SANJAY B SHAH, V. DCIT RG 48,

MA 50/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0336 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: misc
• Appeal Filed On: 01-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Keywords: Opportunity of being heard; Assessment record; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BE NCH, MUMBAI , ! ! ! ! '! !, $ BEFORE SHRI SANJAY ARORA, A. M. AND SHRI VIJAY PAL RAO, J. M. '!'! !%/ M.A. NO.50/MUM/2012 (ARISING OUT OF IT(SS)A NO.14/MUM/1997) (BLOCK PERIOD: 1986-87 TO 1996 TO 97) SANJAY B. SHAH B/507, 5 TH FLOOR, ANAND NAGAR, TARDEO, MUMBAI-400 007 % % % % / VS. DY. COMMISSIONER OF INCOME TAX, RANGE 48, MUMBAI ' ./ ) ./ PAN/GIR NO. : ( '* / APPELLANT ) : ( +,'* / RESPONDENT ) '* - / APPELLANT BY : SHRI RAJEEV KUMAR +,'* . - / RESPONDENT BY : SHRI D. K. SINHA %! . /0 / // / DATE OF HEARING : 01.03.2013 12 . /0 / DATE OF PRONOUNCEMENT : 29.04.2013 3 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION (MP) BY THE ASSES SEE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN RESPECT OF THE ORDER BY THE TRIBUNAL DATED 06.10.2008 QUA ITS ASSESSMENT FOR THE BLOCK PERIOD 01.04.1985 TO 12.12.1995, I.E., THE DATE OF SEARCH. 2 MA NO.50/MUM/2010 (BLOCK PERIOD: 1986-87 TO 1996-97) SANJAY B. SHAH VS. DY. CIT 2.1 THE ASSESSEE VIDE ITS LETTER DATED 27.01.2012 ( FILED ON 01.02.2012) HAS PREFERRED THE INSTANT APPLICATION, MOVING THE TRIBUNAL IN ITS RECTIFICATION JURISDICTION, PRAYING FOR INITIATION OF CONTEMPT PROCEEDINGS AS WELL AS FOR I MPOSITION OF COST ON THE CONCERNED REVENUE AUTHORITIES. 2.2 A BRIEF ON THE BACKGROUND FACTS OF THE CASE WOU LD BE RELEVANT. PER THE IMPUGNED ORDER, THE TRIBUNAL SET ASIDE THE ASSESSMENT UNDER REFERENCE, RESTORING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER (A.O.) FOR FRESH ADJUDICATION; THE OPERATIVE PART OF ITS ORDER READING AS UNDER :- 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES & PERUSED THE RECORD. WE NOTICED THAT THE ASSESSEE HAS RAISED A L EGAL ISSUE THAT THE ASSESSING OFFICER HAS NOT ISSUED NOTICE U/S.143(2). SINCE LEG AL ISSUE GOES TO THE ROOT OF THE MATTER, THEREFORE, IN THE INTEREST OF JUSTICE THE L EGAL GROUND AS WELL AS OTHER ADDITIONAL GROUNDS OF APPEAL ARE ADMITTED. THE ASSE SSING OFFICER DID NOT GET OPPORTUNITY TO EXAMINE THE RECORD AS WELL AS THE AD DITIONAL GROUNDS AS THE ASSESSEE RAISED FIRST TIME BEFORE US. FURTHER, AS N OTED FROM ARS CONTENTIONS THAT CERTAIN DOCUMENTS FILED BY THE ASSESSEE IN THE FORM OF AFFIDAVITS, DETAILS OF JEWELLERY, & EXPLANATION WHICH HAVE NOT BEEN APPREC IATED. THE ASSESSING OFFICER HAS NOT GIVEN FINDING ON THOSE MATERIAL. THE ASSESS EE FILED A COPY OF WILL WHICH IS NOT IN ENGLISH AND TRANSLATION COPY IS NOT AVAILABL E ON RECORD. AFTER CONSIDERING TOTALITY OF THE FACTS WE FEEL THE MATTER REQUIRES F RESH ADJUDICATION BY THE ASSESSING OFFICER. IN THE LIGHT OF THE ABOVE DISCUSSION, WE T HINK IT PROPER TO SEND BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE ALL THE ISSUES AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS CONTENDED BY THE ASSESSEE PER ITS APPLICATIO N THAT NO FRESH ADJUDICATION, HOWEVER, WAS MADE BY THE A.O. PURSUANT TO THE SAID DIRECTION BY THE TRIBUNAL, THE TIME PERIOD FOR WHICH LAPSED ON 31.12.2009. CONSEQUENTLY , THE AMOUNT SEIZED AT THE TIME OF THE SEARCH, I.E., RS.2 LAKHS, AS ALSO THAT DEPOSITE D BY HIM FROM TIME TO TIME IN SATISFACTION OF THE DEMAND RAISED PER THE BLOCK ASSESSMENT ORDER (RS.13.64 LAKHS), BECAME REFUNDABLE TO THE ASSESSEE ALONG WITH INTEREST. THIRDLY, JEWEL LERY VALUING RS.2.64 LAKHS, WHICH WAS SEIZED DURING SEARCH, ALSO BECAME LIABLE TO BE RETU RNED TO THE ASSESSEE. HOWEVER, NO ACTION HAS BEEN TAKEN BY THE REVENUE DESPITE NUMERO US REMINDERS AND EVEN ONE 3 MA NO.50/MUM/2010 (BLOCK PERIOD: 1986-87 TO 1996-97) SANJAY B. SHAH VS. DY. CIT APPLICATION UNDER THE RIGHT TO INFORMATION ACT, 200 5, SO THAT THE MATTER REMAINS STATUS QUO . THE ONLY INFORMATION IT HAS BEEN ABLE TO ELICIT F ROM THE CONCERNED ASSESSING OFFICER (ASSTT. CIT, 16(2), MUMBAI), AND THAT TOO IN RESPONSE TO AN RTI APPLICATION DATED 15.04.2011, IS THAT THE JURISDICTION OVER HIS CASE IS NOT WITH HIM AND, FURTHER, THAT NO REFUND IS OUTSTANDING TO HIM EITHER ON HIS RECORDS OR WITH THE ITO-16(2)-4, MUMBAI. THE INSPECTION OF THE RECORD COULD NOT BE TAKEN AS THE ASSESSMENT RECORD IS NOT TRACEABLE, AND AS INFORMED TO HIM, IS BEING LOCATED BY THE DEPARTM ENT. EVEN THE HIGHER AUTHORITIES, BEING THE COMMISSIONER AND THE CHIEF COMMISSIONER O F INCOME TAX, HAVE NOT RESPONDED TO THE VARIOUS LETTERS WRITTEN BY THE ASSESSEE AND/ OR ITS REPRESENTATIVE. THIS HAS CAUSED DENIAL OF JUSTICE TO THE ASSESSEE. THE TRIBUNAL IS, THEREFORE, CALLED UPON TO ENFORCE ITS ORDER. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE LD. AR VEHEMENTLY ARGUING THE ASSESSEES CA SE, WOULD SUBMIT THAT IT WAS INCUMBENT ON THE TRIBUNAL AS THE APPELLANT AUTHORIT Y TO ENFORCE ITS ORDER, OR OTHERWISE THE ENTIRE LEGAL FRAMEWORK IS RENDERED AS OF NO CONSEQU ENCE. THE LD. DR CONCEDED TO BEING IGNORANT OF THE FACTS OF THE CASE, THOUGH WOULD STA TE THAT THE INSTANT APPLICATION IS MISCONCEIVED, BEING OUTSIDE THE SCOPE OF SECTION 25 4(2) OF THE ACT. NO INFIRMITY OR MISTAKE WHATSOEVER HAS BEEN POINTED OUT BY THE ASSE SSEE PER HIS INSTANT APPLICATION. 3.2 WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. MUCH AS WE MAY SYMPATHIZE WITH THE PREDICAMENT OF THE ASSESSEE, OR DEPLORE THE CONDUCT OF THE REVENUE, I.E., ASSUMING WHAT IS STATED BY THE ASSESSEE IN TH E MP TO BE TRUE (AND WHICH WE HAVE NO REASON TO BE DOUBT), OUR ACTION IN THE MATTER IS LI MITED AND CIRCUMSCRIBED BY LAW. WE ARE CONSCIOUS, WHEN WE SAY SO, OF THE INHERENT POWERS O F THE TRIBUNAL AS AN APPELLATE AUTHORITY, SO THAT THE SAME IS NOT CONFINED TO RECT IFICATION OF APPARENT MISTAKES IN ITS ORDERS, BUT TO ALL POWERS INCIDENTAL TO DECIDING AN APPEAL BEFORE IT, EXTENDING TO ITS FINAL DISPOSAL. IN THE INSTANT CASE, THE BLOCK ASSESSMENT STANDS SET ASIDE BY THE TRIBUNAL. THIS TAKES PLACE BY THE OPERATION OF THE DOCTRINE OF MER GER, SO THAT UNLESS STAYED OR REVERSED 4 MA NO.50/MUM/2010 (BLOCK PERIOD: 1986-87 TO 1996-97) SANJAY B. SHAH VS. DY. CIT BY A HIGHER APPELLATE FORUM, THE ASSESSMENT NO LONG ER OBTAINS ON THE COMING INTO EFFECT OF THE TRIBUNALS ORDER, I.E., ON ITS PRONOUNCEMENT ON 06.10.2008 . THERE IS NOTHING ON RECORD TO INDICATE OF ANY CHALLENGE TO THE TRIBUNAL S ORDER, SO THAT IT HAS ATTAINED FINALITY. WE ARE UNABLE TO SEE AS TO WHAT JURISDICTION OVER T HE ASSESSEES ASSESSMENT THE TRIBUNAL RETAINS THUS. IF THE REVENUE HAS NOT FRAMED THE ASS ESSMENT UP TO THE TIME LIMIT PROVIDED BY LAW, AS CLAIMED, THE CONSEQUENCES IN LAW WOULD F OLLOW, I.E., THE ASSESSEES BLOCK ASSESSMENT GETS FINALIZED AT THE RETURNED UNDISCLOS ED INCOME OF RS.20.52 LAKHS (REFER PARA 3 OF THE TRIBUNALS ORDER). IN FACT, EVEN IF THE T IME PERIOD STIPULATED FOR THE COMPLETION OF THE ASSESSMENT HAD NOT EXPIRED, WE DO NOT THINK THA T THE TRIBUNAL COULD ASSUME JURISDICTION OVER MATTERS COVERING THE ADMINISTRATI VE OF THE ACT. IT IS ONLY WHERE SPECIFIC DIRECTIONS, AS FOR THE COMPLETION OF THE ASSESSMENT IN A TIME BOUND MANNER; THE PRODUCTION OF ANY RECORD OR OF ANY OTHER MATERIAL/E VIDENCE GIVEN TO THE A.O. OR ANY OTHER REVENUE AUTHORITY; ATTENDANCE OF ANY PERSON OR REVE NUE AUTHORITY, ETC. HAVE BEEN ISSUED BY IT, THAT THE TRIBUNAL COULD EXERCISE THE POWERS OF A COURT OF LAW VESTED IN IT, HAVING SEIZEN OVER THE MATTER. AS OBSERVED EARLIER, THE TR IBUNAL HAS NO LOCUS STANDI IN THE MATTER, EITHER U/S. 254(2) OR QUA THE INHERENT POWERS VESTED IN IT AS AN APPELLATE A UTHORITY, SO THAT THE ASSESSEES APPLICATION IS MISCONCEIVED BOTH ON FACTS AND IN LAW. 3.3 WITH REGARD TO THE RECOURSE TO BE FOLLOWED BY T HE ASSESSEE, I.E., ASSUMING THE FACTS TO BE AS STATED, WE DO NOT CONSIDER IT TO BE APPROP RIATE TO VENTURE ANY SUGGESTION OR REMEDY IN THE MATTER IN OUR CAPACITY AS AN APPELLAT E AUTHORITY. THE MATTER, IT MAY BE CLARIFIED, IS PURELY ONE OF THE ADMINISTRATION OF T HE ACT, WHICH LIES WITH THE INCOME TAX DEPARTMENT, AND WHICH HAS ACCOUNTABILITY SYSTEMS IN PLACE. WHY THE ASSESSMENT WAS NOT FRAMED WITHIN THE TIME FRAME PROVIDED BY LAW; WHO I S RESPONSIBLE FOR THE SAME, AS ALSO FOR THE REFUND AS WELL AS SEIZED VALUABLES LIABLE T O BE RETURNED TO THE ASSESSEE, ETC., ARE ALL MATTERS WHICH LIE EXCLUSIVELY IN THE DOMAIN OF THE REVENUE. FROM THE LEGAL STAND POINT, ALL WE CAN SAY IS THAT ARTICLE 265 OF THE CONSTITUT ION OF INDIA CLEARLY PROVIDES THAT NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY THE AUTHORIT Y OF LAW. THE COURTS HAVE DISCOUNTENANCED SLACKNESS ON THE PART OF THE REVENU E TO ACT WITH ALACRITY AND DILIGENCE, 5 MA NO.50/MUM/2010 (BLOCK PERIOD: 1986-87 TO 1996-97) SANJAY B. SHAH VS. DY. CIT MUCH LESS FOR HARASSING THE ASSESSEE IN THE MATTERS OF REFUND AND THE LIKE, ALSO STIPULATING COMPENSATORY INTEREST. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS DISMISSED. 4 /5 % 64/ . '!'! !% 4 . / 78 ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2013 3 . 12 9%5 . : SD/- SD/- ( VIJAY PAL RAO ) ( SANJA Y ARORA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; 9% DATED : 29.04.2013 !.%../ ROSHANI , SR. PS 3 . +/' ;'2/ 3 . +/' ;'2/ 3 . +/' ;'2/ 3 . +/' ;'2// COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT . 3. < ( ) / THE CIT(A) 4. < / CIT - CONCERNED 5. '!?: +/% , , / DR, ITAT, MUMBAI 6. :@6 A / GUARD FILE. 3% 3% 3% 3% / BY ORDER, B BB B/ // /7 7 7 7 (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI