Sri Abdul Gaffar, Mysore V. ITO, Bangalore

MA 99/BANG/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4393 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-03-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-03-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 12-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: S VENKATESAN
• Keywords: Opportunity of being heard; Principle of natural justice; Deemed to accrue or arise in india; Reassessment proceedings
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.99/BANG/2009 (ARISING OUT OF ITA NO.1277/BANG/2008) ASSESSMENT YEAR : 1999-2000 SRI ABDUL GAFFAR, M/S. MODERN TRADING CORPORATION, NO.5, APMC YARD, BANDIPALYA, MYSORE. : APPELLANT VS. THE INCOME TAX OFFICER, WARD 1(3), BANGALORE. : RESPONDENT APPELLANT BY : SRI S. VENKATESAN RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS MISC. PETITION OF THE ASSESSEE IS IN CONSEQUE NCE OF THE ORDER OF THIS BENCH IN ITA NO.1277/BANG/2008 DATED: 20/2/200 9 FOR THE ASSESSMENT YEAR 1999-00. 2. THE ESSENCE OF THE GRIEVANCE OF THE ASSESSEE IN HIS MISC. PETITION, IN BRIEF, IS THAT THE HEARING OF THE APPEAL IN ITA NO.1277/08 WAS FIXED FOR 12.2.09 AND THE LD. A R VIDE HIS LETTER DATED: 11.2 .2009 SOUGHT FOR AN M.P. NO.99/BANG/09 PAGE 2 OF 11 ADJOURNMENT. HOWEVER, IT WAS SUBMITTED, THE SAID A PPEAL WAS DISPOSED OFF WITH NEITHER CONCEDING TO THE REQUEST FOR ADJOURNME NT NOR AFFORDING AN OPPORTUNITY OF BEING HEARD. THUS, THE ASSESSEE HAS COME UP WITH THE PRESENT MISC. PETITION WITH A PLEADING TO OFFER AN OPPORTUNITY TO PUT-FORTH HIS VIEWS AND TO PASS AN ORDER, ACCORDINGLY. 3. IN THE PRELIMINARY HEARING, AFTER DUE CONSIDERAT ION OF RIVAL SUBMISSIONS, THE MISC. PETITION WAS ADMITTED FOR RE GULAR HEARING. 4. THE BACK-GROUND OF THE ISSUE, BRIEFLY, IS THAT T HE ASSESSEE WAS A DEALER IN RICE. FOR THE AY UNDER DISPUTE, THE AO HAD ORIGINALLY MADE AN ADDITION OF RS.5.04 LAKHS U/S 68 OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD FAILED TO PRODUCE THE CREDITORS FOR VERIFICATIO N. ON APPEAL, THE CIT(A) HAD SUSTAINED THE ADDITION. ON A FURTHER APPEAL, T HE HONBLE TRIBUNAL VIDE ITS ORDER IN ITA NO.2079/04 DT: 15.9.06 CONCEDED T O THE ASSESSEES PLEA IF AN OPPORTUNITY WAS GIVEN, THE TRADE CREDITORS COULD BE PRODUCED BEFORE THE AO AND, ACCORDINGLY, REMITTED BACK THE ISSUE ON THE FILE OF AO FOR FRESH CONSIDERATION. 5. IN THE REASSESSMENT PROCEEDINGS, THE ASSESSEE HA D PRODUCED ONLY TWO TRADE CREDITORS AND AFTER DUE EXAMINATION OF TH E SAID TRADERS, THE AO WAS OF THE OPINION THAT BOTH OF THEM HAVE FAILED TO PROVE THE GENUINENESS OF TRANSACTIONS AS WELL THEIR WORTHINESS AND THAT E VEN AFTER AFFORDING SUFFICIENT OPPORTUNITIES, THE ASSESSEE HAD PERHAPS PLEADED HIS INABILITY TO PRODUCE THE OTHER ALLEGED TRADE CREDITORS AS PROMIS ED AND, THUS, THE AO RETAINED THE ADDITION OF RS.5.04 LAKHS AS MADE IN T HE ORIGINAL ASSESSMENT ORDER. M.P. NO.99/BANG/09 PAGE 3 OF 11 5.1. ON APPEAL, THE LD. CIT(A) WAS RATHER MAGNANIM OUS IN HIS APPROACH AND, ACCORDINGLY, DELETED THE ADDITION TO THE EXTEN T OF RS.1.26 LAKHS, HOWEVER, SUSTAINED THE ADDITION AT RS.3.78 LAKHS AS PER THE DETAILED REASONS SET-OUT IN HIS IMPUGNED ORDER. 6. AGGRIEVED, THE ASSESSEE APPROACHED THE TRIBUNAL FOR RELIEF. THE HONBLE TRIBUNAL, AFTER DUE CONSIDERATION OF THE LD . A.RS REQUEST FOR ADJOURNMENT OF HEARING, WENT AHEAD TO DECIDE THE IS SUE ON MERITS ON THE BASIS OF MATERIALS AVAILABLE ON RECORDS ON A SOLE R EASONING THAT EARLIER ON A SPECIFIC REQUEST OF THE ASSESSEE, THE HONBLE TRIBU NAL HAD RESTORED THE ISSUE ON THE FILE OF THE AO AND SINCE THE ASSESSEE HAD A LREADY BEEN AFFORDED SUFFICIENT OPPORTUNITY AND ALSO THE ISSUE IN QUES TION WAS DELIBERATED UPON BEFORE THE TRIBUNAL IN AN EARLIER OCCASION AND, THU S, NO USUAL PURPOSE WOULD BE SERVED IN EXTENDING FOR FURTHER OPPORTUNITY. THE HONBLE TRIBUNAL IN ITS ORDER DATED: 20.2.2009, AFTER GIVING DUE WEIGHT-AGE TO THE WRITTEN SUBMISSION OF THE ASSESSEE AS WELL AS THE ARGUMENT OF THE LD. DR WHO WAS PRESENT DURING THE HEARING, HAD OBSERVED THUS 3.6..UNFORTUNATELY, THE ASSESSEE HAS NOW COME UP WITH A THEORY THAT HE COULD NOT ABLE TO PRODUCE THE REMAINING TRADE CREDITORS AS THEY WERE NOT AVAILABL E ETC. THE ASSESSEE CANNOT SHY AWAY FROM HIS RESPONSIBILIT Y OF PROVING THE GENUINENESS OF SUCH CREDITS. AS RIGHTL Y POINTED OUT BY THE LD. AO, THE ONUS OF PROVING THE GENUINEN ESS OF SUCH CREDITS LIES SOLELY WITH THE ASSESSEE WHO IN T HIS CASE HAS MISERABLY FAILED TO DISCHARGE HIS LIABILITY OF PROVING THE GENUINENESS OF TRADE CREDITORS. IN A SITUATION LIK E THIS, WE HAVE BEEN LEFT WITH NO OTHER ALTERNATIVE EXCEPT TO CONFIRM THE FINDING OF THE LD. CIT (A). M.P. NO.99/BANG/09 PAGE 4 OF 11 7. DURING THE COURSE OF PRESENT HEARING, THE LD. AR HAD VEHEMENTLY ARGUED THAT NO SUFFICIENT AND PROPER OPPORTUNITY WA S EXTENDED TO THE ASSESSEE; THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, TH E AR COULD NOT PRESENT HIMSELF TO PUT-FORTH HIS POINT OF VIEW AT THE TIME OF HEARING SCHEDULED FOR 12.2.2009; THAT THE HONBLE TRIBUNAL WOULD HAVE, IN THE INTEREST OF NATURAL JUSTICE, ACCEDED TO A SHORT ADJOURNMENT AS SOUGHT F OR, IN STEAD, DECIDED THE ISSUE WHEREBY DEPRIVING THE ASSESSEE TO HAVE HIS SA Y ON THE ISSUE. TO DRIVE HOME HIS POINT, THE LD. A R HAD PLACED A STR ONG RELIANCE ON THE FOLLOWING CASE LAWS: (I) S.HASTIMAL V. CIT, MADRAS (1963) XLIX ITR 273 (MAD) ; (II) CIT V. PANCHAM DASS JAIN (2006) 205 CTR (ALL) 444; (III) CIT V. SMT.SITA DEVI JUNEJA (2010) 187 TAXMAN 96 (P UNJ. & HAR.) (IV) CIT V. JAIPUR JEWELLERS (EXPORTS) (2010) 187 TAXMAN 169 (DEL) 7.1. ON HER PART, THE LD. D R CAME UP WITH A SPIRITED ARGUMENT THAT THE ASSESSEE HAD BEEN GIVEN SUFFICIENT OPPORTUNITIE S TO HAVE HIS SAY, IN STEAD OF GRABBING OF THOSE OPPORTUNITIES, HE HAS BE EN DRAGGING ON THE ISSUE WITH ONE PRETEXT OR ANOTHER AND, THUS, HE SHO ULD HAVE NO GRIEVANCE TO PUT IT ACROSS A PLEA THAT HE HAS BEEN DEPRIVED OF P ROVIDING OF AN OPPORTUNITY OF BEING HEARD. AS A MATTER OF FACT, THE LD. D R S UBMITTED, THE HONBLE TRIBUNAL WAS PLEASED, NOT ONCE, BUT, TWICE TO TAKE A LENIENT VIEW, BY AFFORDING REASONABLE OPPORTUNITY TO PROVE THE GENUI NENESS OF THE TRANSACTION AS WELL AS THE CREDIT WORTHINESS OF THE ALLEGED TRADE CREDITORS. IN STEAD OF CLEARING THE AIR OF SUSPICION, THE ASSE SSEE HAS BEEN DILLYDALLYING WITH THE ISSUE ON ONE PRETEXT OR THE OTHER. IT WAS , THEREFORE, PLEADED THAT THE EARLIER ORDER OF THE HONBLE TRIBUNAL REQUIRES NO INTERFERENCE AND, THUS, M.P. NO.99/BANG/09 PAGE 5 OF 11 THE MISC. PETITION DESERVES TO BE REJECTED. RELIAN CE WAS PLACED ON THE FOLLOWING CASE LAWS: (I) V.I.S.P (P) LTD. V. CIT & ANR. (2004) 265 ITR 202 ( MP); (II) UPLAKSH METAL INDUSTRIES V. CIT (2009) 177 TAXMAN 2 98 (P&H); & (III) CIT & ANR. V. MCDOWELL AND COMPANY LTD. (2009) 310 ITR 215 (KAR) 8. WE HAVE DULY CONSIDERED THE RIVAL SUBMIS SIONS, PERUSED THE RELEVANT RECORDS AND THE JUDICIAL PRONOUNCEMENTS OF VARIOUS HONBLE COURTS ON WHICH EITHER PARTY HAVE PLACED THEIR SELF-RELIAN CE. 8.1. AT THE OUT-SET WE WOULD LIKE TO POINT O UT THAT ON A SPECIFIC SUBMISSION OF THE LD A R, THE HONBLE TRIBUNAL, IN ITS ORIGINAL DECISION DATED: 15.9.2006 (IN ITA NO.2079/B/04) HAD OBSERVED THAT 6. AT THE TIME OF HEARING THE MATTER BEFORE THE TR IBUNAL, MR.NULVI, AR SUBMITTED THAT IF AN OPPORTUNITY IS GIVEN, THE TRADE CREDITORS CAN BE PRODUCED BEFORE THE AO. THE ASSESSEE HAD SIGNED THE ORDER SHEET WITHOUT KNOWING THE CONSEQUENCES. THE ASSESSEE ALSO FURNISHED A LETTER WHERE IT HAS BEEN STATED THAT IN CASE ONE OPPORTUNITY IS ALLOWED, THE TRADE CREDITORS CAN BE PRODUCED BEFORE THE AO. IN THE INTEREST OF JUSTICE, WE ACCEPT THE REQUEST MADE BY THE ASSESSEE AND RESTORE THE MATTER TO THE AO FOR FRESH CONSIDERATION.. 8.1.1. CONSEQUENT TO THE DIRECTION OF T HE HONBLE TRIBUNAL, THE ASSESSEE HAD PRODUCED ONLY TWO TRADE CREDITORS WHOS E CREDIT WORTHINESS AND THE GENUINENESS OF THE TRANSACTIONS HAVE BEEN SUMMARILY REJECTED BY THE AO FOR THE REASONS SET-OUT IN HER IMPUGNED ORDE R. IN THE REMAINING ALLEGED TRADE CREDITORS, AS PER THE ASSESSMENT ORDE R, IN SPITE OF SUFFICIENT OPPORTUNITIES PROVIDED BY THE AO, THE ASSESSEE CAME UP WITH A LETTER M.P. NO.99/BANG/09 PAGE 6 OF 11 STATING THAT HE WAS NOT IN A POSITION TO PRODUCE THEM AS SOME OF THEM ARE NOT TRACEABLE, SOME HAVE LET THE PLACE AND TWO OF THEM ARE VERY OLD AND ARE SUFFERING FROM CHRONICLE DISEASES.[SOURCE: P 3 OF ASST. ORDER DT.28.12.07]. 8.1.2. ON APPEAL, THE ASSESSEE PLEADED BEFORE THE LD. CIT (A) THAT [ON PAGE 3] 2).THE APPELLANT IS NOT ABLE PROD UCE OTHER TRADE CREDITORS BECAUSE OF SO MANY REASONS. SINCE IT WAS EIGHT YEARS OLD MATTER EITHER THEY ARE NOT AVAILABLE OR THEY ARE NOT REMEM BERING TRANSACTION AND RELUCTANT TO COME TO THE IT OFFICE. ONLY ON THE GR OUND OF NOT PRODUCTION TRADE CREDITORS, IT CONBE (SIC) (CANNOT BE) ASSUME D AS NON-GENUINE. 8.1.3. AFTER DUE CONSIDERAT ION OF THE ASSESSEES CONTENTION, THE LD. CIT (A) OBSERVED THUS (ON PAGE 4) AS REGARDS THE BALANCE CREDITORS, IT IS NOTED THAT IT WAS THE APPELLANT WHO HAD REQUESTED FOR OPPORTUNITY BEFORE THE ITAT TO PRODUCE THE TRADE CREDITORS AND IT WAS FOR THIS REASON ONLY THA T THE ISSUE WAS RESTORED AFRESH TO THE AO. THE DECISION CITED BY THE AR WIL L NOT APPLY AS THE APPELLANT HAS NOT GIVEN THE PRESENT WHEREABOUTS OF THESE CREDITORS AND IS HIMSELF ADMITTING THAT MANY OF THEM ARE NOT AVAILAB LE OR NOT REMEMBERING THE TRANSACTION. THE FAILURE OF THE APPELLANT NOW TO PRODUCE THE TRADE CREDITORS CAN ONLY LEAD TO AN ADVERSE INFERENCE THA T THESE CREDITS ARE NOT GENUINE 8.1.4. THE SEQUENCE OF EVENTS AS BROUGHT OUT I N THE FORE-GOING PARAGRAPHS EXPLICITLY PROVE BEYOND ANY IOTA OF DOU BT THAT THE ASSESSEE HAS BEEN GIVEN AMPLE OPPORTUNITIES TO COME UP CLEAN, HO WEVER, THE ASSESSEE, HAS BEEN - TO PUT IT GENTLY PAMPERED WITH A THEOR Y THAT HE HAS BEEN GIVEN NO SUFFICIENT OPPORTUNITY TO PROVE THE GENUINENESS OF HIS TRADE CREDITORS. M.P. NO.99/BANG/09 PAGE 7 OF 11 8.1.5. LET US NOW ANALYZE THE LEGAL PRONOU NCEMENTS ON WHICH EITHER PARTY HAVING BEEN BANKING ON. CASE LAWS ON WHICH THE ASSESSEE HAS BEEN HANKERING ON HIS STANCE: (I) S.HASTIMAL V. CIT, MADRAS XLIX ITR 273 : THE ISSUE IN BRIEF THAT THE ASSESSEE EXPLAINED THAT HE HAD BORROWED MO NEY FROM V AT BIKANER AND OBTAINED THE MONEY BY A BANK DRAFT I N HIS FAVOUR ON THE PUNJAB NATIONAL BANK, CASHED THE DRAFT AND D EPOSITED IN THE SAME BANK AND ON THE STRENGTH OF THE DEPOSIT RE CEIPT HAD BORROWED FROM THE BANK AND PAID IT TO BE FIRM. THI S EXPLANATION WAS SUPPORTED BY DOCUMENTARY EVIDENCE BUT WAS REJEC TED BY THE TRIBUNAL ON THE GROUND THAT THE DRAFT HAD BEEN SENT BY G AND NOT V AND THAT IT HAD NOT BEEN POSSIBLE TO CONTACT EITH ER G OR V TO ASCERTAIN WHETHER G WAS VS AGENT AS ALLEGED BY THE ASSESSEE. THE HONBLE COURT HELD THAT THE ASSESSEE HAD BEEN A BLE TO POINT OUT A SOURCE FOR THE SUM AND HIS EXPLANATION COULD NOT BE REJECTED BY THE MERE DISABILITY OF THE DEPARTMENT T O FIND OUT WHETHER G WAS VS AGENT. WITH REGARDS, WE WOULD LIKE TO POINT OUT THAT IN TH E ABOVE CASE THE EXPLANATION WAS SUPPORTED BY DOCUMENTARY EVIDENCE W HICH WAS REJECTED BY THE TRIBUNAL WHEREAS IN THE CASE ON HAN D, THE ASSESSEE HAD NEITHER PRODUCED ANY DOCUMENTARY EVIDENCE NOR THE A LLEGED TRADE CREDITORS TO PROVE HIS METTLE. THUS, THE ASSESSEE CANNOT TAKE SANCTUARY ON THE ABOVE CASE LAW TO GO SCOT-FREE. (II) CIT V. PANCHAM DASS JAIN (2006) 205 CTR (ALL) 444 : THE HONBLE HIGH COURT OF ALLAHABAD HAD RULED THAT THE PROVISIONS OF S.68 ARE NOT ATTRACTED TO AMOUNTS REPRESENTING PURC HASES MADE ON CREDIT. THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING OF FACT BASED ON APPRECIATION OF MATERIALS AND EVIDENCE ON RECORD THAT THE AO HAS ACCEPTED THE PURCHASES, SALES AS ALSO TH E TRADING M.P. NO.99/BANG/09 PAGE 8 OF 11 RESULT DISCLOSED BY THE ASSESSEE. IT HAS ALSO RECO RDED A FINDING THAT THE TWO AMOUNTS IN QUESTION REPRESENTED THE PU RCHASES MADE BY THE ASSESSEE ON CREDIT. THE ISSUE BEFORE THE HONBLE COURT WAS ENTIRELY ON THE DIFFERENT FOOTING WHICH, IN OUR CONSIDERED VIEW, HAS NO RELEVANCE TO THE FACTS OF THE CASE ON HAND. (III) IN THE CASE OF CIT V. SMT.SITA DEVI JUNEJA RE FERRED THE SUBJECT MATTER BEFORE THE HONBLE H.C. OF P & H WAS THAT TH E AO HAD MADE THE ADDITION ON ACCOUNT OF OUTSTANDING SUNDRY CREDIT BALANCES WHILE HOLDING THAT THE LIABILITY IN RESPEC T OF THESE CREDITORS HAD CEASED TO EXIST AND HAD BECOME LIABLE TO THE TREATED AS DEEMED INCOME UNDER EXPLN. I TO S.41(1) OF THE ACT, WHEREAS THE ISSUE ON HAND IS ENTIRELY ON DIFFERENT TRACK, AND, HENCE, THE ABOVE CASE LAW CANNOT, IN OUR FIRM VIEW, COME TO THE RESCUE OF THE ASSESSEE. (IV) SIMILARLY, THE ISSUE BEFORE THE HONBLE HIGH C OURT OF DELHI IN THE CASE OF CIT V. JAIPUR JEWELLERS (EXPORTS) REFERRED SUPRA WAS REMISSION OR CESSATION OF TRADING LIABILITY U/S 41( 1) OF THE ACT. WHAT IS RATHER INTRIGUING OUR MIND IS HOW THE ABOVE REFERRED CASE WILL BE OF ANY HELP TO THE FACTS OF THE ISSUE ON HA ND? 8.1.6. THE FOLLOWING CASE LAWS ON WHICH TH E REVENUE HAD PONDERED WITH IN ITS FAVOUR: (I) THE HONBLE HIGH COURT IN THE CASE OF V.I.S.P (P) LTD. V. CIT & ANR. (2004) 265 ITR 202, HAS RULED THAT SINCE THE AO FOU ND THE WHOLE TRANSACTION OF ALLEGED PURCHASE BY THE ASSESSEE TO BE BOGUS AND THE ENTRY MADE IN THE TRADE ACCOUNT AS A LIABILITY WAS ONLY A PAPER ENTRY, THE CONTENTION THAT S. 68 CAN BE INVOKED ONLY WHEN THE BOOKS OF ACCOUNT OF THE ASSESSEE SHOW CASH ENTRY AND NOT OTH ERWISE CANNOT BE ACCEPTED. IF THE LIABILITY SHOWN IN AN ACCOUNT IS FOUND TO BE BOGUS AND M.P. NO.99/BANG/09 PAGE 9 OF 11 THERE IS NO PLAUSIBLE AND REASONABLE EXPLANATION OF THE ASSESSEE, THE AMOUNT CAN CERTAINLY BE ADDED TOWARDS THE INCOME OF THE ASSESSEE. (II) SIMILARLY, IN THE CASE OF UPLAKSH METAL INDUSTRIES V. CIT (2009) 177 TAXMAN 298, THE HONBLE P&H HIGH COURT WAS VERY EMPHATIC IN ITS PERCEPTION IN RULING THAT THE ASSESSEE BEING UNABLE TO GIVE THE ADDRESSES OF THE ALLEGED TRADE CREDITOR S COULD NOT BE ACCEPTED AS GENUINE AND THUS ONCE THE ENTRY OF LIAB ILITY WAS NOT ACCEPTED, TREATING THE AMOUNT AS INCOME OF THE ASSE SSEE WAS CONSEQUENTIAL. (III) CHIEFLY, THE HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT & ANR. V. MCDOWELL AND COMPANY LTD. (2009) 310 ITR 215 HAS OUTLINED THE SCOPE OF THE POWERS OF THE TRIBUNAL T HAT (I) IT CAN RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, (II) THE TRIBUNAL HAS, HOWEVER, NO POWER TO RECALL AND REVIEW ITS EAR LIER ORDER UNDER SECTION 254(2) OF THE ACT. 8.1.7. TAKING CUE FROM THE FACTS OF THE CASE, R IVAL SUBMISSIONS AND ALSO THE JUDICIAL PRONOUNCEMENTS AS ANALYZED IN THE FORE -GOING PARAGRAPHS, WE ARE OF THE UNANIMOUS VIEW THAT THE MISC. PETITION D ESERVES TO BE DISMISSED FOR THE FOLLOWING REASONS: (I) SUFFICIENT AND REASONABLE OPPORTUNITIES WERE PROVID ED TO THE ASSESSEE FACILITATING HIM TO PRODUCE THE ALLEGED TR ADE CREDITORS BEFORE THE AO AS VOUCHED BY THE LD. A R WHEN THE IS SUE WAS BEFORE THE HONBLE TRIBUNAL IN ITA NO.2079/04; (II) DURING THE COURSE OF REASSESSMENT PROCEEDINGS U/S 1 43(3) RWS 254 OF THE ACT, THE AO HAD GIVEN MORE THAN TWO OPPO RTUNITIES TO PRODUCE THE CREDITORS FOR EXAMINATION. IN STEAD, T HE ASSESSEE EXCUSED HIMSELF TO DO SO; M.P. NO.99/BANG/09 PAGE 10 OF 11 (III) DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE PL EADED IN THE STATEMENT OF FACTS THAT THE APPELLANT IS NOT ABLE PRODUCE OTHER TRADE CREDI TORS BECAUSE OF SO MANY REASONS. SINCE IT WAS EIGHT YEARS OLD MATT ER EITHER THEY ARE NOT AVAILABLE OR THEY ARE NOT REMEMBERING TRANS ACTION AND RELUCTANT TO COME TO THE IT OFFICE. ON THE GROUND O F NOT PRODUCTION TRADE CREDITORS, IT CONBE (SIC) (CANNOT BE) ASSUME D AS NON- GENUINE. (IV) WHEN THE APPEAL WAS SCHEDULED FOR HEARING ON 12.2.2 009 BEFORE THE HONBLE TRIBUNAL, THE LD. A.RS OFFICE ON 11.2. 09 CAME UP WITH AN ADJOURNMENT LETTER. HOWEVER, THE TRIBUNAL, ON PERUSAL OF THE BACK RECORDS, CAME TO A CONCLUSION THAT SINCE T HE ASSESSEE WAS AFFORDED WITH SUFFICIENT OPPORTUNITIES AND THAT THE ISSUE HAD ALREADY BEEN PRESENTED AND DELIBERATED UPON EARLIER , DECIDED TO PROCEED WITH THE HEARING ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. (V) EVEN DURING THE COURSE OF MISC. PETITION PROCEEDING S, NO TANGIBLE SUBMISSIONS WERE MADE TO JUSTIFY THE ASSESSEES CLA IM THAT HE HAS BEEN DEPRIVED OF OPPORTUNITY AND SO ON SO FORTH; (VI) RELIANCE PLACED ON THE CASE LAWS AS DISCUSSED SUPRA CANNOT IN ANYWAY COME TO THE RESCUE OF THE ASSESSEE; (VII) THE HONBLE TRIBUNAL, AFTER DUE CONSIDERATION OF TH E MATERIALS AVAILABLE ON RECORD, DISMISSED THE ASSESSEES APPEA L WHICH DOESNT SUFFER FROM ANY INFIRMITY OR A MISTAKE CRE PT IN WHICH REQUIRES RECTIFICATION; (VIII) AS PER THE RULING OF THE HONBLE JURISDICTIONAL HIG H COURT CITED SUPRA, THE TRIBUNAL HAS NOT BEEN VESTED WITH THE PO WERS U/S 254(2) OF THE ACT TO RECALL AND REVIEW ITS EARLIER ORDER. 9. IN THE RESULT, THE MISC. PETITION OF THE ASSESSE E IS DISMISSED. M.P. NO.99/BANG/09 PAGE 11 OF 11 PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY MARCH, 2010. SD/- SD/- ( GEORGE GEORGE K. ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 31 ST MARCH, 2010. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.