Ansaldo Energia SPA, CHENNAI V. ADIT, CHENNAI

MA 95/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8929 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-08-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 17-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NISHANT TAKKAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI , ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ] M. P .NO . 95/MDS/2012 [ARISING OUT OF I .T.A N O. 410/MDS/2006 ] ASSESSMENT YEA R : 1999 - 2000 M/S ANSALDO ENERGIA SPA C/O N.MADHAN, S.R.BATLIBOI & CO. 6 TH & 7 TH FLOOR, A BLOCK TIDEL PARK,(MODULE 601,701 & 702) NO.4, RAJIV GANDHI SALAI TARAMANI CHENNAI 600 113 [PAN AACCA 4151 I] VS THE ACIT INTERNATIONAL TAXATION CHENNAI ( PETITIONER ) (RESPONDENT) PETITIONER BY : SHRI NISHANT TAKKAR, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 24 - 08 - 2012 DATE OF PRONOUNCEMENT : 28 - 08 - 2012 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS A MISCELLANEOUS PETITION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 25.5.2012 PASSED IN I.T.A.NO.410/MDS/2006, FOR THE ASSESSMENT YEAR 1999 - 2000. 2 . THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS MISCELLANEOUS PETIT ION IS THAT THE TRIBUNAL WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR NON - APPEARANCE OF THE ASSESSEE ON THE DATE OF M.P 95/2012 : - 2 - : HEARING BY PASSING AN EX - PARTE ORDER WHEN THE NOTICE SENT BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE WAS RETURNED BY TH E POSTAL AUTHORITIES WITH THE REMARK LEFT . 3 . THE A.R OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD GIVEN THE ADDRESS OF THE CHARTERED ACCOUNTANT WHERE THE NOTICE OF HEARING SHOULD HAVE BEEN SENT TO THE ASSESSEE. THE SAID CHARTERED ACCOUNTANT SHRI N.M ADHAN, C/O S.R.BATLIBOI & CO. CHANGED HIS ADDRESS BUT FAILED TO COMMUNICATE THE SAME TO THE TRIBUNAL. THEREFORE, FOR THE FAULT OF THE CHARTERED ACCOUNTANT, THE ASSESSEE SHOULD NOT SUFFER. IT WAS ALSO THE SUBMISSION OF THE A.R THAT THE APPEALS FOR SUBSEQ UENT ASSESSMENT YEARS 2000 - 01 TO 2008 - 09 WERE FILED BEFORE THE TRIBUNAL ON 14.12.2011 WHEREIN THE CHANGED ADDRESS OF THE CHARTERED ACCOUNTANT OF THE ASSESSEE WAS STATED, THEREFORE, THE TRIBUNAL WAS AWARE ABOUT THE CHANGE OF ADDRESS OF THE CHARTERED ACCOUN TANT WHERE THE NOTICE SHOULD HAVE BEEN SENT TO THE ASSESSEE. HE, THEREFORE, PRAYED THAT THE ORDER OF THE TRIBUNAL DATED 25.5.2012 PASSED EX - PARTE QUA THE ASSESSEE SHOULD BE RECALLED AND THE ASSESSEE SHOULD BE GRANTED AN OPPORTUNITY OF HEARING AND THERE AFTER THE APPEAL OF THE ASSESSEE SHOULD BE DISPOSED OF ON MERITS BY THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. M.P 95/2012 : - 3 - : 4 . THE A.R OF THE ASSESSEE RELIED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS P.V.KUMAR, [2005] 2 79 ITR 9(DEL) AND SUBMITTED THAT THE HON'BLE DELHI HIGH COURT HAS HELD THAT WHEN THE NOTICE NOTIFYING THE DATE OF HEARING HAS NOT BEEN SERVED ON THE ASSESSEE, THERE IS NO QUESTION OF DECIDING THE MATTER EX - PARTE. THE TRIBUNAL RENDERED THE DECISION IN AB SENCE OF THE ASSESSEE WITHOUT EFFECTIVE SERVICE OF NOTICE, THE IMPUGNED ORDER IS SET ASIDE AND THE TRIBUNAL IS DIRECTED TO DECIDE THE APPEAL AFRESH AFTER ENSURING EFFECTIVE SERVICE ON THE ASSESSEE IN ACCORDANCE WITH LAW. 5 . HE ALSO RELIED ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF JAGJIVANDAS NANDLAL & CO. VS ITAT & ORS. [2011] 333 ITR 374 , AND SUBMITTED THAT THE HON'BLE HIGH COURT HAS HELD THAT THE IMPUGNED NOTICE OF HEARING SENT BY RPAD WAS NOT SERVED ON THE ASSESSEE FOR WANT OF CORRE CT ADDRESS AND WAS RETURNED BACK BY POSTAL AUTHORITIES, HENCE THE ORDERS OF THE TRIBUNAL ARE QUASHED AND SET ASIDE AND PROCEEDINGS REMANDED BACK TO THE TRIBUNAL FOR FRESH ADJUDICATION. 6 . HE FURTHER SUBMITTED THAT WHILE DECIDING THE APPEAL OF THE ASSESSEE EX - PARTE QUA THE ASSESSEE, THE TRIBUNAL HAS FOLLOWED ITS ORDER PASSED IN ASSESSMENT YEAR 2000 - 01. HE ARGUED THAT THE ASSESSEE HAS ADDITIONAL EVIDENCES WHICH THE ASSESSEE WANTED TO PRODUCE BEFORE THE TRIBUNAL TO DISTINGUISH THE ORDER PASSED BY THE TRIBUNA L IN ASSESSMENT YEAR 2000 - 01. HENCE, GIVEN AN OPPORTUNITY THE M.P 95/2012 : - 4 - : ASSESSEE WILL BE IN A POSITION TO DO SO. HE ALSO ARGUED THAT THE HON'BLE MADRAS HIGH COURT HAS REMANDED THE MATTER BACK TO THE TRIBUNAL FOR CONSIDERATION OF ALL MATERIALS AND THEN DECIDE THE ISSUE AFRESH AND THE ASSESSEE WAS GRANTED LIBERTY TO FILE ALL EVIDENCES AND MATERIALS BEFORE THE TRIBUNAL . HE SUBMITTED THAT GROSS INJUSTICE HAS BEEN CAUSED TO THE ASSESSEE BY DECIDING THE APPEAL OF THE ASSESSEE EX - PARTE QUA THE ASSESSEE. 7 . HE FURTHER RELIED ON THE DECISION OF THE DELHI THIRD MEMBER BENCH OF THE TRIBUNAL IN THE CASE OF NPAR DRUGS(P) LTD VS DCIT , [2006] 98 ITD 285(DEL)(TM) AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT THE DECISION OF A BENCH OF THE TRIBUNAL EVEN IN THE CASE OF THE SAME ASSESSEE IN A PARTICULAR ASSESSMENT YEAR DOES NOT CONSTITUTE A BINDING PRECEDENT ON SUBSEQUENT CO - ORDINATE BENCH OF THE TRIBUNAL IN RELATION TO ANOTHER ASSESSEE OR ANY OTHER ASSESSMENT YEAR OF THE SAME ASSESSEE. A SUBSEQUENT BENCH CAN DRAW DIFFERENT CONC LUSION IF THERE IS ADEQUATE JUSTIFICATION TO DEPART FROM THE EARLIER VIEW E .G W HERE SUBSEQUENTLY NEW OR MORE FACTS OR MATERIAL OR EVIDENCE COME TO LIGHT . 8 . HE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS BRIJ LAL LOHIA & MAHABIR PRASAD KHEMKA, [1972] 84 ITR 273(SC) WHEREIN IT WAS HELD THAT DECISION OF TRIBUNAL REACHED IN PROCEEDINGS FOR EARLIER YEARS DOES NOT OPERATE AS RES JUDICATA PARTICULARLY WHEN ADDITIONAL EVIDENCE IS ADDUCED. M.P 95/2012 : - 5 - : 9 . LASTLY, HE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SWADESHI COTTON MILLS VS UOI, REPORTED IN MANU/SC/ 0048/1981 AND SUBMITTED THAT AT PARA 30 OF ITS ORDER, THE HON'BLE SUPREME COURT HAS HELD AS UNDER: THE MAXIM AUDI ALTERAM PARTEM HAS MANY FACETS. TWO OF THEM ARE: (A) NOTICE OF THE CASE TO BE MET; AND (B) OPPORTUNITY TO EXPLAIN. THIS RULE IS UNIVERSALLY RESPECTED AND DUTY TO AFFORD A FAIR HEARING IN LORD LOREBURN'S OFT - QUOTED LANGUAGE, IS 'A DUTY LYING UPON EVERYONE WHO DECIDES SOMETHING', IN THE EXERCISE OF LEGAL POWER. THE RULE CANNOT BE SACRIFICED AT THE ALTAR OF ADMINISTRATIVE CONVENIENCE OR CELERITY; FOR, 'CONVENIENCE AND JUSTICE' - AS LORD ATKIN FELICITOUSLY PUT IT - 'ARE OFTEN NOT ON SPEAKING TERMS' GENERAL COUNCIL OF MEDICAL EDUCATION V. SPACKMAN (1943) AC 627 AT P. 63 8. 10 . THE DR VEHEMENTLY ARGUED IN SUPPORT OF THE ORDER OF THE TRIBUNAL. HE SUBMITTED THAT THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF JAGJIVANDAS NANDLAL & CO. VS ITAT (SUPRA) RELIED ON BY THE A.R SUPPORTS THE CASE OF THE REVENUE. HE SU BMITTED THAT THE HON'BLE BOMBAY HIGH COURT VIDE ITS ORDER DATED 18.10.2010 REQUESTED THE PRESIDENT OF THE TRIBUNAL EITHER TO FRAME RULE OR ISSUE PRACTICE NOTE MAKING IT CLEAR TO ALL CONCERNED THAT IN THE EVENT OF CHANGE OF ADDRESS THERE SHOULD BE AMENDME NT TO THE CAUSE TITLE OF THE MEMO OF APPEAL FOLLOWED BY AMENDMENT IN COLUMN NO.10 OF FORM 36 WITH FURTHER REITERATION THAT ANY CORRESPONDENCE IN THIS BEHALF SHALL NOT BE ENTERTAINED BY THE TRIBUNAL. IN PURSUANCE TO THIS DIRECTION OF THE HON'BLE BOMBAY HIG H COURT, THE TRIBUNAL AMENDED THE INCOME TAX M.P 95/2012 : - 6 - : APPELLATE TRIBUNAL RULES 1963 VIDE NOTIFICATION NO.F - AD(AT)/2012 DATED 7.2.2012 WHEREBY THE RULE 9A WAS INSERTED IN THE INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963 , WHICH READS AS UNDER: WHEN TO GIVE REVISED FORM NO. 36. 9A. (1) IN THE EVENT OF CHANGE IN THE ADDRESS OF THE PARTIES TO THE APPEAL AS PROVIDED IN COLUMN NOS. 10 & 11 OF FORM NO. 36, THE APPELLANT SHOULD FILE A REVISED FORM NO. 36 DULY FILLED UP GIVING THE NEW ADDRESS OF THE PARTY, DULY VERIFIED I N THE SAME MANNER AS REQUIRED BY RULE 47 OF THE 1NCOME TAX RULES, 1962. (2) THE REVISED FORM NO. 36 SHALL SPECIFY THE APPEAL NO. AS ORIGINALLY ASSIGNED OR, IN THE EVENT OF NON - AVAILABILITY OF SUCH NO. THE DATE OF FILING OF THE APPEAL SHALL BE MENTIONED I N THE COVERING LETTER. (3) NO COGNIZANCE OF CHANGE OF ADDRESS OF THE PARTIES SHALL BE TAKEN FOR ANY PURPOSE, UNLESS A REVISED FORM AS PER SUB - RULES (1) AND (2) IS FILED. (4) THE ADDRESS FURNISHED IN THE REVISED FORM NO. 36 SHALL BE DEEMED TO BE THE ADD RESS OF THE PARTIES FOR THE PURPOSE OF SERVICE OF ALL NOTICES/ORDERS. 11 . HE SUBMITTED THAT AS THE CHANGE OF ADDRESS WAS NOT INTIMATED TO THE TRIBUNAL BY FILING REVISED FORM NO.36, THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR ANY RECTIFI CATION U/S 254(2) OF THE ACT. 12 . HE ALSO RELIED ON THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF ANUPAM SUSHIL GARG VS CIT, [2004] 265 ITR 474(ALL) AND SUBMITTED THAT THE HON'BLE ALLAHABAD HIGH COURT HAS HELD THAT WHERE THE APPELLANT HAD N OT FURNISHED HIS FRESH ADDRESS TO THE M.P 95/2012 : - 7 - : TRIBUNAL AND IN ABSENCE OF THAT THERE WAS NO OCCASION FOR THE TRIBUNAL TO SERVE HIM A NOTICE AT THE CHANGED ADDRESS. THE APPELLANT COULD NOT BE PERMITTED TO TAKE THE BENEFIT OF HIS OWN MISTAKE OF NOT FURNISHING THE FRESH ADDRESS. UNDER THE GARB OF RECTIFICATION HE COULD NOT SEEK REVIEW WHICH WAS NOT PROVIDED UNDER THE STATUTORY PROVISIONS. 13 . HE ALSO RELIED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS VICHTRA CONSTRUCTION(P) LTD., [2004] 269 I TR 371(DEL) WHERE IT WAS HELD THAT THE WORDS USED IN SECTION 254(2) ARE SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE . CLEARLY, IF THERE IS A MISTAKE, THEN AN AMENDMENT IS REQUIRED TO BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRE CT THAT PARTICULAR MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN RECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THIS WOULD AMOUNT TO REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE INCOME - TAX ACT. THE POWER TO RECTI FY A MISTAKE UNDER SECTION 254(2) CANNOT BE USED FOR RE CALLING THE ENTIRE ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDER THE INCOME - TAX ACT. THUS, WHAT IT COULD NOT DO DIRECTLY, COULD NOT BE ALLOWED TO BE DONE INDIRECTLY. 14 . HE ALSO RELIED ON THE DECISION OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS CHHABRA GINNING UDHYOG [2008] 303 M.P 95/2012 : - 8 - : ITR 182 (MP) WHERE IT WAS HELD THAT THE POWER TO RECTIFY THE MISTAKE IN THE ORDER IS CONFINED TO ONLY THOSE ERRORS WHICH ARE APPARENT FROM THE RECORD OF THE CASE. THE POWERS UNDER SECTION 254(2) CANNOT BE EXERCISED AS A REVIEW COURT OR AS AN APPELLATE COURT SO AS TO VIRTUALLY CHANGE THE EARLIER DECISION UNLESS A GRAVE ERROR ON THE FACTS OR AT LAW FROM THE RECORDS IS APPARENT. A WELL REASONED DE CISION WHICH HAD GONE IN FAVOUR OF THE REVENUE IN A REGULARLY CONSTITUTED APPEAL COULD NOT BE UPTURNED BY RECOURSE TO THE PROVISIONS OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961. THE TRIBUNAL WHILE HEARING AN APPLICATION MADE BY THE ASSESSEE UNDER SECTI ON 254(2) DID NOT CONFORM TO THE REQUIREMENT OF SECTION 254(2) READ WITH RULE 34A OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 AND IT SHOULD HAVE BEEN DISMISSED. 15 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE ORDER OF THE TRIBUNAL AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT IT IS NOT IN DISPUTE THAT THE ORDER OF THE TRIBUNAL DATED 25.5.2012 IN THE CASE OF THE ASSESSEE IN I.T.A.NO.410/MDS/2006 FOR ASSESSMENT YEAR 1999 - 2000 WAS PASSED EX - PARTE QUA THE ASSESSEE. FURTHER IT IS OBS ERVED THAT THE TRIBUNAL HAS RECORDED THE FACT THAT NO NOTICE OF HEARING COULD BE SERVED ON THE ASSESSEE AND HEARING NOTICE SENT TO THE ASSESSEE WAS RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARK THAT THE ASSESSEE HAS LEFT THAT ADDRESS. THE AS SESSEE EXPLAINED BEFORE US THAT THE ADDRESS GIVEN IN THE RELEVANT MEMO OF M.P 95/2012 : - 9 - : APPEAL WAS OF HIS CHARTERED ACCOUNTANT S FIRM, WHO IN THE MEANWHILE, CHANGED ITS ADDRESS. THE ASSESSEE SUBMITTED THAT NON - APPEARANCE OF THE ASSESSEE ON THE APPOINTED DATE OF HEARI NG WAS NOT WILLFUL BUT WAS DUE TO THE ABOVE CIRCUMSTANCES. THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS P.V.KUMAR(SUPRA) WHEREIN IT WAS HELD AS UNDER: IT APPEARS THAT THE TRIBUNAL RENDERED TH E DECISION IN THE ABSENCE OF THE ASSESSEE WITHOUT EFFECTIVE SERVICE. THE NOTICE WHICH WAS SENT HAS BEEN RECEIVED WITH THE POSTAL REMARK 'LEFT'. THIS INDICATES THAT THE ASSESSEE WAS NOT SERVED WITH THE NOTICE. A MATTER CAN BE DECIDED IN THE ABSENCE OF A PAR TY, PROVIDED, THE PARTY HAS BEEN SERVED AND THEREAFTER THE PARTY DOES NOT REMAIN PRESENT BEFORE THE COURT OR TRIBUNAL. BUT WHEN THE NOTICE NOTIFYING THE DATE OF HEARING HAS NOT BEEN SERVED ON THE ASSESSEE, THERE IS NO QUESTION OF DECIDING THE MATTER EX PA RTE. THE TRIBUNAL OUGHT TO HAVE WAITED FOR PROPER SERVICE AND AFTER THE PROPER SERVICE ON THE PARTY, IT OUGHT TO HAVE DECIDED THE MATTER. 3. IN VIEW OF THIS, THE ENDS OF JUSTICE WOULD BE MET WITH IF THE IMPUGNED ORDER IS SET ASIDE AND THE TRIBUNAL IS DIR ECTED TO DECIDE THE APPEAL AFRESH AFTER ENSURING EFFECTIVE SERVICE ON THE ASSESSEE IN ACCORDANCE WITH LAW. ORDERED ACCORDINGLY. 16 . KEEPING IN VIEW THE ABOVE, IN OUR CONSIDERED OPINION, IT SHALL BE IN THE INTEREST OF JUSTICE, TO RECALL THE ORDER OF THE TRI BUNAL DATED 25.5.2012 IN I.T.A.NO. 410/MDS/2006 SO THAT THE ORDER CAN BE PASSED AFTER HEARING BOTH THE PARTIES. THE ASSESSEE IS ALSO ADVISED TO FILE FRESH MEMO OF APPEAL AS PER RULE 9A OF THE INCOME - TAX (APPELLATE TRIBUNAL)RULES, 1963, WITHIN SEVEN DAYS OF RECEIPT OF THIS ORDER. M.P 95/2012 : - 10 - : 17 . WE ARE ALSO ALIVE TO THE FACT THAT THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF ANUPAM SUSHIL GARG VS CIT (SUPRA) HAS HELD THAT WHERE THE APPELLANT HAD NOT FURNISHED HIS FRESH ADDRESS TO THE TRIBUNAL , THERE WAS NO OCCASION FOR THE TRIBUNAL TO SERVE HIM A NOTICE AT THE CHANGED ADDRESS. IN ABSENCE OF THE SAME, THE APPELLANT COULD NOT BE PERMITTED TO TAKE THE BENEFIT OF HIS OWN MISTAKE OF NOT FURNISHING THE FRESH ADDRESS. IT IS A SETTLED POSITION OF LAW BY THE HON'BLE SUPREME CO URT IN THE CASE OF CIT VS VEGETABLE PRODUCTS LTD [1973] 88 ITR 192(SC) THAT WHERE THERE ARE TWO DIFFERENT VIEW S OF THE HON'BLE HIGH COURTS, NONE OF WHICH IS A JURISDICTIONAL HIGH COURT, THE DECISION WHICH IS IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED. 18 . IN VIEW OF THE ABOVE, WE RECALL OUR ORDER DATED 25.5.2012 AND DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING IN USUAL COURSE. 19 . IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON TUESDAY, THE 28 TH OF AUGUST, 2012, AT CHENNAI. SD/ - SD/ - (VIKAS AWASTHY) JUDICIAL MEMBER ( N.S.SAINI ) ACCOUNTANT MEMBER DATED: 28 TH AUGUST , 2012 RD COPY TO: PETITIONER / RESPONDENT / CIT(A) /CIT/ DR