M/s Mukand Cold Storage, Yamunanagar V. ITO, Yamunanagar

MA 56/CHANDI/2010

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0218 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 06-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SINI
• Assessee Lawyers: RAJEEV SHARMA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER M.A. NOS.55 & 56 /CHD/2010 (IN ITA NOS.608 & 609/CHD/2009) (ASSESSMENT YEARS: 2003-04 & 2004-05) MUKAND COLD STORAGE, VS. THE INCOME TAX OFFICER, YAMUNA NAGAR. WARD-4, YAMUNA NAGAR. PAN: AABFM-9928Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJEEV SHARMA RESPONDENT BY : SHRI N.K.SINI, DR DATE OF HEARING : 15.03.2013 DATE OF PRONOUNCEMENT : 16.04.2013 O R D E R PER SUSHMA CHOWLA, JM: THE APPLICANT HAS FILED THESE TWO MISCELLANEOUS APP LICATIONS FOR RECALLING THE CONSOLIDATED ORDER DATED 1.6.2010 IN ITA NOS. 608 & 609/CHD/2009 RELATING TO THE ASSESSMENT YEARS 2003- 04 AND 2004-05. 2. THE MISCELLANEOUS APPLICATIONS MOVED BY THE APPL ICANT READ AS UNDER: 1. THAT THE APPLICANT FILED APPEALS AGAINST THE OR DER OF CIT (A) DATED 13.03.2009 PERTAINING TO AY 2003-04 AND 2004-05 INV OLVING COMMON ISSUES WHEREIN THE COUNSEL APPEARED BEFORE THIS HON'BLE BE NCH AND SUBMITTED PAPER BOOK TO EXPLAIN THE FACTS AND SUBMIT CLARIFIC ATIONS HOWEVER, THE MATTER WAS NOT HEARD AT LENGTH SINCE IT WAS OBSERVE D BY THE HON'BLE BENCH THAT FROM THE FACTS IT IS APPARENT THAT THE MATTER HAS BEEN WRONGLY DECIDED AGAINST THE ASSESSEE FIRM AND IN VIEW OF JUDGMENT O F THE JURISDICTIONAL HIGH COURT AND THAT OF HON'BLE M.P. HIGH COURT THE CAPIT AL INTRODUCED BY THE PARTNERS IN THE FIRM HAS TO BE ADDED IN THE HANDS O F THE PARTNERS AND NOT TO THAT OF THE FIRM. THEREFORE NO FURTHER SUBMISSIONS WERE MADE BY THE COUNSEL OF THE APPLICANT/ASSESSEE ON MERITS TO REBU T THE FINDINGS OF THE AUTHORITIES BELOW, NOR ANY REBUTTAL WAS REQUIRED FR OM THE REVENUE SIDE. 2 2. THAT NOW ON RECEIPT OF THE ORDER OF THE HON'BLE TRIBUNAL DATED 01.06.2010 ON 28.07.2010 BY REGISTERED AD, IT IS OB SERVED THAT THE MATTER HAS BEEN DECIDED EVEN ON MERITS WITHOUT ALLOWING THE COUNSEL FOR THE APPLICANT TO ADDRESS THE HON'BLE BENCH ON MERITS WH EREIN A HEFTY PAPER BOOK HAS BEEN FILED ALONG WITH WRITTEN SUBMISSIONS BEFORE THE AUTHORITIES BELOW AND EVIDENCES TO THE EFFECT THAT THE PARTNERS HAVE INTRODUCED THE IMPUGNED AMOUNTS IN THEIR CAPITAL ACCOUNT ON WITHDR AWAL FROM VARIOUS FIRMS/DECLARED SOURCES. 3. THAT THE HON'BLE TRIBUNAL IS THE LAST FACT FINDI NG AUTHORITY TO CONSIDER THE ISSUE ON FACTS/MERITS AND THE SAME HAVE NOT BEE N APPRECIATED PROPERLY SINCE IT WAS OBSERVED IN THE COURT THAT THE MATTER IS COVERED BY VARIOUS JUDGMENTS (SUPRA) AND THE COUNSEL FOR THE APPLICANT ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO DISCUSS THE ISSUES IN DISPUTE ON MERITS, HENCE THE MISTAKE HAS OCCURRED WHICH NEEDS TO BE RECTIFIED BY RECALLI NG THE MATTER AND ALLOWING DUE OPPORTUNITY TO THE APPLICANT/ASSESSEE TO REPRESENT ITS CASE ON MERITS. 4. THAT IN CASE OPPORTUNITY OF HEARING IS NOT PROVI DED THE APPLICANT SHALL SUFFER IRREPARABLE LOSS AND ALSO IT WILL BE AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. THE GRIEVANCE OF THE APPLICANT IS THAT SUFFICIEN T OPPORTUNITY OF HEARING WAS NOT PROVIDED AND THE ISSUE HAS BEEN DEC IDED AGAINST THE ASSESSEE. HOWEVER, THE LEARNED A.R. FOR THE APPLIC ANT FAILED TO POINT OUT ANY DEFECT IN THE ORDER OF THE TRIBUNAL. 4. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T THE ISSUE HAS BEEN DECIDED AFTER HEARING THE LEARNED A.R. FOR THE APPLICANT AND THE RELEVANT DECISIONS HAVE BEEN REFERRED TO. 5. ON THE PERUSAL OF THE RECORD AND THE ORDER PASSE D BY THE TRIBUNAL DATED 1.6.2010 IT TRANSPIRES THAT THE CONTENTION OF THE APPLICANT THAT THE AMOUNT INTRODUCED BY THE PARTNERS AS CAPITAL COULD NOT BE ASSESSED IN THE HANDS OF THE APPLICANT FIRM IN VIEW OF THE JUDGMENT OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ME TACHEM INDUSTRIES [245 ITR 160 (MP)] AND OTHER JUDGMENTS WERE REFERRE D TO BY THE TRIBUNAL UNDER PARA 3 AT THE BOTTOM OF PAGE 4 AND P AGE 5 OF THE ORDER OF THE TRIBUNAL. THE ISSUE HAS BEEN ADJUDICATED UP ON BY NOTING THE FACT 3 THAT WHERE A PARTNER ADMITS TO HAVE MADE DEPOSITS WITH T HE FIRM, THEN AS FAR AS THE FIRM IS CONCERNED, EVEN IF THE SOURCE OF THE PARTNER IS HELD TO BE UNEXPLAINED, SUCH AMOUNT CANNOT BE SUBJECTED TO TAX IN THE HANDS OF THE ASSESSEE FIRM . THE TRIBUNAL FURTHER NOTED THAT THE FACTS OF THE CASE STOOD ON DIFFERENT FOOTINGS AND THE ISSUE WAS THERE AFTER DELIBERATED UPON VIDE PARAS 4 TO 6 WHEREIN THE EXPLANATION OF THE AP PLICANT VIS--VIS THE SOURCE OF INTRODUCTION OF CASH IN THE CAPITAL ACCOU NTS OF THE PARTNERS WAS REJECTED AS THE ASSESSEE HAD FAILED TO PRODUCE THE BOOKS OF ACCOUNT OR EVEN THE CONCERNED PARTNERS WERE NOT PRODUCED DESPI TE OPPORTUNITIES BEING ALLOWED BY THE CIT (APPEALS). NO FURTHER EVI DENCE WAS FURNISHED BEFORE THE TRIBUNAL AND THE SAME HAS BEEN NOTED AND AN ADDITION OF RS.11 LACS HAS BEEN UPHELD BY THE TRIBUNAL. IN VIE W OF THE ABOVE SAID FACTS WE FIND NO MERIT IN THE ALLEGATION MADE VIDE PARA 1, WHEREIN IT HAS BEEN ALLEGED THAT THE MATTER HAS BEEN WRONGLY DECID ED AGAINST THE APPLICANT FIRM AND RELIANCE FOR THAT HAS BEEN MADE ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT AND THE HON'BLE M ADHYA PRADESH HIGH COURT. BOTH THE DECISIONS HAVE BEEN CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING THE ISSUE IN HAND AND THE RECOURSE MAD E BY THE APPLICANT VIDE PRESENT MISCELLANEOUS APPLICATION IS NOT SUSTA INABLE IN VIEW OF THE LIMITED MANDATE OF SECTION 254(2) OF THE ACT. THE TRIBUNAL HAS LIMITED POWER OF CORRECTING ANY APPARENT MISTAKE OF RECORD WHILE DECIDING THE MISCELLANEOUS APPLICATION FILED UNDER SECTION 254(2 ) OF THE ACT. FURTHER THE SECOND PLEA OF THE APPLICANT THAT IT HA S NOT PROVIDED SUFFICIENT OPPORTUNITY OF HEARING IS NOT CORRECT AS IS APPARENT FROM THE OBSERVATIONS OF THE TRIBUNAL VIDE LATER PART OF PAR A 3 WHEREIN SUBMISSIONS OF THE APPLICANT HAVE BEEN NOTED AND EV EN RELIANCE PLACED UPON BY THE LEARNED A.R. FOR THE APPLICANT HAD BEEN COMMENTED UPON. IN 4 THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DISMISS THE PRESENT MISCELLANEOUS APPLICATIONS FILED BY THE APP LICANT. 6. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE APPLICANT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF APRIL, 2013. SD/- S D/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 16 TH APRIL, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH