M/s Blue Daisy Realcon Pvt. ltd., Kolkata V. ITO, Cir. 23(1), Kolkata

MA 59/KOL/2022

AI Insights

The case involves Blue Daisy Realcon (P) Limited, which filed a Miscellaneous Application (M.A. No. 59/KOL/2022) against an earlier order of the Income Tax Appellate Tribunal dated 16th June 2022. The application was based on the grounds that the notice for the hearing was not communicated properly through their accountant. The Tribunal, however, noted the repeated non-appearance of the assessee in previous hearings and found that the assessee was not seriously prosecuting the litigation. The Tribunal dismissed the application, citing that the assessee was attempting to evade tax liabilities and manipulate legal proceedings.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129855 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-02-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 29-12-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 148; 254(2)

Judgement Text

M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President (KZ) & Dr. Manish Borad, Accountant Member M.A. No. 59/KOL/2022 (in I.T.A. No. 67/KOL/2022) Assessment Year: 2017-2018 Blue Daisy Realcon (P) Limited,................Applicant C/o. Shri N.K. Goyal, 16, N.S. Road, 2 nd Floor, Kolkata-700001 [PAN: AAFCB4741D] -Vs.- Income Tax Officer,...............................Respondent Circle-23(1), Kolkata, Roopma Mahal, Khadina More, Station Road, Chinsurah, Hooghly-712101 Appearances by: N o n e, appeared on behalf of the assessee Shri Vijay Kumar, Addl. CIT, appeared on behalf of the Revenue Date of concluding the hearing : February 10, 2023 Date of pronouncing the order: February 22, 2023 O R D E R Per Rajpal Yadav, Vice-President (KZ):- The present Miscellaneous Application is directed at the instance of assessee pointing out an apparent error in the order of the Tribunal dated 16 th June, 2022. The Miscellaneous Application reads as under:- M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 2 M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 3 2. In response to the notice of hearing, no one has come present on behalf of the assessee in support of the Miscellaneous Application. It is pertinent to note that the power of rectification under section 254(2) of the Income Tax Act can be exercised only M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 4 when the mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record, and not a mistake, which requires to be established by arguments and a long drawn process of reasoning on points on which there may considerably be two opinions. 3. With the assistance of ld. D.R., we have gone through the application. The appeal of the assessee was heard ex-parte because inspite of repeated opportunities, the assessee did not appear before the Tribunal. Efforts were made to apprise the assessee to inform on the telephone no. given in Form No. 36. Rule 24 of the Income Tax Appellate Tribunal Rules authorizes the Bench to decide an appeal ex-parte for the default of the appellant. It further authorizes the assessee to apprise the Tribunal about genuine cause for its non-appearance and if the Tribunal satisfy with the reasons given by the assessee, then re- call the ex-parte order and restore the appeal for fresh hearing. 4. We have taken note of this Rule along with section 254(2) of the Income Tax Act. We do not find any merit in this application of the assessee because the reason assigned by the assessee in paragraph no. 2 of the application is that address of the Accountant is being mentioned in Form 36 for communication of the date of hearing, etc. but the Accountant did not inform about the receipt of notice and the date of hearing to the assessee. It is M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 5 pertinent to note that appeal form i.e. Form No. 36 is to be verified similar to an affidavit by authorized person of the appellant company. The authorized person knowingly left the alleged lacuna of service of notice upon accountant. This assessee has been playing hide and seek. It did appear before the ld. Assessing Officer but not seriously submitted the details. Though assessment is being mentioned under section 143(3), but basically it is an assessment on account of non-compliance at the end of the assessee. It filed the appeal before the ld. CIT(Appeals). Again neither appeared nor submitted any details, but immediately filed appeal before the ITAT. Before ITAT on repeated notices, it did not appear. Even the person whose telephone number is being given in the Form 36 replied vaguely, but immediately filed the Miscellaneous Application. This shows that somebody knowingly taking care of formalities in prosecuting the litigation without seriously prosecuting it. On the strength of our experience in the Tribunal (22 years V.P.), we can firmly believe that such type of strategies are being taken up by the shell companies only for the reasons that if impugned orders are set aside, then tax demand will be wiped out and fresh hearing will take place. The second reason is that time to take action against bogus share applicants u/s 148 for issuing notice to reopen their assessment would expire. When this time limit of six years to take action against the alleged share applicants is expired, then the assessee can produce x, y, z representing as a Director of the share applicant Companies because even if it is found bogus, no action could be taken up being time-barred. All these M.A. No. 59/KOL/2022 (n ITA No. 67/KOL/2022) Assessment Year : 2017-2018 Blue Daisy Realcon (P) Limited 6 explanations are manipulated one without seriously defending the litigation or doing the business. Therefore, we do not find any error in the order of the Tribunal. This Miscellaneous Application is dismissed with cost quantified as Rs.50,000/-. 5. In the result, the Miscellaneous Application of the assessee is dismissed. Order pronounced in the open Court on February 22 nd , 2023. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President(KZ) Kolkata, the 22 nd day of February, 2023 Copies to : (1) Blue Daisy Realcon (P) Limited, C/o. Shri N.K. Goyal, 16, N.S. Road, 2 nd Floor, Kolkata-700001 (2) Income Tax Officer, Circle-23(1), Kolkata, Roopma Mahal, Khadina More, Station Road, Chinsurah, Hooghly-712101 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi (4) Commissioner of Income Tax- , (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.