RAKHI A SAWANT, MUMBAI v. ITO 11(1)(3), MUMBAI

ITA 2965/MUM/2013 | 2006-2007
Pronouncement Date: 28-09-2016 | Result: Dismissed

Appeal Details

RSA Number 296519914 RSA 2013
Assessee PAN AUMPS5377C
Bench Mumbai
Appeal Number ITA 2965/MUM/2013
Duration Of Justice 3 year(s) 5 month(s) 10 day(s)
Appellant RAKHI A SAWANT, MUMBAI
Respondent ITO 11(1)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 28-09-2016
Date Of Final Hearing 27-06-2016
Next Hearing Date 27-06-2016
Assessment Year 2006-2007
Appeal Filed On 17-04-2013
Judgment Text
BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI SANJAY GARG SANJAY GARG SANJAY GARG SANJAY GARG JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER AND AND AND AND SHRI SHRI SHRI SHRI ASHWANI TANEJA ASHWANI TANEJA ASHWANI TANEJA ASHWANI TANEJA ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ./I.T.A. NO.2965 & 2966/MUM/2013 ( / / / / ASSESSMENT YEAR : 2006-07) MS.RAKHI SAWANT M/S CHANDRAVIJAY SHAH AND CO. CHARTERED ACCOUNTANT 401 RAINBOW CHAMBERS S V ROAD NR. MTNL KANDIVILI (W) MUMBAI-400067 / VS. INCOME TAX OFFICER 11(1)(3) ROOM NO. 438 4 FLOOR AAYAKAR BHAVAN M K ROAD MUMBAI-400020. ( / // / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. : AUMPS5377C / APPELLANT BY NONE /RESPONDENT BY SHRI A K SRIVASTAVA / DATE OF HEARING : 28.09.2016 /DATE OF PRONOUNCEMENT : 28.09.2016 / O R D E R / O R D E R / O R D E R / O R D E R PER SANJAY GARG JUDICIAL MEMBER : THE ABOVE CAPTIONED APPEALS HAVE BEEN PREFERRED B Y THE ASSESSEE HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 . FIRST WE TAKE UP ASSESSEES APPEAL BEARING ITA N O.2966/MUM/2013. ITA NO.2965 & 2966/MUM/2013 2 ITA NO.2966/MUM/2013 3. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX AGITATING THE REVISIO N OF THE ASSESSMENT ORDER DATED 24.12.2008 BY INVOKING THE PROVISIONS O F SECTION 263 OF THE INCOME TAX ACT 1961. NONE HAS COME PRESENT ON BEH ALF OF THE ASSESSEE. THE APPEAL IS TIME BARRED BY 704 DAYS. A PERUSAL O F THE ORDER REVEALS THAT THIS APPEAL WAS FILED BY THE ASSESSEE ON 17.4.2013 AND THE CASE WAS POSTED FOR HEARING ON 22.7.2014. HOWEVER ON THE SA ID DATE BENCH DID NOT FUNCTION.THE CASE THEN POSTED ON 11.11.2014 AND THE N FOR 16.2.2015. HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE AN D IT WAS ORDERED TO ISSUE NOTICE TO THE ASSESSEE BY A REGISTERED POST . THE CASE WAS FIXED FOR HEARING ON 18.3.2015 AGAIN ON 18.3.2015 NO ONE APP EARED ON BEHALF OF THE ASSESSEE AND THE CASE WAS ADJOURNED TO 2.7.2015 . THEREAFTER THE CASE WAS FIXED FOR 29.10.2015 ON WHICH DATE THE COUNSEL FOR THE ASSESSEE APPEARED AND REQUESTED FOR ADJOURNMENT VIDE LETTER DATED 26.10.2015. HOWEVER ON THE NEXT DATE OF HEARING I.E. ON 11.2.2 016 AGAIN NO ONE APPEARED ON BEHALF OF THE ASSESSEE. IT WAS AGAIN DIRECTED TO ISSUE NOTICE BY RPAD. ON THE NEXT DATE OF HEARING I.E. 9.6.2 016 CASE COULD NOT BE HEARD FOR WANT OF TIME AND BOTH THE PARTIES WERE IN FORMED REGARDING THE NEXT DATE OF HEARING I.E. 14.6.2016. HOWEVER AGAI N ON 14.6.2016 NOBODY APPEARED FOR THE ASSESSEE. IT WAS NOTICED BY THE BE NCH SINCE THE APPEAL WAS PENDING SINCE 17.4.2013 HENCE LAST OPPORTUNIT Y WAS GRANTED TO THE ASSESSEE AND THE CASE WAS FIXED FOR HEARING ON 27.6 .2016. IT WAS ALSO ITA NO.2965 & 2966/MUM/2013 3 DIRECTED TO ISSUE NOTICE BY RPAD AND ALSO THROUGH T ELEPHONE TO THE ASSESSEES COUNSEL TO INFORM ABOUT THE NEXT DATE O F HEARING. THE REGISTRY ACCORDINGLY ISSUED NOTICE BY RPAD AND A NOTING HAS BEEN MADE IN THE ORDER-SHEET THAT THE COUNSEL OF THE ASSESSEE WAS IN FORMED ON TELEPHONE ABOUT THE NEXT DATE OF HEARING. HOWEVER ON THE NE XT DATE OF HEARING I.E. 26.6.2016 THE MATTER COULD NOT BE HEARD FOR WANT O F TIME AND BOTH THE PARTIES WERE INFORMED THE NEXT DATE OF HEARING I.E. 28.6.2016. ON 28.6.2016 THE COUNSEL OF THE ASSESSEE REQUESTED FO R ADJOURNMENT AND AT HIS REQUEST THE CASE WAS ADJOURNED TO THE NEXT DATE I.E.29.6.2016 ON 29.6.2016 THE CASE COULD NOT BE HEARD FOR WANT OF TIME AND BOTH THE PARTIES WERE INFORMED ABOUT THE NEXT DATE OF HEARIN G I.E. 28.9.2016. TODAY AGAIN NO ONE APPEARED BEFORE US ON BEHALF OF THE A SSESSEE. IT IS THE APPEAL OF THE ASSESSEE AND THE ASSESSEE IS SUPPOSED TO CAREFULLY PURSUE AND PROSECUTE IT. IT IS NOT THE DUTY OF THIS TRIBU NAL TO ISSUE NOTICE EACH AND EVERY TIME TO THE ASSESSEE TO COME AND APPEAR IN HE R OWN APPEALS WHEN THE NEXT DATE OF HEARING IS DULY INFORMED IN OPEN C OURT OR THROUGH NOTICE BOARD WHENEVER THE BENCH DID NOT FUNCTION. HOWEVER A PERUSAL OF THE ABOVE SEQUENCE OF DATES OF HEARING REVEALS THAT THE ASSESSEE/HER REPRESENTATIVE HAVE ALWAYS BEEN RELUCTANT TO ATTEND THE CASE AND ALL THE TIME THEY HAVE TO BE CALLED UPON EITHER BY NOTICE T HROUGH RPAD AND EVEN THROUGH TELEPHONE TO THE COUNSEL. WE DO NOT THINK IT FIT TO FURTHER ADJOURN THE MATTER AND HENCE PROCEED TO DECIDE THE MATTER E X-PARTE OF THE ASSESSEE. ITA NO.2965 & 2966/MUM/2013 4 4. AT THE OUTSET THE LD. DR HAS BROUGHT TO OUR NOT ICE THAT THE APPEAL IS BARRED BY 704 DAYS. AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN PLACED ON RECORD WHEREIN THE ASSESSEE HERSELF HAS ADMITTED THAT THE APPELLATE ORDER OF THE LD.CIT(A) WAS SERVED UPON HE R ON 15.3.2011 AND THAT THE LAST DATE FOR FILING THE APPEAL BEFORE THE TRIBUNAL WAS 15.5.2011. IT HAS FURTHER BEEN PLEADED THAT HER CHARTERED ACCOUN TANT SHRI RAJESH SALUJA WHO HAD REPRESENTED HER CASE IN THE PROCEEDI NGS BEFORE THE LOWER AUTHORITIES DID NOT CO-OPERATE WITH HER IN HANDLING THE APPEAL BEFORE THIS TRIBUNAL. THAT SHE THEREAFTER COLLECTED ALL THE RELEVANT PAPE RS AND HANDED OVER TO NEW REPRESENTATIVE. HER NEW REPRESENTATIVE AFTER GETTING THE ENTIRE PAPERS HAS FILED THE PRESENT APPEAL. 5. THE LD. DR ON THE OTHER HAND HAS RELIED UPON T HE FOLLOWING CASE LAWS AND HAS PLEADED THAT THE DELAY CANNOT BE CONDO NED UNLESS AND UNTIL THE CAUSE FOR CONDONATION OF DELAY IS EXPLAINED. A) (1994) 92 STC 165 167 (PUNJAB); B) DCM LTD V/S STATE OF TAMIL NADU (1995) 96 STC 26 3 264 (MADRAS); C) MADHU DADHA V/S ACIT (317 ITR 458) (MAD); D) UNION OF INDIA V/S TATA YODOGAWA LTD 1988 (38) E LT 739; AND E) J B ADVANI AND CO LTD V/S CIT (1969) 72 ITR 395 (SC). 6. FROM THE ABOVE PLEADINGS WE DO NOT FIND ANY PLA USIBLE REASONS TO JUSTIFY THE LONG DELAY OF 704 DAYS FOR FILING THE PRESENT APPEAL. EVEN THOUGH EARLIER CHARTERED ACCOUNTANT DID NOT CO-OPER ATE WITH HER YET SHE REQUIRED TO FILE APPEAL IN A REASONABLE TIME. THE DELAY OF FEW DAYS FOR NON CO-OPERATION OF THE AUTHORIZED REPRESENTATIVE/CA CA N BE UNDERSTOOD BUT ITA NO.2965 & 2966/MUM/2013 5 IT HAS NOT BEEN EXPLAINED AS TO WHAT PREVENTED THE ASSESSEE TO ENGAGE ANOTHER REPRESENTATIVE FOR A PERIOD OF ABOVE TWO YE ARS. EVEN THE EXPLANATION TENDERED BY THE ASSESSEE IS GENERAL AND VAGUE. THE ASSESSEE HAS FAILED TO EXPLAIN ANY JUSTIFIABLE REASONS FOR T HE DELAY OF 704 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. THEREFOR E WE DO NOT FIND ANY MERIT IN THE APPLICATION FOR CONDONATION OF DELAY AND THE SAME IS THEREFORE DISMISSED. ACCORDINGLY THIS APPEAL OF THE ASSESSE E IS DISMISSED BEING BARRED BY LIMITATION. 7. NOW COMING TO THE SECOND APPEAL OF THE ASSESSEE BEARING ITA NO.2965/MUM/2013. ITA NO.2965/MUM/2013 8. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A) DATED 11.2.2013 IN RELATION OF TH E ASSESSMENT PROCEEDINGS CARRIED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) - 3 MUMBAI ('CIT(A) ERRONEOUSLY CONFIRMED THE ADDITION OF RS.8 00 000 PAID BY THE APPELLANT TO SUPER CASSETTES INDUSTRIES LIMITED TOWARDS THE VIDEO PRODUCTION CHARGES WITHOUT VERIFYING AND ENQUIRING WHETHER IN VIEW OF THE EXPLANATION (I)(L) TO SECTI ON 194C OR 2ND PROVISO TO SECTION 194J OF THE ACT OR OTHERWISE TH E APPELLANT WHO IS AN INDIVIDUAL WAS AT ALL COVERED BY THE PROVISIONS OF SECTION 44AB OF THE ACT AND CONSEQUENTIALLY WHETHER THE TDS PROVISI ONS WERE AT ALL APPLICABLE TO HER IN THE CURRENT FINANCIAL YEAR 200 5-2006 (AY 2006- 2007) THE YEAR UNDER APPEAL. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE RE WAS TOTAL CONTRADICTION IN THE VIEWS OF THE CIT AND AO AS REG ARDS THE APPLICABILITY OF SPECIFIC TDS PROVISION TO RS.8 00 000 PAID BY THE APPELLANT TO SUPER CASSETTES INDUSTRIES LIMITED TOW ARDS THE VIDEO PRODUCTION CHARGES AND SO IS THE CASE WITH CJT(A) LEADING TO CONCLUDE THAT NONE OF THE TDS PROVISIONS EITHER SE CTION 194C OR ITA NO.2965 & 2966/MUM/2013 6 SECTION 194J WERE APPLICABLE TO THE SAID PAYMENT. IN THE ABSENCE OF CLARITY ABOUT WHICH SPECIFIC TDS PROVISION APPLI ES TO A TRANSACTION THE ADDITION IS UNCALLED FOR AND INVAL ID AB INITIO. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT IS A PROFESSIONAL AND WAS CONSISTENTLY FOLLOWING CASH AC COUNTING SYSTEM AND ERRONEOUSLY CONFIRMED THE ADDITION OF RS .8 00 000 PAID BY THE APPELLANT TO SUPER CASSETTES INDUSTRIES LIMI TED TOWARDS THE VIDEO PRODUCTION CHARGES. 4. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT PAID ENTIRE AMOUNT OF RS.8 00 000 TO SUPER CASSETTES IN DUSTRIES LIMITED TOWARDS THE VIDEO PRODUCTION CHARGES AND NO PAYMENT WHATSOEVER WAS MADE TO ANYONE ELSE INCLUDING TO THE PROPOSED D IRECTOR OF THE SAID VIDEO ALBUM MR SHAREEN MANTRY AND THERE WAS N O NEXUS BETWEEN PAYMENT AND NAME OF DIRECTOR. THE SAID COMP ANY HAD ALL THE RIGHTS INCLUDING SELECTION OF DIRECTOR OF THE SAID VIDEO ALBUM AS STATED IN ITS LETTER DATED 16.07.2005 AND THE APPEL LANT HAD NO CHOICE OF SELECTION IN THE MATTER WHATSOEVER. 5. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT HAS ESTABLISHED THE VERACITY OF PAYMENT OF RS.8 00 000 TO SUPER CASSETTES INDUSTRIES LIMITED TOWARDS THE VIDEO PROD UCTION CHARGES BY PRODUCING ALL RELEVANT SUPPORTING DOCUMENTS. 6. SINCE THE REVISION ORDER IS BASED ON SURMISES S USPICION AND GUESS WORK IT DID NOT RENDER THE ASSESSMENT ORDER UNDER SECTION 143(3) DATED 24.12.2008 ERRONEOUS AND PREJUDICIAL T O THE INTEREST OF THE REVENUE. 7. THE APPELLANT PRAYS TO YOUR HONOUR THAT THE ORDE R UNDER SECTION 263 BEING BAD IN LAW BE QUASHED VACATED AND CANCEL LED OR ALTERNATIVELY PRAYS TO GRANT SUCH RELIEF AS YOUR HO NOUR MAY DEEM FIT. 8. THE APPELLANT SUBMIT THAT EACH OF THE ABOVE GROU NDS OF THIS APPEAL MAY PLEASE BE CONSIDERED WITHOUT PREJUDICE TO ONE ANOTHER 9. AS NOTED ABOVE THE ASSESSEE FROM THE BEGINNING HAS BEEN RELUCTANT REGULARLY IN ATTENDING THE PROCEEDINGS BEFORE THIS TRIBUNAL IN VIEW OF OUR REASONS RECORDED ABOVE WHILE DECIDING T HE APPEAL OF THE ITA NO.2965 & 2966/MUM/2013 7 ASSESSEE BEARING ITA NO.2899/M/2013 WE PROCEED TO DECIDE THIS APPEAL ALSO EX-PARTE OF THE ASSESSEE AFTER HEARING THE LD. DR. 10. AS REVEALED FROM THE ABOVE GROUNDS OF APPEAL T HE ONLY ISSUE RAISED BY THE ASSESSEE THROUGH THE GROUNDS OF APPEAL IS RE LATING TO CONFIRMATION OF ADDITION OF RS. 8 00 000/- PAID BY THE ASSESSEE TO SUPER CASSETTE INDUSTRIES LIMITED. THE AO HAD DISALLOWED THE SAID EXPENDITURE ON ACCOUNT OF TWO COUNTS FIRSTLY THAT THE ASSESSEE D ID NOT DEDUCT TDS ON SUCH PAYMENT AND HENCE THE EXPENDITURE WAS NOT ALLO WABLE UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. SECON DLY THAT THE ASSESSEE HAS NOT ESTABLISHED THE GENUINENESS OF THE REQUIREMENT OF PAYMENT FOR THE PURPOSES OF BUSINESS /PROFESSION OF THE ASSESSEE. THE ASSESSEE THROUGH GROUNDS OF APPEAL HAS PLEADED THAT THE ASSESSEE IS AN INDIVIDUAL IS NOT AT ALL COVERED UNDER SECTION 44AB OF THE ACT AND IN V IEW OF CLAUSE (I)(1) TO THE EXPLANATION TO SECTION 194C AND ALSO IN THE LI GHT OF SECOND PROVISO TO SECTION 194J THE ASSESSEE WAS NOT LIABLE TO DEDUC T TDS EITHER UNDER SECTION 194C OR 194J AND HENCE NO DISALLOWANCE COU LD HAVE BEEN MADE U/S 40(A)(IA) OF THE ACT. IT HAS ALSO BEEN PLEADE D THAT THE PAYMENT WAS MADE TO SUPER CASSETTE INDUSTRIAL LTD TOWARDS VIDE O PRODUCTION CHARGES AND THAT THE ASSESSEE HAD NO CONTROL OVER THE COMPA NY INCLUDING THE SELECTION OF DIRECTOR. THE ASSESSEE THUS HAD PLEAD ED THAT THE PAYMENT WAS MADE TOWARDS VIDEO PRODUCTION CHARGES WHICH WAS RELATABLE TO HER BUSINESS OR PROFESSION. 11. WE HAVE HEARD THE LD.DR AND ALSO GONE THROUGH THE IMPUGNED ORDER. WE FIND THAT IN THE IMPUGNED ORDER THE LD. CIT(A) HAS NOT DISCUSSED ITA NO.2965 & 2966/MUM/2013 8 ABOUT THE NON APPLICABILITY OF THE PROVISIONS OF SE CTION 194C AND OR 194J AND HAS STRAIGHTWAY APPLIED THE PROVISIONS OF TDS U /S 40(A)(IA) OF THE ACT. EVEN REGARDING THE GENUINENESS/REQUIREMENT OF THE P AYMENTS FOR ASSESSEES PROFESSION THE ORDER OF LD.CIT(A) IS NO T A SPEAKING ONE. IN OUR VIEW THE ENTIRE MATTER IS REQUIRED TO BE LOOKED IN TO AFRESH BY THE LD. CIT(A). IN VIEW OF THIS THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPER ATE WITH THE LD.CIT(A) IN DISPOSING OF THE APPEAL EXPEDITIOUSLY. THE ASSES SEE IS ALSO DIRECTED TO FILE NECESSARY DOCUMENTARY EVIDENCE TO PROVE HER CA SE. IN VIEW OF THIS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. 12. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IN ITA NO.2965/M/2013 IS DISMISSED AND APPEAL NO.2966/M/20 13 IS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPT 2016 . 28 SEPT 2016 SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - ( (( (ASHWANI TANEJA ASHWANI TANEJA ASHWANI TANEJA ASHWANI TANEJA) ) ) ) ( (( (SANJAY GARG SANJAY GARG SANJAY GARG SANJAY GARG) ) ) ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 28 SEPT 2016 .../ SRL SR. PS ITA NO.2965 & 2966/MUM/2013 9 / COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO : :: : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. () / THE CIT(A)- CONCERNED 4. / CIT CONCERNED 5. ! / DR ITAT MUMBAI CONCERNED 6. '# / GUARD FILE. / // / BY ORDER (ASSTT. REGISTRAR) /ITAT MUMBAI