ANUBHAV SINHA PRODUCTION PVT. LTD., MUMBAI V. ITO (TDS) - 1(2), MUMBAI

MA 79/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3442 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISING OUT OF IN ITA NO S
• Keywords: Charitable institution; Principle of natural justice; TDS
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O S . 79 TO 82 / M/201 9 (ARISING OUT OF ITA NO S . 2856 , 2858, 2859 & 2860 /MUM/201 7 ) ( / ASSESSMENT YEAR S: 2003 - 04 TO 2006 - 07 ) ANUB HAV SINHA PRODUCTION PVT. LTD. 714, THE SUMMIT BUSINESS BAY, LEVEL - 7, OPP, CINEMAX, OFF ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400093 . / VS. ITO (TDS) - 1(2) MUMBAI / . / . PAN/GIR NO. : AABCA8998H ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 26 .0 4 .201 9 /DATE OF PRONOUNCEMENT: 03/ 05/ 2019 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO S . 79 TO 82/M/2019 MOVED BY APPELLANT ARISING OUT OF IN ITA. NO S . 2856 , 2858, 2859 & 2860 /MUM/201 7 RESPECTIVELY RELEVANT TO THE A .Y S . 2003 - 04 TO 2006 - 07 DATED 30 . 08 .201 8 . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ABOVE MENTIONED APPEALS HAVE BEEN DECIDED BY HONBLE ITAT BY VIRTUE OF ORDER DATED 30.08.2018. THE APPEALS WERE FILED 1018 DAYS DELAY AND THE DELAY WAS EFFECTED ON ACCOUNT OF MIXING THE PAPER WITH THE PAPER OF CINEMA FILM GULAB GANG BY THE ACCOUNTANT, SHRI MOHAN DODDAL WHO HAD FILED A SEPARATE AFFIDAVIT IN THIS REGARD BUT THE SUFFICIENT CAUSE EXPLAINED BY THE ASSESSEE /APPELLANT WAS NOT PROPERLY REVENUE BY: SHRI CHAUDHARY ARUN KUMAR SINGH (DR) ASSESSEE BY: SHRI N. M. PARWAL (AR) M.A. N OS . 79 TO 82/ M/201 9 CONSIDERED . SHRI MOHAN DODDAL HAS ALSO FILED THE AFFIDAVIT IN THIS REGARD . T HE HONBLE ITAT HAS ALSO FAILED TO CONSIDER THE DECISION IN THE CASE OF Y.P. TRIVEDI VS. THE JTD. CIT - RG - 11(3), MUMBAI G BENCH ITA. NO.5944/M/2010 280 ITR 0357 AND ALSO FAILED TO COMPLY THE DECISION OF THE MADRAS HIGH COURT IN THE CASE OF SHRI SREE NIVAS CHARITABLE TRUST VS. DY. CIT (280 ITR 357) . THE APPLICANT ALSO RELIED UPON THE DECISION SUCH AS N. BALAKRISHNAN VS. M KRISHNAMURT HY 1998 (7) SSC 123, COLLECTOR, LAND ACQUISITION VS. MST. KATIJ & ORS. (1987) 62 CTR (SC) 23: (1987) 167 ITR 471 (SC) & AREVA T & D INDIA LTD. VS. JCIT - 287 ITR 0555 AND OTHERS. THE APPLICANT REQUESTED TO CONSIDER THE SUFFICIENT CAUSE IN ACCORDANCE WITH LAW AND TO RECALL THE ORDER IN THE INTEREST OF JUSTICE. 3 . NOTICE GIVEN. 4 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. BEFORE GOING FU RTHER, WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE HONBLE ITAT IN THE ABOVE MENTIONED APPEALS ON REC ORD.: - 2. ALL THESE APPEALS ARE DELAYED BY 1018 DAYS. WITH REGARD TO THE MERIT, ASSESSEE IS AGGRIEVED FOR HOLDING THE ASSESSEE IN DEFAULT U/S. 201(1) & 201(1A) IN RESPECT OF DEDUCTION OF TAX AT SOURCE. ASSESSEE HAS ALSO FILED REASONS FOR DELAY IN FILING THE APPEAL. WE HAD CAREFULLY GONE THROUGH THE REASONS SO GIVEN, BUT DO NOT FIND ANY MERIT IN THE SAME, IN SO FAR AS ASSESSEE HAS NOT EXPLAINED AS TO WH Y THERE WAS ABNORMAL DELAY IN FILING THE APPEAL. MOREOVER, FROM THE RECORD WE ALSO FOUND THAT ASSESSEE WAS VERY CASUAL EVEN BEFORE THE CIT(A) AND AO. INSPITE OF GIVING SO MANY OPPORTUNITIES, NOBODY APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A). THE CIT(A) PRECISELY OBSERVED AS UNDER: - IN THIS CASE, THE APPELLANT DID NOT CHOSE TO AVAIL OF OPPORTUNITIES IN THE APPELLATE PROCEEDINGS, WHICH ENTAILS A CONCLUSION THAT THE APPELLANT HAD NO EVIDENCE OR SAY OR EXPLANATION AGAINST THE ORDER OF THE AO. IN CASE OF TAX EVASION, SOMETIMES COMPLIANCE IS MORE DETRIMENTAL THAN NON - COMPLIANCE BECAUSE COMPLIANCE CAN LEAD TO MORE INVESTIGATION OR MORE POINTS TO BE EXPLAINED WHEREAS NON - COMPLIANCE LEAD TO MERE PENALTY U/S.271(L)(B) AND EX - PARTE DECISION O N THE BASIS OF AVAILABLE MATERIAL ONLY. IT ALSO BRIGHTENS CHANCES AGAINST LEVY OF PENALTY, IF ANY. EX - PARTE ASSESSMENT OR OTHER ORDER HAS ITS OWN INHERENT LIMITATIONS AS TO ITS SCOPE AND EXTENT. HENCE, THE M.A. N OS . 79 TO 82/ M/201 9 APPELLANT SHOULD NOT BE ALLOWED TO BE ENRICHED OR BENEFITED UNJUSTLY FOR ACT OF OWN WRONGS I.E. NON - COMPLIANCE. THE HON'BLE DELHI HIGH COURT DELIVERED A DECISION ON 02.09.2011 IN ITA NO.798/2009 IN THE CASE OF CXT VS. &OLD LEAF CAPITAL CORPORATION LTD THAT A NEGLIGENT ASSESSEE SHOULD NOT BE GIVEN MANY OPP ORTUNITIES JUST BECAUSE THAT QUANTUM OF AMOUNT INVOLVED IS HIGH. NECESSARY COURSE OF ACTION IS TO DRAW AN ADVERSE INFERENCE, OTHERWISE IT WOULD AMOUNT TO GIVE PREMIUM TO THE ASSESSEE FOR HIS NEGLIGENCE. WHEN THE ASSESSEE IS NON - COOPERATIVE, IT CAN NATURALL Y BE SAFELY CONCLUDED THAT THE ASSESSEE DID NOT WANT TO ADDUCE EVIDENCE AS IT WOULD EXPOSE FALSITY AND NON - GENUINENESS (REFERENCE : WWW.TAXGURU.IN). IN THIS REGARD, DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF M/S.CHCMIPOL VS. UNION OF INDIA (V IDE ORDER DATED 12.12.2009) CLEARLY STATES THAT EVERY COURT OR JUDICIAL BODY OR AUTHORITY, WHICH HAS A DUTY TO DECIDE A US BETWEEN TWO PARTIES, INHERENTLY POSSESSES THE POWER TO DISMISS THE CASE IN DEFAULT. FOR EASE OF REFERENCE, THE; RELEVANT EXTRACT OF T HE JUDICIAL PRONOUNCEMENT RENDERED BY THE HON'BLE BOMBAY HIGH COURT IN THE SAID CASE IS REPRODUCED BELOW : - (I).. (II) WHILE NOT INCLINED TO DEPART FROM THE VIEW TAKEN BY THE TWO HIGH COURTS, REFERENCE MUST BE MADE TO SUNDERLAL VS. NANDRAMDAS AIR 1958 MP 260 WHERE IT WAS OBSERVED THAT THOUGH THE ACT DOES NOT GIVE ANY ITA NO.2856/MUM/2017 AND OTHER APPEALS M/S. ANUBHAV SINHA PRODUCTION PVT. LTD., 3 POWER OF DISMISSAL, IT IS AXIOMATIC THAT NO COURT OR TRIBUNAL IS SUPPOSED TO CONTINUE A PROCEEDING BEFORE IT W HEN THE PARTY WHO HAS MOVED IT HAS NOT APPEARED NOR CARED TO REMAIN PRESENT. THE DISMISSAL, THEREFORE, IS AN INHERENT POWER WHICH EVERY TRIBUNAL POSSESSES. THIS WAS APPROVED IN DR.P.NALIA THAMPY VS. SHANKOR 1984 (5UPP) SCC 631. IN NEW INDIA ASSURANCE VS. S RINIVASAN (2000) 3 SCC 242, IT WAS HELD THAT EVERY COURT OR JUDICIAL BODY OR AUTHORITY, WHICH HAS A DUTY TO DECIDE A US BETWEEN TWO PARTIES, INHERENTLY POSSESSES THE POWER TO DISMISS A CASE IN DEFAULT. WHERE A CASE IS CALLED UP FOR HEARING AND THE PARTY IS NOT PRESENT, THE COURT OR THE JUDICIAL OR QUASI JUDICIAL BODY IS UNDER NO OBLIGATION TO KEEP THE MATTER PENDING BEFORE IT OR TO PURSUE THE MATTER ON BEHALF OF THE COMPLAINANT WHO HAD INSTITUTED THE PROCEEDINGS. THAT IS NOT THE FUNCTION OF THE COURT OR, FO R THAT MATTER OF A JUDICIAL OR QUASI JUDICIAL BODY. IN THE ABSENCE OF THE COMPLAINANT, THEREFORE, THE COURT WILL BE WILL WITHIN THE JURISDICTION TO DISMISS THE COMPLAINT FOR NON PROSECUTION. (III) ACCORDINGLY, THOUGH THE RULE CONFERRING POWER ON THE TRIBUN AL HAS BEEN STRUCK DOWN, ONE CANNOT ALTOGETHER LOSE SIGHT OF THE RULE THAT EVERY COURT OR TRIBUNAL HAS AN INHERENT POWER TO DISMISS A PROCEEDING FOR NON PROSECUTION WHEN THE PETITION/APPELLANT BEFORE IT DOES NOT WISH TO PROSECUTE THE PROCEEDING. IN SUCH A SITUATION, UNLESS THE STATUTE CLEARLY REQUIRES THE COURT OR TRIBUNAL TO HEAR THE APPEAL / PROCEEDING AND DECIDE IT ON MERITS IT CAN DISMISS THE APPEAL / PROCEEDING FOR NONPROSECUTION. THE POWT MUST BE EXERCISED JUDICIOUSLY AND TAKING INTO CONSIDERATION ALL THE FACTS AND CIRCUMSTANCES OF THE CASE. ' M.A. N OS . 79 TO 82/ M/201 9 2.1 THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 HELD THAT '// THE PARTY, AT WHOSE INSTANCE, THE REFERENCE IS MADE AT, FAILS - TO APPEAR AT HEARING... THE COURT IS N OT BOUND TO ANSWER THE REFERENCE. ''SIMILARLY, THEIR LORDSHIPS IN THE CASE OF CTT VS. B.N.BHATTACHRYA 118 ITR 461 RELEVANT PAGES 477 & 478) HAD HELD THAT 'APPEAL DOES NOT MEAN MERELY FILING OF APPEAL BUT EFFECTIVELY PURSUING IT'. RECENTLY, THE HON'BLE ITAT , DELHI [VIDE ORDER DATED 19.12.2011 IN ITA NO.2006/DEL/2011] IN THE CASE OF WHIRLPOOL INDIA LTD VS. DOT HAD DISMISSED THE APPEAL FOR NOT ATTENDING THE HEARING, INFERRING THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING OF APPEAL. THEREAFTER, IN ANOTHER DECI SION IN THE CASE OF CHADHA FINLEASE LTD VS. ACIT [VIDE ORDER DATED 20.12.11 IN ITA NO.3013/DEL/2011]F THE HON'BLE ITAT DISMISSED THE APPEAL FOR NON - ATTENDING THE HEARING, INFERRING THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. 3. IN LIGHT OF THE ABOVE FACTS AND JUDICIAL PRONOUNCEMENTS DISCUSSED HEREINABOVE, THE APPEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED. ON PERUSAL OF THE ORDER OF THE A.O., IT IS EVIDENT THAT EVEN DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT WAS GIVEN ADEQUATE OPP ORTUNITIES OF BEING HEARD BUT THE APPELLANT COULD NOT ESTABLISH CASE. FOR EASE OF REFERENCE, PARA 2 OF THE IMPUGNED ORDER IS REPRODUCED HEREUNDER FOR APPRECIATION OF FACTS; '2. IN CONNECTION WITH THE ABOVE PROCEEDINGS, VARIOUS CORRESPONDENCES WERE MADE WI TH THE ASSESSEE. FINALLY, SHOW ' CAUSE - CUM - LETTERS DATED 27.12.2010, 11.01.2011, 30.1.2011, 11.2.2011 25.2.2011, 4.3.2011 WERE SENT BY SPEED POST WHICH WERE ACKNOWLEDGED BY THE ASSESSEE. HOWEVER, NOBDDY' - X ATTENDED NOR ANY DETAILS / EXPLANATION WAS FURNISH ED BY THE ASSESSEE. THEREFORE, IN THE INTEREST OF NATURAL JUSTICE, ONE. A LAST OPPORTUNITY WAS GIVEN TO THE ASSESSEE VIDE.., LETTER 17.3.2011 WHICH WAS DULY SERVED ON THE ASSESSEE. IN RESPONSE TO THIS LETTER, ASSESSEE'S REPRESENTATIVE M/S.I.R.SHETTY & CO., VIDE ITS LETTER DT. 18.3.2011 HAS REQUESTED FOR ADJOURNMENT OF THE CASE TILL FIRST WEEK OF APRIL 2011. IN THE COPY OF THE AR'S LETTER ITSELF, AN ADJOURNMENT OF HEARING TO 21.3.2011 WAS GIVEN AND ALSO INFORMED THE FACT THAT THE MATTER IS GETTING BARRED BY LIMITATION AS ON 31.3.2011. HOWEVER, TO THIS ADJOURNMENT ALSO, NOBODY ATTENDED NOR FURNISHED ANY DETAILS. SINCE THE MATTER IS GETTING BARRED BY LIMITATION, I HAVE NO OPTION BUT TO COMPLETE THE PROCEEDINGS ON THE BASIS OF DETAILS AVAILABLE ON RECORD.' [EMPH ASIS SUPPLIED] THUS, BEFORE THE A.O., THE APPELLANT COULD NOT FURNISH NECESSARY DETAILS / EVIDENCES AND THE A.O. WAS COMPELLED TO PASS THE IMPUGNED ORDER. THIS FACT ALSO ESTABLISHES THAT THE APPEAL FILED BY THE APPELLANT LACKS MERIT. HAVING REGARD TO ALL T HESE FACTS AS A WHOLE, THE APPEAL FILED BY THE APPELLANT DESERVES TO BE DISMISSED AND IS DONE SO. 3. FROM THE RECORD WE ALSO FOUND THAT EVEN BEFORE THE AO, ASSESSEE WAS GIVEN ADEQUATE OPPORTUNITY TO REBUT THE FINDINGS RECORDED DURING SURVEY M.A. N OS . 79 TO 82/ M/201 9 U/S.133A OF T HE ACT, BUT INSPITE OF GIVING SO MANY OPPORTUNITIES BY THE AO, NOBODY ATTENDED NOR ANY DETAILS / EXPLANATION WAS FURNISHED BY THE ASSESSEE. 4. WE HAD ALSO CAREFULLY GONE THROUGH THE JUDICIAL PRONOUNCEMENTS REFERRED BY LEARNED AR WITH REGARD TO DELAY IN FI LING APPEAL AND CONDONATION THEREOF, HOWEVER THE JUDICIAL PRONOUNCEMENTS ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE, WHEREIN ASSESSEE NOT ONLY GROSSLY FAILED TO APPEAR BEFORE CIT(A), BUT ALSO BEFORE THE AO. EVEN THE APPEAL FILED BEFORE THE TRIBUNA L IS DELAYED FOR MORE THAN 33 MONTHS WITHOUT ANY REASON MUCH LESS THAN A COGENT REASON. 5. ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE HONBLE ITAT HAS DECIDED THE MATTER OF CONTROVERSY WITHOUT DEALING THE LAW RELIED BY THE LD. REPRESENTATIVE OF THE ASSESSEE. SUFFICIENT CAUSE FOR FILING THE APPEAL DELAYED HAS NOT BEEN DEALT WITH BY THE TRIBUNAL. THE ONLY THING WHICH HA S BEEN MENTIONED THAT THE ASSESSEE WAS NOT APPEARING BEFORE THE CIT(A) AS WELL AS BEFORE THE AO REGULARLY. THE AFFIDAVIT FILED BY THE SHRI MOHAN JAIRAM DODDAL HAS ALSO NO T DEALT WITH. THERE IS NO SPEAKING ORDER TO DEAL WITH THE CONDONATION OF DELAY. 6. IT IS ALSO NOT IN DISPUTE THAT WHEN THE TRIBUNAL DID NOT CONSIDER THE AUTHORITY RELIED BY THE LD. REPRESENTATIVE OF THE ASS ESSEE THEN IN THE CIRCUMSTANCES THE TRIBUNAL CAN CORRECT THE ORDER IN VIEW OF THE PROVISIONS U/S 254(2) OF THE ACT IN VIEW OF THE DECISI ON OF THE HONBLE SUPREME COURT IN CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD.(2008) 305 ITR 0227 . THE TRIBUNAL DID NOT DISCUSS THE LAW SETTLED IN CASE OF Y.P. TRIVEDI VS. THE JTD. CIT - RG - 11(3), MUMBAI G BENCH ITA. NO.5944/M/2010 280 ITR 0357 A ND SHRI SREENIVAS CHARITABLE TRUST VS. DY. CIT (280 ITR 357) WHICH HAVE BEEN RELIED BY THE LD. REPRESENTATIVE OF THE ASSESSEE . T AKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES , WE RECALL ED THE ORDER DATED 30.08.2018 IN ALL THE APPEALS MENTIONED ABOVE . M.A. N OS . 79 TO 82/ M/201 9 IN THE RESULT , THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE HEREBY ORDERED TO BE ALLOWED ACCORDINGLY . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 03 /05 / 2019 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 03 /05 / 2019 VIJAY COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL RE PRESENTATIVE FOR THE REVENUE, A , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES