The Gujarat State Co. Op. Agriculture & Rural Development Bank Ltd., Ahmedabad V. ITO, Ward-5(2)(2), Ahmedabad

MA 86/AHD/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2383 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-05-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 11-10-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 80P; 254(2)

Judgement Text

` आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ ‘A’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER Misc. Application No.86/Ahd/2023 IN ITA No.462/Ahd/2018 Assessment Year : 2014-15 Gujarat State Co-op Agriculture and Rural Development Bank Ltd. Nr.Handloom House Navrangpura Ahmedabad. PAN : AAAAG 0281 E Vs. ITO, Ward-5(2)(2) Ahmedabad. 0 अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸/ (Appellant) 灹瀄 य 灹瀄 य灹瀄 य 灹瀄 यथ牸 थ牸थ牸 थ牸/(Respondent) Assessee by : Shri S.N. Divatia, AR & Shri Samir Vora, AR Revenue by : Shri Sanjay Kumar, Sr. DR सुनवाई क琉 तारीख/Date of Hearing : 10/05/2024 घोषणा क琉 तारीख /Date of Pronouncement: 14/05/2024 आदेश आदेशआदेश आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER Present Misc. Application has been filed by the assessee seeking recall of the order passed by the ITAT, ex parte, in its appeal bearing ITA No.462/Ahd/2018 for the Asstt. Year 2014-15 dated 22.6.2023. 2. The aforesaid order was passed ex parte dismissing the appeal which sought deletion of disallowance of deduction claimed by the assessee under section 80P(2)(d) of interest income earned from Nationalized Banks amounting to Rs.11,28,91,418/- and deduction under section 80P of the Act on rental income earned to the tune of Misc. Application No.86/Ahd/2023 in ITA No.462/Ahd/2018 2 Rs.32,61,007/-. As per the application filed by the assessee, none could appear on behalf of the assessee on the date of hearing, since the assessee was not intimated of the date of hearing by his tax consultant. It has been stated in the application that considering the quantum of disallowance and its tax effect and consequence to all other years involved, the applicant was serious to attend and conduct the appeal proceedings. This plea of the applicant finds mention at para-4 of its MA as under: “4. The applicant submits that there could not be any appearance on the date of last hearing since neither the applicant nor its office was having any information about that date of hearing which was taken by the tax consultant and he did not updated the applicant. Considering the quantum of disallowance, its tax effect and consequence to all other years involved, the applicant had all the seriousness to attend & conduct the appeal.” 3. Further, as per the applicant, there is a mistake in the impugned order to the effect that while deduction under section 80P(2)(d) claimed by the assessee on the interest income earned has been denied and the said income held to be taxable, the expenditure incurred to earn such income have not been allowed. The applicant stated that this was an alternative claim of the assessee for allowance of pro-rata expenditure, and accordingly, the prayer of the applicant is that the order be modified by directing the AO to allow pro rata expenses for income brought to tax. To this effect, the pleadings of the applicant found mention at para-5 and 6 of the MA as under: “5. The applicant states with utmost respect that there is a mistake apparent on record in as much as though .the aforesaid income have been held to be taxable, the expenses incurred to earn the said income has not been allowed which is the cardinal principle of law of taxation i.e. all expenses/ losses attributable to such interest income are required to be necessarily deducted and only resultant interest income is eligible for deduction under S. 80P(2)(d) of the Act. It was the alternative claim of the, Misc. Application No.86/Ahd/2023 in ITA No.462/Ahd/2018 3 assessee for allowance of pro-rata expenditure against the interest income from investment in cooperative banks etc. 6. The applicant states that the order of the tribunal dated 22.06.2023 has been downloaded from site of Tribunal by the new tax consultant on 26.09.2023 and as such the present rectification application u/s 254(2) is well within the time. It is therefore prayed that the order dated 22.06.2023 deserves to be modified by directing the AO to allow the pro-rata expenses from the income brought to tax. 4. Before us, the solitary plea of the ld. Counsel for the assessee was that the ex-parte order of the ITAT be recalled to meet the ends of justice so that the assessee gets an opportunity to make arguments before the issues are finally adjudicated. 5. We are not inclined to entertain this application filed by the assessee. The simple reason being that the assessee is a habitual defaulter, persistently failing to appear and argue its case in its own appeal. A perusal of the order of the ITAT, which is sought to be restored, reveals that this has been passed in the second round; that in the first round also the assessee failed to appear before the ITAT and an ex parte order was consequently passed. The assessee filed a Miscellaneous Application seeking recall of the ex parte order and the ITAT was liberal enough to give the assessee another chance by recalling its order. In the second chance also, again none appeared and again the ITAT, perforce, passed an ex parte order. A perusal of the order reveals that none appeared on behalf of the assessee, despite notice being served at the address mentioned in Form No.36 being that of the counsel of the assessee, Shri Ketan H. Shah, who appeared in the MA seeking recall of the order of the ITAT. The order notes that notice was returned by the postal authority with the endorsement, “unclaimed”. The order of the ITAT further notes consistent non-compliance of the assessee, finding that the assessee had sought adjournment on as many as 25 occasions before ex parte Misc. Application No.86/Ahd/2023 in ITA No.462/Ahd/2018 4 order was passed. The Tribunal has strongly noted in the order that it seems the assessee harbours a wrong notion that its duty ends with the filing of appeal and it is for the Courts then to catch the appellants and hear them out for imparting justice. The Tribunal has taken exception to this behavior of the assessee in not pursuing its case seriously; not bothering to appear and argue its case after filing appeal in the first round, and then admitting to being lax in noting the date of hearing while seeking recall of the order, and again not appearing in second round for hearing despite a detailed order before us. As noted in the order of the ITAT, the assessee has belied the trust reposed on it, and this attitude of the assessee was totally unacceptable and deprecated in the strongest terms. The relevant observation of the ITAT’s order is at page no.2 and 3 as under: “3. Accordingly, the appeal has come up before us in second round. However, none came present on behalf of the assessee on the date fixed i.e 15-05-2023 and the matter was adjourned to 6.6.2023. Notice was issued to the assessee at the address stated in Form No.36, being that of the counsel for the assessee, Sh Ketan H. Shah, who we have noted had appeared for the assessee in the application filed seeking recall of the earlier order of the ITAT.However, the said notice was returned by postal authority with the endorsement “unclaimed”. The same is placed on record. And again the assessee remained unrepresented on the appointed date of hearing. It is not that the appeal is being heard for the first time. As noted by us above, the appeal is being heard afresh on the acceptance of the assesses application seeking recall of the earlier order passed by the ITAT .The assessee remained unrepresented in the first round also, when an ex parte order was passed. And now again in the second round before us there is no representation before us. Even the notice sent for hearing at the address mentioned in the Form for filing appeal before us is not being claimed, being returned with the noting “unclaimed”. Also, we have noted from the order sheet entries of hearings before us in the first round, that the assesses behaviour of non participation in its own appeal has been a consistent feature. The assessee has consistently sought adjournment on most of the 25 occasions when the appeal was fixed for hearing between 23-10-19 to 06-06-23,when finally the appeal was Misc. Application No.86/Ahd/2023 in ITA No.462/Ahd/2018 5 adjudicated exparte. And after recalling the order, the assessee has continued with its earlier behaviour. It seems the assessee harbours a wrong notion that its duty ends with the filing of appeal and it is for the courts then to catch the appellants and hear them out for imparting justice. It is the assessee who has come up before us seeking justice and its continuous non participation in both the rounds is indicative of the total disregard and disrespect it has for the judicial system. The assessee has never taken its appeal seriously, not bothering to appear and argue its case after filing appeal in the first round, then admitting to being lax in noting the date of hearing while seeking recall of the order passed by the ITAT and now again not appearing in the second round before us. Despite a detailed speaking order being passed in the first round, the ITAT still reposed trust in the assessee and afforded another opportunity to the assessee to argue its case accepting its plea for recall of the appeal in the MA filed by the assessee. But the assessee has belied the trust reposed on it. This attitude of the assessee is totally unacceptable and is deprecated in the strongest terms. 5. Be that so, we proceed to now adjudicate the appeal again exparte.” 6. It is clearly evident from the above that the assessee is non- serious in pursuing its appeal. The only interest of the assessee is in filing appeal and thereafter it chooses to disappear and not argue its appeal. As noted above, it has already happened twice. The Tribunal has been just enough to grant the assessee sufficient opportunity in the first round and again in the second round; and we see no reason now for giving another opportunity to the assessee when it failed to avail the sufficient opportunity already granted to it in the past for no plausible reason. We are not in the least bit inclined to entertain this present application filed by the assessee who, we have noted, has total disdain for the due legal process. The assessee is persistently filing one MA after another, completely disregarding the strong observations made against it by the ITAT. In our view, such an assessee, who demonstrates such obstinate behavior of taking the process of law for granted, does not deserve Misc. Application No.86/Ahd/2023 in ITA No.462/Ahd/2018 6 any lenience whatsoever from Courts. On the contrary, such an attitude demands punishment and penalization. Consequently, we find it imperative to dismiss the assessee’s MA, imposing a cost of Rs.5,000/- for wasting the time and resources of the Tribunal. The assessee is directed to deposit the above cost of Rs.5,000/- with Chief Minister’s Relief Fund. 7. In the result, the MA of the assessee is dismissed with cost of Rs.5,000/- as indicated above. Order pronounced in the Court on 14 th May, 2024 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad, dated 14/05/2024 vk* आदेश क琉 灹ितिलिप अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 / The Respondent. 3. संबंिधत आयकर आयु猴 / Concerned CIT 4. आयकर आयु猴)अपील (/ The CIT(A)- 5. िवभागीय 灹ितिनिध ,आयकर अपीलीय अिधकरण,राजोकट/DR,ITAT, Ahmedabad, 6. गाड榁 फाईल /Guard file. आदेशानुसार/ BY ORDER, TRUE COPY सहायक पंजीकार (Asstt. Registrar) आयकर अपीलीय अिधकरण, ITAT, Ahmedabad 1. Date of dictation : 10-05-2024 / 13.05.2024 2. Date on which the typed draft is placed before the Dictating Member. : 13.05.2024 3. Date on which the approved draft comes to the Sr.P.S./P.S : 13.05.2024 4. Date on which the fair order is placed before the Dictating Member for pronouncement. : 14.05.2024 5. Date on which fair order placed before Other Member : 6. Date on which the fair order comes back to the Sr.P.S./P.S. : 14.05.2024 7. Date on which the file goes to the Bench Clerk. : 14.05.2024 8. Date on which the file goes to the Head Clerk. : 9. The date on which the file goes to the Assistant Registrar for signature on the order. : 10. Date of Despatch of the Order :