M/s Mavany Brothers, Panaji V. Deputy Commissioner of Income Tax Circle-1, Panaji., Panaji

MA 38/PAN/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3700 (ITAT-PANAJI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-11-2015
• Assessment Year: 1996-1997
• Appeal Filed On: 06-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D E ROBINSON
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER M.A.NO . 38/PNJ/2015 ( ITA NO. 24 /PNJ/2005 ) (ASST. YEAR : 1996 - 97 ) M/S. MAVANY BROTHERS, SHIV TOWERS, PATTO PLAZA, PANJIM GOA. VS. D CIT, CIRCLE - 1, PANJIM GOA. PAN NO. AAJFM 7971 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.E. ROBINSON ADV. DEPARTMENT BY : SHRI PRASHANT GADEKAR - D R DATE OF HEARING : 1 9 / 1 1 /2015 . DATE OF PRONOUNCEMENT : 1 9 / 1 1 /201 5 . O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER THIS MISC. APPLICATION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN I.T.A.NO. 24/PNJ/2005 , DATED 18 /0 6 /201 5 . 2. SHRI D.E. ROBINSON, ADV OCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI PRASHANT GADEKAR , LEARNED D R REPRESENTED ON BEHALF OF THE REVENUE. 3 . IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE HONBLE HIGH COURT OF BOMBAY AT GOA HAD SET ASIDE THE ORIGINAL ORDER PASSED BY THE T R IBUNAL AND RES TORED THE ISSUE BACK TO THE FILE OF THE TRIBUNAL TO ADJUDICATE ON ALL ISSUES AFRESH. IT WAS THE SUBMISSION THAT THE HONBLE HIGH COURT HAD , IN PAGE 15 OF ITS ORDER AT 5 TH LINE FROM THE TOP , CATEGORICALLY HELD THAT THE ABSENCE OF THE RECORD IS PRIMA - FACIE EVIDENT FROM THE LETTER DATED 20/11/200 ADDRESSED BY THE ASSESSING 2 MA NO. 38 /PNJ/201 5 OFFICER TO THE APPELLANT MERELY 7 DAYS AFTER THE ISSUING OF THE IMPUGNED NOTICE . IT WAS THE SUBMISSION THAT THE RECORDS NOT BEING AVAILABLE WITH THE ASSESSING OFFICER , SETTING ASIDE THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICAT I O N IN LINE WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD . REPORTED IN 259 ITR 19 , WAS NOT PERMISSIBLE. IT WAS THE SUBMISSION THAT THE TRIBUNAL BY SETTING ASIDE THE ISSUE TO THE ASSESSING OFFICER HAS RAISED NEW ISSUES WHICH IS NOT PERMISSIBLE. HE PLACED RELIANCE ON THE DECISION S OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KANSAI NEROLAC PAINTS LTD. REPORTED IN 364 ITR 632 ; POKHRAJ HIRACHAND REPORTED IN 49 ITR 293 AND LAJWANTI SIAL REPORTED IN 32 ITR 526 . IT WAS THE SUBMISSION THAT SETTING ASIDE OF THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WAS NOT PERMISSIBLE AND THE APPEAL OF THE ASSESSEE WAS LIABLE TO BE ALLOWED. 4 . IN REPLY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL WHICH CALL S FOR ANY RECTIFICATION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. 6 . A PERUSAL OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KANSAI NEROLAC PAINTS LTD. (SUPRA) SHOWS THAT THE HONBLE HIGH COURT HAS CATEGORICALLY HELD THAT THE TRIBUNAL OUGHT NOT TO HAVE REMANDED THE LEGAL ISSUE TO THE ASSESSING OFFICER. THE DECISION IN THE CASE OF POKHRAJ HIRACHAND (SUPRA) THE HONBLE HIGH COURT HELD THAT THE TRIBUNAL CANNOT CONS IDER THE QUESTION S NOT RAISED BEFORE IT. IN THE DECISION IN LAJWANTI SIAL (SUPRA) , THE HONBLE HIGH COURT HAS HELD THAT THE TRIBUNAL IS NOT A COMPETENT TO DECIDE THE APPEAL ON THE BASIS OF ISSUES NOT ARIS ING OUT OF THE GROUNDS OF APPEAL. HOWEVER , A PERUSAL OF THE ORDER OF THE TRIBUNAL, WHICH IS SUBJECT MATTER OF MISC. APPLICATION SHOWS THAT IT IS BECAUSE THE FACTS ARE NOT PRODUCED BEFORE THE TRIBUNAL WHICH IS THE HIGHEST FACT FINDING BODY THAT THE ISSUE HAS BEEN SENT TO THE ASSESSING OFFICER FOR RE - ADJUDICATION. THERE IS NO LEGAL ISSUE WHICH HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER . C LEARLY , WHETHER THE RECORDS WERE AVAILABLE OR NOT , IS FOR THE ASSESSING OFFICER TO CONFIRM AND THIS 3 MA NO. 38 /PNJ/201 5 CONFIRMATION HAS TO BE SPECIFIC AS TO WHEN SUCH RECORDS WENT MISSING WHETHER BEFORE THE ISSUANCE OF NOTICE OR AFTER THE ISSUANCE OF NOTICE UNDER SEC. 148 OF THE ACT. THESE ARE ALSO TO BE ANSWERED. THESE ARE CLEARLY THE FACTS WHICH REQUIRE ADJUDICATION. FURTHER, A PERUSAL OF THE ASSESSMENT O RDER ALSO SHOWS THAT THIS ISSUE HAS NOT BEEN RAISED BEFORE THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT . THUS, IN FACT , THE ASSESSEE IS ATTEMPTING TO RAISE THE ISSUES WHICH WERE NEVER RAISED IN THE COURSE OF ASSESSMENT AND THEREBY, HAS ATTEMPTED TO T IME BAR THE PROCEEDINGS AND THEN RAISED JURISDICTIONAL ISSUES WHICH ARE NOT SUPPORTED BY ANY EVIDENCE NOR ANY AFFIDAVIT. CLEARLY, RULE 10 OF THE ITAT RULES REQUIRE THAT SUCH AVERMENTS MUST BE SUPPORTED BY AFFIDAVIT. THIS HAS ALSO NOT BEEN DONE. IN ANY C ASE, THESE ARE NOT ISSUES THAT CAN BE ADJUDICATE D IN A MISC. APPLICATION. FURTHER, LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE TRIBUNAL DATED 18/06/2015 . ALL THAT THE ARGUMENTS OF THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE IS THAT THE TRIBUNAL OUGHT NOT TO HAVE RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATING THE ISSUE IN LINE WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GKN DR IVESHAFTS (INDIA) LTD. (SUPRA) . IN ABSENCE OF FACTS, DECISION CANNOT BE MADE IN VACUUM. NO NEW ISSUES HAS ALSO BEEN RAISED OR CONSIDERED BY THE TRIBUNAL. IT IS ONLY IN THESE CIRCUMSTANCES, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR ASCERTAINING THE CORRECT FACTS. THIS CANNOT BE SAID TO BE AN ERROR WHICH CALLS FOR ANY RECTIFICATION. 7 . CONSEQUENTLY, THE MISC. APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON THURSDAY , THE 1 9 TH DAY OF NOVEMBER , 201 5 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 1 9 TH NOVEMBER , 201 5 . 4 MA NO. 38 /PNJ/201 5 VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 5 MA NO. 38 /PNJ/201 5 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 1 9 . 1 1 .2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 20 . 1 1 .2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 20 / 1 1 /2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 20 / 1 1 /2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 20 / 1 1 /2015 SR.PS 6. DATE OF PRONOUNCEMENT 19 / 1 1 /2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 20 / 1 1 /2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER