R.R.Constructions, CHENNAI V. ACIT, CHENNAI

MA 85/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0506 (ITAT-CHENNAI)
• Duration Of Justice: 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 21-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N DEVANATHAN
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER .. M.P. NO. 85/MDS/2013 (IN I.T.A. NO. 1331/MDS./2012) ASSESSMENT YEAR : 2008-09 M/S.R.R. CONSTRUCTION. NO.1,DORAI ARASAN STREET, SALIGRAMAM, CHENNAI 600 093. PAN : AAAFR 0752 N (PETITIONER) V. ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-IV, CHENNAI 600 034. (RESPONDENT) PETITIONER BY : SHRI N. DEVANATHAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 07.06.2013 DATE OF PRONOUNCEMENT: 07.06.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION, ASSESSEE SEE KS RE-CALL OF AN ORDER DATED 14.3.2013 OF THIS TRIBUNAL, ON AN AP PEAL FILED BY THE REVENUE, FOR A REASON THAT THE SAID ORDER WAS PASSE D EX PARTE . M.P. NO. 85/MDS/13 2 2. AS PER ASSESSEE, COUNSEL CONCERNED COULD NOT APP EAR SINCE HE HAD ARRIVED LATE. ASSESSEE STATES IN THE PETITION THAT ITS COUNSEL WAS UNDERGOING PHYSIOTHERAPY DUE TO FALL FROM STAIRS. 3. CITING RULE 25 OF APPELLATE TRIBUNAL RULES. 1963 , LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER OF THE TRIBUN AL HAD TO BE RECALLED. AS PER THE LEARNED A.R., THE ONLY REQUI REMENT UNDER PROVISO TO RULE 25 IS THAT RESPONDENT SHOULD SATISF Y THE TRIBUNAL ON THE CAUSE OF HIS NON-APPEARANCE. THIS ONUS CAST ON THE ASSESSEE HAS BEEN PROPERLY DISCHARGED. FURTHER, AS PER THE LEARNED A.R., DUE TO FAULT OF A COUNSEL, AN ASSESSEE SHOULD NOT BE PU T ON PERIL. LEARNED A.R. ALSO POINTED OUT THAT THE TRIBUNAL WAS AN INST ITUTION OF CORRECTION. LEARNED A.R. ALSO SUBMITTED THAT THERE WAS A MISTAK E IN THE ORDER OF THE TRIBUNAL, IT HAVING FAILED TO PROPERLY CONSIDER SUB-CLAUSE (A) OF CLAUSE (I) OF SUB-SECTION (4) OF SECTION 80-IA. AC CORDING TO HIM, DEDUCTION UNDER SECTION 80-IA(4) IS AVAILABLE TO AN Y BODY ESTABLISHED OR CONSTITUTED UNDER CENTRE OR STATE AND ACT AND AS SESSEE BEING A PARTNERSHIP FIRM HAD TO BE CONSTRUED AS A BODY ESTA BLISHED UNDER THE PARTNERSHIP ACT, ELIGIBLE FOR SUCH DEDUCTION. M.P. NO. 85/MDS/13 3 4. ON THE OTHER HAND, SUBMISSION OF THE LEARNED D.R . WAS THAT THE ISSUES WERE DECIDED ON MERITS AND A RE-CALL OF THE ORDER WAS NOT CALLED FOR. 5. WE HAVE PERUSED THE ORDER OF THIS TRIBUNAL AND H EARD THE RIVAL SUBMISSIONS. AS PER RULE 25 OF APPELLATE TRIBUNAL RULES, 1963, WHEN, ON THE DATE OF HEARING, THE APPELLANT APPEARS AND RESPONDENT DOES NOT APPEAR, THE TRIBUNAL CAN DISPOSE OF THE AP PEAL ON MERITS AFTER HEARING THE APPELLANT. PROVISO TO THE SAID R ULE ALSO STATES THAT IF THE RESPONDENT SATISFIES THE TRIBUNAL THAT THERE WA S SUFFICIENT CAUSE FOR NON-APPEARANCE, THEN THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER. HOWEVER, IN OUR OPINION, THIS RULE CANNOT BE INTERPRETED TO MEAN THAT IN EVERY CASE WHERE DECISI ON HAS BEEN REACHED BY THE TRIBUNAL ON MERITS AND NO GLARING OR APPARENT MISTAKE WHATSOEVER IS SHOWN THEREIN, IT IS STILL TO BE RECA LLED. TRIBUNAL HAD TAKEN A VIEW THAT ASSESSEE WAS NOT ELIGIBLE FOR A D EDUCTION UNDER SECTION 80-IA AFTER TAKING INTO ACCOUNT ALL THE ASP ECTS RELATING TO THE CASE. THE QUESTION RAISED WAS WHETHER ASSESSEE WAS ELIGIBLE FOR CLAIMING DEDUCTION UNDER SECTION 80-IA(4) OF INCOME -TAX ACT, 1961 (IN SHORT 'THE ACT'). ASSESSEE ADMITTEDLY WAS ONLY A P ARTNERSHIP AND NOT A LIMITED COMPANY. AS PER THE REVENUE, ASSESSEE WA S ONLY M.P. NO. 85/MDS/13 4 EXECUTING CIVIL WORK FOR DIFFERENT ORGANIZATIONS ON CONTRACT BASIS. CONSIDERING THESE ASPECTS, THE TRIBUNAL CAME TO A C ONCLUSION THAT ASSESSEE BEING NOT A COMPANY REGISTERED IN INDIA, I T COULD NOT AVAIL OF THE DEDUCTION UNDER SECTION 80-IA(4) OF THE ACT. T RIBUNAL ALSO CAME TO A FACTUAL FINDING THAT NOTHING WAS ON RECORD TO SHOW THAT THE AGREEMENT ENTERED BY THE ASSESSEE WITH CENTRAL GOVE RNMENT, STATE GOVERNMENT, LOCAL AUTHORITY OR ANY STATUTORY BODY W ERE FOR DEVELOPING ANY INFRASTRUCTURAL FACILITIES. RELIANC E WAS ALSO PLACED ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF C OMMISSIONER OF CENTRAL EXCISE V. HARICHAND SHRI GOPAL (2011) 1 SCC 236. CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DMI FOUNDATIONS V. DIT(E) IN I.T.A. NO. 185/MDS/2012 DATED 15.4.2013 H AD ALSO TAKEN A SIMILAR VIEW. ARGUMENT OF THE LEARNED A.R. THAT PA RTNERSHIP FIRM WAS A BODY ESTABLISHED OR CONSTITUTED UNDER A CENTRE OR STATE ACT CANNOT BE ACCEPTED FOR THE SIMPLE REASON THAT HAD IT BEEN SO, THE LEGISLATURE WOULD NOT HAVE MADE SPECIFIC LIMITATION BY VIRTUE O F THE ABOVE CLAUSE, WHEREBY ONLY COMPANIES AND CORPORATE BODIES OF SIMI LAR NATURE HAVE BEEN MADE ELIGIBLE FOR CLAIMING SUCH DEDUCTION. 6. NO DOUBT PROVISO TO RULE 25 SAYS THAT THIS TRIBU NAL SHALL SET ASIDE AN EX-PARTE ORDER IF SUFFICIENT CAUSE IS SHOW N FOR NON- M.P. NO. 85/MDS/13 5 APPEARANCE. IN OUR OPINION, THIS DOES NOT GIVE AN UNFETTERED RIGHT TO AN ASSESSEE TO CLAIM A RECALL OF THE ORDER, EVEN WH ERE NO MISTAKE IS SHOWN IN AN ORDER PASSED BY THIS TRIBUNAL ON MERITS , AND IT IS NOT POSSIBLE FOR THE ASSESSEE TO SHOW THAT ANY PREJUDIC E HAS BEEN CAUSED TO IT, ESPECIALLY SO, WHEN NON-APPEARANCE ON THE DATE OF HEARING WAS DUE TO ASSESSEES OWN FAILURE. IN THE CASE BEFORE US, THE REASON CITED FOR NON-APPEARANCE IS THAT THE COU NSEL FELL FROM THE STAIRS AND UNDERWENT PHYSIOTHERAPY. BUT, IT IS ALS O MENTIONED THAT COUNSEL HAD INDEED ARRIVED ALBEIT LATE. NO AFFIDAV IT FROM THE CONCERNED COUNSEL WAS FILED IN SUPPORT. THUS THERE WAS NO SUFFICIENT CAUSE FOR INVOKING PROVISO TO RULE 25. RULES MADE UNDER SUB-SECTION (5) OF SECTION 255 ARE TO BE INTERPRETED IN A WAY W HICH ENSURES SPEEDY AND EFFECTIVE JUSTICE AND NOT FOR PROLONGING ISSUES. RULE MAKING POWERS GIVEN UNDER SUB-SECTION (5) OF SECTIO N 255 IS ONLY FOR REGULATING THE PROCEDURES OF THE TRIBUNAL, BUT SUCH POWERS ARE NEVERTHELESS, SUBJECT TO THE PROVISIONS OF THE ACT. SUCH RULES CANNOT VEST ON AN ASSESSEE ANY RIGHTS OVER AND ABOVE WHAT IS GIVEN IN THE STATUTE UNDER WHICH THE RULES ARE FORMULATED. RULE S CANNOT BE CONSIDERED AS A HANDMAID, FOR HELPING RETICENT AND NEGLIGENT ASSESSEES AND THEIR COUNSELS, WHO CHOSE TO SLEEP DE SPITE RECEIPT OF M.P. NO. 85/MDS/13 6 HEARING NOTICES. NO RULE, IN OUR OPINION, CAN GIVE AN ASSESSEE ANY RIGHT, WHICH HAS ITS ORIGIN IN THEIR OWN LAXITY. 7. ASSESSEE HAS NOT BEEN ABLE TO SHOW ANY MISTAKE I N THE ORDER OF THE TRIBUNAL NOR ANY REASONABLE CAUSE FOR ITS NO N-APPEARANCE. ASSESSEE IS ONLY SEEKING A REVIEW OF THE TRIBUNAL O RDER, WHICH WAS PASSED ON MERITS. RELIANCE ON RULE 25 OF APPELLATE TRIBUNAL RULES, 1963 CANNOT BE USED AS A PLOY TO CIRCUMVENT THE PRO CESS OF RENDERING JUSTICE, WHEN A REASONED DECISION HAS BEE N REACHED BY THE TRIBUNAL. CASES RELIED ON BY THE LD. COUNSEL FOR T HE ASSESSEE WERE ALL ON DIFFERENT FACT CIRCUMSTANCES AND WILL NOT FURTHE R THE CASE OF THE ASSESSEE IN ANY MANNER. 8. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON FRIDAY, THE 7 TH OF JUNE, 2013, AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 7 TH JUNE, 2012. KRI. COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/D.R./GUAR D FILE