SATYAJEET MOVIES P. LTD, MUMBAI v. ITO 8(3)(1), MUMBAI

ITA 6300/MUM/2011 | 2005-2006
Pronouncement Date: 23-10-2013 | Result: Dismissed

Appeal Details

RSA Number 630019914 RSA 2011
Assessee PAN AAFCS3378R
Bench Mumbai
Appeal Number ITA 6300/MUM/2011
Duration Of Justice 2 year(s) 1 month(s) 11 day(s)
Appellant SATYAJEET MOVIES P. LTD, MUMBAI
Respondent ITO 8(3)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 23-10-2013
Date Of Final Hearing 20-08-2013
Next Hearing Date 20-08-2013
Assessment Year 2005-2006
Appeal Filed On 12-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN JUDICIAL MEMBER ITA NO. 6300/MUM/2011 ASSESSMENT YEAR: 2005-06 SATYAJEET MOVIES P. LTD. C/F K. K. LALKAKA & CO 507 CHURCHGATE CHAMBERS NEW MARINES LINES CHURCHGATE MUMBAI 400 020 PAN :AAFCS 3378 R VS. ITO 8(3)(1) AAYAKAR BHAWAN MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. LALKAKA RESPONDENT BY : SHRI SHISHIR SRIVASTAVA DATE OF HEARING : 20.08.2013 DATE OF PRONOUNCEMENT : 23.10.2013 O R D E R PER DR. S.T.M. PAVALAN JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A) -3 MUMBAI DATED 15.07.2011 FOR THE ASSESSMENT YEAR 20 05-06. 2. IN THIS APPEAL THE ASSESSEE HAS AGITATED THE AC TION OF THE LD.CIT(A) CONFIRMING THE ORDER PASSED BY THE AO U/S 144. THE RELEVANT FACTS ARE THAT THE ASSESSEE A COMPANY ENGAGED IN THE BUSINESS OF FILM MAKING HAD PROVIDED IN THE RETURN FLAT NO.002 BUILDING NO.-4 MHADA COMPLEX ANDHERI (W) MUMBAI 400053 AS ITS ADDRESS. WHEN THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY THE AO HAD SENT THE NOTICE TO THE ASSESSEE U/S 143(2) ON 26.10.2006 INTIMATING THE DATE OF HEARING ON 31.10.2006. SINCE THE NOTICE WAS RETURNED UNSERVED THE INSPECTORS OF THE INCOME TAX VISITED THE PREMISES OF THE ASSESSEE BUT HOWEVER FOUND THAT THE ASSESSEE HAD LEFT THE PR EMISES. AS THIS BEING THE LAST KNOWN ADDRESS OF THE ASSESSEE AND SINCE THE ASSESSEE HAS NOT INTIMATED ANYONE ABOUT THE CHANGE OF ADDRESS THE NOTICE U/S 143(2) DATED 30. 10.2006 WAS SERVED BY WAY OF AFFIXTURE ON THE MAIN DOOR OF THE SAID PREMISES ON 31.10.2006. THEREAFTER THE AO ITA NO. 6300/MUM/2011 SATYAJEET MOVIES P. LTD. ASSESSMENT YEAR: 2005-06 2 PROCEEDED TO COMPLETE THE ASSESSMENT EX-PARTE U/S 1 44 OF THE ACT RESULTING IN VARIOUS DISALLOWANCES/ADDITIONS. ON APPEAL THE LD.CIT(A) AMONG OTHER THINGS UPHELD THE VALIDITY OF THE ORDER PASSED U/S 144 AS THE AO FOLL OWED THE DUE PROCESS AND IT WAS ONLY THE ASSESSEE WHO DID NOT PROVIDE THE CORRECT ADDRES S. AGGRIEVED BY THE IMPUGNED DECISION THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 3. BEFORE US THE LD.AR OF THE ASSESSEE HAS STATED THAT THE NOTICE SERVER HAS NOT MADE ANY DUE DILIGENT SEARCH OF THE WHERE ABOUT OF THE ASSESSEE AND THE SERVICE OF NOTICE BY AFFIXTURE IS NOT IN ACCORDANCE WITH LAW. HENCE THE LD.CIT(A) OUGHT NOT TO HAVE CONFIRMED THE EX-PARTE ORDER PASSED BY THE AO U/S 1 44 AS A VALID ONE. ON THE OTHER HAND THE LD.DR HAS ARGUED THAT IT IS THE DUTY OF THE ASS ESSEE TO INFORM THE CORRECT ADDRESS AS AND WHEN THERE IS A CHANGE OF ADDRESS. HENCE THE SE RVICE OF NOTICE BY AFFIXTURE IN THE LAST ADDRESS KNOWN IS IN ACCORDANCE WITH LAW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IT IS THE CASE OF THE ASSESSEE THAT THE EX-PARTE ASSESSMENT ORDER PASSED UNDER SECTION 143 R.W.S. 144 IS BAD IN LAW SINCE NO VALID NOTICE HAS BEEN SERVED ON THE ASSESSEE IN ACCORDANCE WITH THE PROVISION OF LAW AND IT IS THE CASE OF THE REVENUE THAT THE DUE PROCESS HAS BEEN FOLLOWED BY AFFIXTURE OF THE NOTICE ON THE LAST ADDRESS PROV IDED IN THE RETURN OF INCOME. IT IS PERTINENT TO MENTION THAT IN THE SCRUTINY ASSESSMEN T PROCEEDINGS THE AO HAS SENT NOTICES THROUGH RPAD ON THE ADDRESS PROVIDED IN THE RETURN OF INCOME BY THE ASSESSEE AND ONLY WHEN THE SAME IS RETURNED WITH THE REMARK LEFT/UNC LAIMED THE AO DIRECTED THE INSPECTORS/NOTICE SERVERS TO VISIT THE PREMISES ON 31.10.2006 TO SERVE THE NOTICE PERSONALLY. ON ENQUIRY AT THE SAID PREMISES THE IN SPECTORS FOUND THAT THE PREMISES HAS BEEN OCCUPIED WITH SOME OTHER TENANT AND LEFT WITH NO OPTION AFFIXED THE NOTICE ON THE MAIN DOOR OF THE SAID PREMISES ON 31.10.2006. THIS INDICATES THAT THE DEPARTMENT HAS TAKEN DUE DILIGENCE TO FIND THE ADDRESS OF THE ASSE SSEE. ALSO IN THE APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A) THE ASSESSEE HAS BEEN PROVIDE D WITH REASONABLE OPPORTUNITY BY WAY OF REFERRING THE MATTER TO THE AO. ASSUMING THAT BO TH THE ASSESSEE AND THE DEPARTMENT ARE AT EQUAL DEFAULT IN THE SENSE THAT THE ASSESSEE HAS NOT PROVIDED THE DETAILS AS TO CHANGE OF ADDRESS AND THE DEPARTMENT HAS NOT MADE D UE DILIGENCE TO FIND OUT THE NEW ADDRESS OF THE ASSESSEE WE ARE REMINDED OF THE LEG AL MAXIM IN PARI DELICTO POTIOR EST CONDITIO DEFENDANTIS MEANING THEREBY WHEN BOTH THE PARTIES ARE AT EQUA L DEFAULT THE ITA NO. 6300/MUM/2011 SATYAJEET MOVIES P. LTD. ASSESSMENT YEAR: 2005-06 3 CONDITION OF THE DEFENDANT THE REVENUE IN THE PRES ENT CASE IS BETTER PLACED. IT IS RELEVANT TO MENTION THAT SECTION 282 OF THE INCOME TAX ACT RECOGNIZES THE SERVICE OF NOTICE IN SUCH A MANNER PROVIDED UNDER THE CODE OF CIVIL PROCEDURE 1908 FOR THE PURPOSE OF SERVICE OF SUMMONS. ORDER V RULE 17 OF THE CODE OF CIVIL PROCEDURE PROVIDES WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERSON AS AFORESAID REFUSES TO SIGN THE ACKNOWLEDGMENT OR WHERE THE SERVING OFFICER AFTER USING ALL DUE AND REASONABLE DILIGENCE CANNOT FIND THE DEFENDANT WHO IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN SERVICE IS SOUGHT TO BE EFFECTED ON HIM AT HIS RESI DENCE AND THERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASONABLE TI ME AND THERE IS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHALF NOR ANY OTHER PERSON ON WHOM SERVICE CAN BE MADE THE SERVING OFFICER SHALL AFFIX A COPY OF THE SUMMONS ON THE OUTER DOOR OR SOME OTHER CONSPICUOUS PART OF THE HOUSE IN WHICH T HE DEFENDANT ORDINARILY RESIDES OR CARRIES ON BUSINESS OR PERSONALLY WORKS FOR GAIN A ND SHALL THEN RETURN THE ORIGINAL TO THE COURT FROM WHICH IT WAS ISSUED WITH A REPORT ENDOR SED THEREON OR ANNEXED THERETO STATING THAT HE HAS SO AFFIXED THE COPY THE CIRCUMSTANCES UNDER WHICH HE DID SO AND THE NAME AND ADDRESS OF THE PERSON (IF ANY) BY WHOM THE HOUS E WAS IDENTIFIED AND WHOSE PRESENCE THE COPY WAS AFFIXED . CONSIDERING THE FACTS AND LEGAL POSITION IN TOTO W E ARE OF THE VIEW THAT DUE PROCESS HAS BEEN FOLLOWED BY THE DEPARTMEN T WHILE PASSING THE ASSESSMENT ORDER U/S 144 OF THE ACT AND THEREFORE WE DO NOT F IND ANY JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) CONFIRMING THE ASSE SSMENT ORDER ON THIS COUNT. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF OCTOBER 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 23.10.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.