IS A TRUE AND CORRECT REPRESENTATION OF THE RESPECTIVE CASES OF BOTH THE SIDES. IN THAT SENSE IT IS A NON SPEAKING ORDER. IN FACT, THE SUBMISSIONS MADE BY TH E LD. DR ALSO DO NOT FORM PART OF THE RECORD, AND WHICH IS INTRIGUING AND, IN THE VERY LEAST, NOT UNDERSTANDABLE. UNDER THE CIRCUMSTANCES, IN OUR VIEW, THE IMPUGNED ORDER IS INFLICTED WITH A MISTAKE APPARENT FRO M THE RECORD IN - AS - MUCH AS THE T RIBUNAL HAS FAILED TO DISCHARGE ITS DUTY IN DISPOSING THE MATTER JUDICIALLY BY NOT GIVING ITS REASONS, AS HELD MANDATORY BY THE HONBLE JURISDICTIONAL HIGH COURT IN SHIVSAGAR VEG. RESTAURANT (SUPRA). WE ARE CONSCIOUS THAT WE ARE IN RECTIFICATION PROCEEDING, THE SCOP E OF WHICH IS SEVERELY LIMITED, I.E., AS AGAINST APPELLATE OR REVIEW PROCEEDINGS. SO, HOWEVER, PERUSAL OF THE OPERATING PART OF THE IMPUGNED ORDER MAKES IT PATENTLY CLEAR THAT THE T RIBUNAL MERELY E NDORSED THE SUBMISSIONS OF THE LD. DR, WITHOUT STATING THE I R REASONS, SO THAT THERE HAS BEEN A VIOLATION OF A BASIC RULE OF NATURAL JUSTICE, AS EXPLAINED BY THE HONBLE HIGH COURT IN THE SAID CASE. WE ACCORDINGLY, ARE OF THE CONSIDERED VIEW THAT THE ASSESSEES PETITION MERITS ACCEPTANCE. WE MAY NOT, WE MAY ADD, B E CONSTRUED AS HAVING ISSUED ANY OBSERVATIONS QUA THE MERITS OF THE CASE, WHICH THE PARTIES SHALL ADDRESS AT THE TIME OF HEARING OF THE INSTANT APPEAL, WHICH IS THUS RECALLED FOR BEING ADJUDICATED AFRESH BY THE TRIBUNAL AFTER ALLOWING REASONABLE OPPORTUNIT Y OF THE PARTIES TO STATE THEIR CASE IN THE MATTER. WE DECIDE ACCORDINGLY. 4 4. IN THE RESULT THE ASSESSEES APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 20 , 201 5 SD/ - S D/ - ( I. P. BANSAL ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 20 .04.2015 / COPY OF TH E ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI