M.Natarajan, CHENNAI V. DCIT, CHENNAI

MA 90/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4447 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 22-07-2016
• Assessment Year: misc
• Appeal Filed On: 29-04-2016
• Court: TRIBUNAL
• Department Lawyers: DURAI
• Assessee Lawyers: T VASUDEVAN
• Keywords: Opportunity of being heard; Validity of assessment
• Section: 260A; 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , ! ' . #$ , & '( ) [ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ] M.P.NO.90/MDS/2016 [IN I.T.(SS)A.NO. 06/MDS/2013 BLOCK PERIOD 1.4.1986 TO 24.9.1996 SHRI M. NATARAJAN M/S TAMILARASI PUBLICATION NO.84, TTK ROAD CHENNAI VS. THE DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE II(4) CHENNAI [PAN ABCPN 7785 J ] ( PETITIONER ) (RESPONDENT) PETITIONER BY : SHRI T. VASUDEVAN, ADVOCATE RESPONDENT BY : SHRI DURAIPANDIAN, JCIT / DATE OF HEARING : 22 - 07 - 201 6 ! / DATE OF PRONOUNCEMENT : 29 - 0 7 - 2016 * / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS PETITION THE ASSESSEE SEE KS RECALL OF THE ORDER OF THIS TRIBUNAL IN I.T.(SS)A.NO.06/MDS/2 013 DATED 30.9.2015. 2. THE LD. A.R SUBMITTED THAT THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS BEFORE THIS TRIBUNAL VIDE PETITION DATED 2 7.5.2015 CHALLENGING THE VALIDITY OF ASSESSMENT ORDER PASSED U/S 153C R .W.S 158BC R.W.S MP NO.90/16 :- 2 -: 260A OF THE ACT ON THE REASON THAT IT WAS IN ACCORD ANCE WITH THE PROVISIONS OF SEC. 158BG OF THE ACT AND HENCE, ADDI TION MADE THEREIN WITHOUT THE APPROVAL OF THE CONCERNED AUTHORITY IS INVALID AND UNSUSTAINABLE IN LAW. THE TRIBUNAL WHILE DISPOSING OF THE ADDITIONAL GROUNDS OBSERVED IN PARA 3 OF ITS ORDER THAT THE AB OVESAID ADDITIONAL GROUNDS AS WELL AS PETITION FOR ADMISSION OF ADDITI ONAL GROUNDS WAS FILED BY THE ASSESSEES COUNSEL INSTEAD OF THE AS SESSEE HIMSELF. THUS, IT WAS HELD THAT FILING OF ADDITIONAL GROUNDS IS EQ UAL TO FILING OF APPEAL BEFORE THE TRIBUNAL AND IT IS TO BE SIGNED BY THE ASSESSEE HIMSELF AND NONE OTHER THAN THE ASSESSEE. THE LD. AR SUBMITTE D THAT RULE 11 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963, STAT ES THAT THE ASSESSEE CAN WITH THE LEAVE OF THE TRIBUNAL BE HEARD ON ANY GROU ND NOT SET FORTH IN THE MEMORANDUM OF APPEAL AND RULE 12 PROVIDES FOR AN OPPORTUNITY TO BE GIVEN TO AMEND THE MEMORANDUM OF APPEAL IF IT IS NOT IN THE PRESCRIBED FORM. THE ASSESSEE SUBMITS THAT IN SO FAR AS SUCH AN OPPORTUNITY WAS NOT PROVIDED TO PLACE ON RE CORD THE ADDITIONAL GROUNDS SIGNED BY THE ASSESSEE AND THE ADDITIONAL G ROUNDS WERE DISMISSED AS NOT MAINTAINABLE, THE ORDER OF THE TRI BUNAL SUFFERS FROM A MISTAKE APPARENT ON THE FACE OF RECORD WARRANTING R ECTIFICATION OF THE SAME. MP NO.90/16 :- 3 -: 3. IN THIS REGARD, THE PETITIONER SUBMITS TH AT THE SUPREME COURT IN CIT VS CALCUTTA DISCOUNT CO. [91 ITR 8] OB SERVED THAT THE TRIBUNAL SHALL NOT BE INFLUENCED BY PROCEDURAL TECH NICALITIES INSTEAD OF DEALING WITH THE SUBSTANCE OF THE MATTER AND HELD T HAT NO SPECIFIC FORMULA IS NECESSARY FOR SEEKING RELIEF AT THE HAND S OF ANY COURT OR TRIBUNAL IF NECESSARY GROUNDS ARE TAKEN IN THE APPE AL MEMO.' IN THE CASE OF V.K.SOOD ENGINEERS AND CONTRACTORS (P.) LTD . [264 ITR 313], THE PUNJAB & HARYANA HIGH COURT HELD THAT 'ITAT RULES REGARDING FILING OF ADDITIONAL GROUNDS ARE PROCEDURAL IN CHAR ACTER AND SO A GROUND SHOULD NOT BE MADE OUT FOR DISMISSING THE AP PEAL IN LIMINIE.' THE ASSESSEE FURTHER SUBMITTED THAT THE REFERENCE TO RULE 29 OF ITAT RULES AND SEC.140 OF I.T.ACT IN THE ORDER IS A PRIM A FACIE MISTAKE AS THEY DO NOT ADDRESS THE ISSUE OF SIGNING OF ADDITIO NAL GROUNDS BY ASSESSEE AND HENCE THE REJECTION OF ADDITIONAL GROU NDS WITH REFERENCE TO THESE PROVISIONS IS A MISTAKE APPARENT ON THE FACE OF RECORD WARRANTING RECTIFICATION. 4. FURTHER IT WAS SUBMITTED THAT ON MERIT, THE ISSUE I S COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIB UNAL IN THE CASE OF JAYA PUBLICATIONS AND THEREFORE, THE MATTER OUGHT T O HAVE BEEN REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR F RESH CONSIDERATION AND SHOULD NOT HAVE CONFIRMED THE ADDITION. ACCORDINGL Y, CONCLUSION OF THE MP NO.90/16 :- 4 -: TRIBUNAL IS NOT IN CONSONANCE WITH THE FACTS OF THE CASE. HE PRAYED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED FOR RECTIFICATION. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECO RD TO RECALL THE IMPUGNED ORDER OF THE TRIBUNAL SINCE THE ADDITIONAL GROUNDS IS NOT IN A PRESCRIBED FORM. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. ADMITTEDLY, IN THIS CASE, ADDITIONAL GROUN DS WAS SIGNED BY THE ASSESSEES COUNSEL HIMSELF. AS DISCUSSED IN THE OR DER OF THE TRIBUNAL, THE ADDITIONAL GROUNDS SHOULD HAVE BEEN SIGNED BY T HE ASSESSEE HIMSELF RATHER THAN THE ASSESSEES COUNSEL. NOW T HE CONTENTION OF THE LD. REPRESENTATIVE FOR THE ASSESSEE IS THAT BEFORE DISMISSING THE ADDITIONAL GROUNDS HOLDING THAT IT WAS NOT SIGNED B Y THE ASSESSEE, THE TRIBUNAL SHOULD HAVE GIVEN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THAT ISSUE IN VIEW OF PROVISO TO RULE 1 1 OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963. 7. WE HAVE GONE THROUGH THE ITAT RULES 1963. ITAT RUL E 6, 7, 11 AND 12 READ AS UNDER: RULE 6: (1) A MEMORANDUM OF APPEAL TO THE TRIBUNAL SHALL BE PRESENTED BY THE APPELLANT IN PERSON OR BY AN AGENT TO THE REGISTRAR AT THE HEADQUARTERS OF THE TRIBUNAL, AT B OMBAY, OR TO AN OFFICER AUTHORISED IN THIS BEHALF BY THE REGISTR AR, OR SENT BY REGISTERED POST ADDRESSED TO THE REGISTRAR OR TO SU CH OFFICER. MP NO.90/16 :- 5 -: (2) A MEMORANDUM OF APPEAL SENT BY POST UNDER SUB-R ULE (1) SHALL BE DEEMED TO HAVE BEEN PRESENTED TO THE REGIS TRAR OR TO THE OFFICER AUTHORISED BY THE REGISTRAR, ON THE DAY ON WHICH IT IS RECEIVED IN THE OFFICE OF THE TRIBUNAL AT BOMBAY , OR, AS THE CASE MAY BE, IN THE OFFICE OF SUCH OFFICER. RULE 7: THE REGISTRAR, OR, AS THE CASE MAY BE, THE AUTHORIS ED OFFICER, SHALL ENDORSE ON EVERY MEMORANDUM OF APPEAL THE DAT E ON WHICH IT IS PRESENTED OR DEEMED TO HAVE BEEN PRESEN TED UNDER RULE 6 AND SHALL SIGN THE ENDORSEMENT. RULE 11 THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRI BUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FO RTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY LEAVE OF THE TRIBU NAL UNDER THIS RULE: PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECIS ION ON ANY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED T HEREBY HAS HAD A SUFFICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUND. RULE 12 THE TRIBUNAL MAY REJECT A MEMORANDUM OF APPEAL, IF IT IS NOT IN THE PRESCRIBED FORM OR RETURN IT FOR BEING AMEND ED WITHIN SUCH TIME AS IT MAY ALLOW. ON REPRESENTATION AFTER SUCH AMENDMENT, THE MEMORANDUM SHALL BE SIGNED AND DATED BY THE OFFICER COMPETENT TO MAKE AN ENDORSEMENT UNDER RULE 7 8. AS EVIDENCED FROM THE ABOVE RULES, THE ASSESSEE IS REQUIRED TO FILE ADDITIONAL GROUNDS SIGNED BY THE ASSESSEE ITSELF. THE TRIBUNAL BY OBSERVING THAT THE ADDITIONAL GROUNDS ARE NOT PR OPERLY SIGNED AND VERIFIED BY THE ASSESSEE HIMSELF, TOOK A VIEW THAT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE CANNOT BE ENTERTAIN ED. NOW, BY WAY OF MISCELLANEOUS PETITION THE ASSESSEES COUNSEL W ANTS TO RECALL THE ORDER OF THE TRIBUNAL DATED 30.9.2015. MP NO.90/16 :- 6 -: 9. THE ISSUE ARISES FOR CONSIDERATION IS AS TO WHETHER THE ADDITIONAL GROUNDS SIGNED BY THE ASSESSEES COUNSE L INSTEAD OF THE ASSESSEE HIMSELF, AS REQUIRED BY SEC. 140(C) OF THE ACT WERE VALID ADDITIONAL GROUNDS AND WHETHER IT IS TO BE DECIDED ON MERIT. THE LD. AR SUBMITTED THAT IT IS A CURABLE MISTAKE U/S 292B OF THE ACT AND IT SHOULD HAVE BEEN BROUGHT TO THE NOTICE OF THE ASSE SSEES COUNSEL AT THE TIME OF HEARING. SINCE THE TRIBUNAL FAILED TO BRING THE DEFECT TO THE NOTICE OF THE ASSESSEE, THE TRIBUNAL IS REQUIRED T O RECALL THE ABOVE ORDER. AS HELD BY THE SUPREME COURT IN THE CASE OF CIT VS KESHAV CHANDRA MANDAL, 18 ITR 569, IF THE ACT REQUIRES PER SONAL SIGNATURE OF A PERSON, THE SIGNATURE NEEDED TO BE APPENDED MUST BE OF THAT PERSON ALONE AND NONE OTHER. UNDISPUTEDLY, IN THE PRESENT CASE, THE SIGNATURE WAS MADE BY THE ASSESSEES COUNSEL RATHE R THE ASSESSEE HIMSELF. THE ASSESSEES COUNSEL HEREIN WANTS TO C HALLENGE THE VALIDITY OF ASSESSMENT BY RAISING ADDITIONAL GROUNDS THAT T HE ASSESSMENT ORDER IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SEC. 15 8BG OF THE ACT. WHEN THE ASSESSEE WANT TO QUESTION THE LEGALITY OF ASSESSMENT U/S 158BG, THE ASSESSEE IS ALSO BOUND TO FOLLOW THE L EGAL PRINCIPLES ENVISAGED THEREIN. THE ASSESSEE CANNOT PICK AND C HOOSE ACCORDING TO HIS NEEDS. THE OTHER ARGUMENT OF THE LD. AR IS THA T THE TRIBUNAL HAS NOT POINTED OUT THE DEFECT IN THE ADDITIONAL GROUND S AT THE TIME OF HEARING. THE TRIBUNAL HAS GIVEN LOT OF OPPORTUNITI ES AND THE CASE WAS MP NO.90/16 :- 7 -: PENDING BEFORE THIS TRIBUNAL FROM 1.4.2013 TILL THE FINAL HEARING OF THE APPEAL ON 7.8.2015. FURTHER THE CASE WAS PART HEAR D ON 22.5.2015. AFTER THAT, THE PARTIES HAVE TAKEN SEVEN ADJOURNME NTS BY ONE WAY OR THE OTHER . THE LAW ASSISTS TO THOSE WHO ARE VIGIL ANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMB ODIED ON THE DICTUM VIGILANTIBUS, ET NON DORMIENTIBUS, JURA SUBVENIUNT IN OUR OPINION, WHERE NO NEGLIGENCE, NO INACTION OR A BONAFIDE CAN BE IMPUTED TO THE ASSESSEE, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF J USTICE MUST COME WITH CLEAN HANDS. THIS LAPSE ON THE PART OF THE ASSESSEE WAS DUE TO THE NEGLIGENCE AND INACTION. THE ASSESSEE COULD H AVE VERY WELL AVOIDED THIS LAPSE BY EXERCISE OF DUE CARE AND ATTE NTION. IN OUR OPINION, THERE EXISTS NO ERROR AT THE FACE OF THE O RDER OF THE TRIBUNAL. IN THE CASE OF ITO VS VOLKART BROTHERS, 82 ITR 50, THE SUPREME COURT HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED ONLY BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A DECISION ON A DEBA TABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD . EVIDEN TLY, THE ISSUE RAISED BY THE ASSESSEE HEREIN IS VERY MUCH A DEBATABLE ON E WHICH CANNOT BE DEALT WITH U/S 254(2) OF THE ACT. ACCORDINGLY, WE FIND NO MERIT IN THE MP NO.90/16 :- 8 -: ARGUMENTS OF THE LD. REPRESENTATIVE FOR THE ASSESS EE. ACCORDINGLY, THE PETITION FILED BY THE ASSESSEE IS DISMISSED. 10. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2016, AT CHENNAI. SD/- SD/- ( ! ' . #$ ) ( DUVVURU RL REDDY ) & / JUDICIAL MEMBER ( ) ( CHANDRA POOJARI ) / ACCOUNTANT MEMBER '#$ / CHENNAI %&' / DATED: 29 TH JULY, 2016 RD (&#) *+,-./ 01#. / COPY TO: 1 . PETITIONER 4. (2 (2 3 / CIT 2. *4256 / RESPONDENT 5. .7892 *++:; / DR 3. (2 (2 3 (0/9-) / CIT(A) 6. 8>? @- / GF