VINODINI VYAS, MUMBAI v. ITO - 19(2)(2), MUMBAI

MA 152/MUM/2016 | 2009-2010
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 15219924 RSA 2016
Assessee PAN AFSPP8759P
Bench Mumbai
Appeal Number MA 152/MUM/2016
Duration Of Justice 3 month(s) 22 day(s)
Appellant VINODINI VYAS, MUMBAI
Respondent ITO - 19(2)(2), MUMBAI
Appeal Type Miscellaneous Application
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 26-10-2016
Assessment Year 2009-2010
Appeal Filed On 04-07-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH MUMBAI BEFORE SHRI JASON P. BOAZ ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN JUDICIAL MEMBER MA NO. 152/MUM/2016 (ARISING OUT OF ITA NO. 4097/MUM/2013) (ASSESSMENT YEAR: 2009-10) SMT. VINODINI VYAS VS. INCOME TAX OFFICER - 19(2)(2) FLAT NO. 22 SHANTINIKETAN NEAR YOGA INSTITUTE PRABHAT COLONY SANTACRUZ (E) MUMBAI 400055 3 RD FLOOR PIRAMAL CHAMBERS LALBAUG PAREL MUMBAI 400012 PAN AFSPP8759P APPLICANT RESPONDENT APPLICANT BY: SMT. SANJUKTA CHOUDHARY RESPONDENT BY: SHRI J. SARAVANAN DATE OF HEARING: 07.10.2016 DATE OF PRONOUNCEMENT: 26.10.2016 O R D E R PER JASON P. BOAZ A.M. THIS MISCELLANEOUS APPLICATION (MA) BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 4097/MUM/2013 DATE D 13.04.2016 FOR A.Y. 2009-10; DISMISSING THE ASSESSEES APPEAL EXPA RTE ON MERITS DUE TO NON-PROSECUTION THEREOF BY THE ASSESSEE. 2. THE FACTS OF THE CASE BRIEFLY ARE AS UNDER: - 2.1 THE ASSESSEES APPEAL BEFORE THE TRIBUNAL WAS D IRECTED AGAINST THE ORDER OF THE CIT(A)-30 MUMBAI DATED 11.02.2013 FOR A.Y. 2009-10. THE RECORD INDICATES THAT THE ASSESSEE WAS AFFORDED MAN Y OPPORTUNITIES OF BEING HEARD; BUT NONE APPEARED FOR THE ASSESSEE OR THE BE NCH DID NOT FUNCTION. ON ONE OCCASION THE LEARNED D.R. SOUGHT ADJOURNMENT . FINALLY WHEN THE CASE WAS LISTED FOR HEARING ON 13.04.2016 AND WHEN THE CASE WAS CALLED NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE THE APPEAL WAS DISPOSED OF EXPARTE ON MERITS WITH THE ASSISTANCE OF THE L EARNED D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BEFORE US HO LDING AGAINST THE ASSESSEE. MA NO. 152/MUM/2016 SMT. VINODINI VYAS 2 3. AGGRIEVED BY THIS ORDER DATED 13.04.2016 FOR A.Y. 2 009-10 DISMISSING THE ASSESSEES APPEAL EXPARTE THE ASSES SEE HAS PREFERRED THAT PRESENT MISCELLANEOUS APPLICATION UNDER SECTION 254 (2) OF THE ACT. IN THIS MA THE ASSESSEE HAS SUBMITTED AS UNDER: - 1. THE APPEAL OF THE APPLICANT WAS DECIDED EX-PART E BY THE HON'BLE ITAT - MUMBAI 'F' BENCH VIDE ITS ORDER DATED 13.04. 2016 BY THE APPELLATE TRIBUNAL COMPRISING OF SHRI SANDEEP GOSAI N THE HON'BLE JUDICIAL MEMBER AND SHRI JASON P. BOAZ THE HON'BLE ACCOUNTANT MEMBER AND IT IS RESPECTFULLY SUBMITTED THAT THERE IS MISTAKE APPARENT FROM THE RECORDS IN THE IMPUGNED ORDER CAU SED DUE TO UNINTENTIONAL LAPSE. ACCORDINGLY THE APPLICANT SIN CERELY PRAYS THAT THE SAME IS LIABLE TO BE RECTIFIED BY RECALLIN G OR MODIFYING OR SETTING ASIDE THE IMPUGNED ORDER APPROPRIATELY. 2. THE FACTS WHICH CONSTITUTE THE MISTAKE APPARENT FROM THE RECORDS AND WHICH HAVE NOT TAKEN JUDICIAL NOTICE AND WHICH CAN BE VERIFIED FROM THE RECORDS OF THE HON'BLE TRIBUNAL A RE AS UNDER: (I) THE APPLICANT HAD FILED HER 2 ND APPEAL BEFORE ITAT AGAINST AN EX-PARTE ORDER PASSED BY THE CIT(A) FOR THE ASST . YEAR 2009-10 AFTER CHANGING TWO C.AS. (II) YOUR APPLICANT HAD NOT FACED THE HON'BLE ITAT IN HER LIFE AND IT WAS FOR THE FIRST TIME THE APPEAL BEFORE THE IT AT HAD COME UP FOR HEARING FOR WHICH SHE HIRED A C.A. FIRM M/S. BHUTA & CO. TO PROPERLY REPRESENT HER CASE AND PRAY FOR DUE JUSTICE. (III) WHEN THE HEARING CAME UP. HER C.A FIRST REQUE STED HER TO ATTEND AND TAKE A DATE TO A FUTURE DATE WHICH WAS G RANTED AND AFTER THAT I HAD HANDED OVER ENTIRE PAPERS TO T HE SAID C.A. (IV) THE APPLICANT LEARNT THAT THREE NOTICES HAD B EEN ISSUED BUT HER APPOINTED C.A. HAD NOT ATTENDED THE COURT PROCE EDINGS BEFORE ITAT AND NEITHER ANY ADJOURNMENT REQUEST HAD BEEN FILED IN SPITE OF THE FACT THAT ENTIRE MATERIALS WE RE GIVEN TO HIM AND CONSEQUENTLY THE ORDER WAS PASSED EX-PARTE . (V) THE OMISSION ON THE PART OF C.A. TO ATTEND CON STITUTE A REASONABLE CAUSE AS FAR AS THE APPLICANT AND HER CA SE ARE CONCERNED FOR WHICH IT IS EARNESTLY PRAYED THAT THE INDELIBERATE LAPSE MAY KINDLY BE PARDONED WITH YOUR MERCY AND THE ORDER MAY BE RECALLED AND BE DECIDED AFTER RENDERING A FINAL CHANCE TO THE APPLICANT WITH DUE OPPORTUNITY OF BEING HEARD. (VI) THE APPLICANT HAS FOR NO FAULT OF HER MISER ABLY SUFFERED BY THE IMPUGNED EX-PARTE ORDER AND PRAYS FOR ITS RECAL LING OR SET ASIDE TO THE ASSESSING OFFICER AS THE RELEVANT FACT S HAD NEVER BEEN CONSIDERED AND BEFORE CIT(A) IT WAS ALSO AN E X-PARTE ORDER. MA NO. 152/MUM/2016 SMT. VINODINI VYAS 3 3. THE APPLICANT HUMBLY SUBMITS TO STATE THAT SECT ION 254(2) IS NOT MEANT ONLY FOR RECTIFYING THE MISTAKES IN THE ORDER OF THE TRIBUNAL BUT ALSO OF THE PARTIES AS HELD BY THE HON'BLE BOMB AY HIGH COURT IN : (2014) 369 ITR 758 (BORN) SUPREME INDUSTRIES LTD V S ACIT. IT WAS ALSO HELD BY THE HON'BLE SUPREME COURT IN : (2007) 295 ITR 466 (SC) HONDA SIEL POWER PRODUCTS LTD. V CIT HELD THAT THE APPELLATE TRIBUNAL IN CERTAIN CIRCU MSTANCES CAN RECALL ITS OWN ORDER BY CONSIDERING THE FACTS AND S ECTION 254(2) DOES NOT RESTRICT OR PROHIBIT IN DOING SO. THE SAME PRINCIPLE HAS BEEN AFFIRMED IN (2011) 330 ITR 243 (DEL.) (FB) LAC HMAN DASS BHATIA HINGWALA. (P.) LTD. VS. ACIT. 4. THE APPLICANT FURTHER SUBMIT THAT BEING A LADY SHE WAS NOT HAVING ANY KNOWLEDGE OF TAX LAWS AND SHE HAD BLINDL Y SIGNED THE PAPER AS AND WHEN HER C.AS. HAD DEMANDED. SHE UNDER TAKES TO PAYOFF THE GENUINE TAX LIABILITIES. SHE RESPECTS TH E LAWS OF LAND. IF CERTAIN MISTAKES HAD CREPT INTO EITHER BY HER OWN S IDE OR BY THE SIDE OF ASSESSING OFFICER THE HON'BLE ITAT CAN VERY WELL REDRESS OR ADDRESS THE SAME. THE MISTAKE THAT THE ASSESSING OF FICER HAD FAILED TO CONSIDER AND ON THE BASIS OF WHICH THE HO N'BLE ITAT HAD PASSED THE ORDER BY CONFIRMING THE ADDITIONS AND BY RELYING UPON THOSE ERRONEOUS FACTS THAT THE DEPOSITS AND WITHDRA WALS AS CARRIED OUT WERE NOT FOR THE PAYMENTS TO SHARE BROK ERS ON ACCOUNTS OF APPLICANT'S SHARE DEALINGS WHERE SHE SU FFERED LOSS AND OUT OF WHICH THE LD. ASSESSING OFFICER HAD MADE THE ADDITIONS U/S. 68 WHICH WAS ALSO CONFIRMED BY CIT(A) ON EX-PA RTE BASIS AS ADDITION U/S. 69A AND ALSO THE ADDITION ON ACCOUNT OF ALLEGED PROFIT EARNED FOR BEING UNDISCLOSED BUSINESS INCOME . BOTH THE ADDITIONS ARE INTERRELATED. NOTHING IS SU PPRESSED BUT AT SOME PLACES WRONG FIGURES WERE MENTIONED INDELIBERA TELY BY THE C.A. AT TRIBUNAL LEVEL NO PROPER ARGUMENTS WERE AD VANCED SINCE IT WAS EX-PARTE. IT WAS A CORRECT FACT THAT THERE W AS LOSS ON ACCOUNT OF TRADING IN SHARES. AS A MATTER OF FACT THOUGH THE BUSINESSES OF THE APPLICANT IS CLOSED FOR ONE AND H ALF YEARS ALL HER RECEIPTS USED TO BE IN CASH ONLY. THEREFORE DEPOSI TS AND WITHDRAWALS HAD STRONG CO-RELATIONS TO HER FACTS. 5. YOUR HONOUR BEING THE HIGHEST FACT FINDING BOD Y HAS THE POWER TO REDRESS THE ISSUE THAT THE APPLICANT HAS SUFFERED A T THE HANDS OF VARIOUS CONSULTANTS. NO TAX EVASION EXERCISE HAD BE EN CARRIED OUT BY THE APPLICANT DELIBERATELY. STILL SHE IS SUFFERI NG. EVERY STAGES IT WAS EX-PARTE ORDERS. RELYING UPON A CONSULTANT IS A BONA-FIDE CAUSE. THE AFFIDAVITS OF THE APPLICANT IS FORMING P ART OF THIS M.A. 6. AS STATED IN PARA 5 OF THE ITAT ORDER THE APPOI NTED C.A. DID NOT ATTEND ON THE APPOINTED DATE WHICH HAS CAUSED THE D AMAGE TO APPLICANT'S CASE. IF THE ASSESSING OFFICER DETERMIN ED THE CASE OF LOSS IN SHARE TRADING INTO A CASE OF SHARE TRADING PROFIT OF MA NO. 152/MUM/2016 SMT. VINODINI VYAS 4 RS.5 30 500/- HE IS DUTY BOUND TO GO THROUGH EVEN TILL THE POINT OF COLLECTING ALL SHARE TRANSACTIONS FROM THE PORTAL O F STOCK EXCHANGE OR THOUGH DEMAT A/C DETAILS SINCE THE VERY SAID A/C WAS LINKED WITH HER SAID BANK A/C AS ALLEGEDLY UNDISCLOSED. TH EREFORE TO CUT SHORT THE APPROACH ADOPTED THE ADDITION WAS MADE ERRONEOUSLY. HE EVEN DID NOT SUMMON THE ASSESSEE TO CONFIRM THE FACT. PROFIT IS NOT DETERMINED BY ADDITION AND/OR SUBTRACTION OF PU RCHASES AND SALES ONLY. ALL THE ON-LINE STATEMENTS ARE REQUIRED TO BE CONSIDERED BEFORE ARRIVING AT ANY CONCLUSION TO CONFIRM THE DI SALLOWANCE. THEREFORE LOWER AUTHORITIES' ORDERS SUFFER FROM EQ UITY. 7. THE APPLICANT UNDERTAKES TO NOT TO TAKE ANY DATE FURTHER BEFORE THE HON'BLE ITAT OR BEFORE THE ASSESSING OFFICER I F THIS IMPUGNED ORDER IS SET ASIDE TO THE ASSESSING OFFICER. 8. THE APPLICANT FURTHER SUBMITS THAT: (A) AN INHERENT POWER TO RECTIFY A WRONG COMMITTE D CAN NOT BE CONSTRUCTED TO BE A POWER OF REVIEW. A COURT OR TRI BUNAL CAN BE SAID TO HAVE AN INHERENT POWER AND JURISDICTION TO RECTIFY A WRONG OR CORRECT AN ERROR COMMITTED BY ITSELF. (B) WHAT IS BARRED IS ONLY A REVIEW NOT THE RECTI FICATION. THEREFORE KINDLY BE CONSIDERATE TO RECALL THE MATTER. 9. THE APPLICANT THEREFORE RESPECTFULLY SUBMITS T HAT THE IMPUGNED ORDER DATED 13.04.2016 PASSED BY THE HON'BLE A.M. O F ITAT MAY KINDLY BE RECALLED FOR FRESH ADJUDICATION CONSIDERI NG THE SUBMISSIONS GIVEN HEREINABOVE. THE APPLICANT UNDERT AKES THAT SHE WILL NOT SEEK ANY FURTHER DATE IN FUTURE IN RES PECT OF HER APPEAL BEFORE HON'BLE ITAT. 10. THE APPLICANT THEREFORE PRAYS AS UNDER: (A) THE IMPUGNED ORDER PASSED BY THE HON'BLE ITA T DATED 13.04.2016 MAY KINDLY BE RECALLED AND THE MATTER MA Y BE HEARD AFRESH AND DECIDED ON MERITS BY ADJUDICATING AFTER RENDERING DUE OPPORTUNITY TO THE APPLICANT. (B) ANY OTHER APPROPRIATE RELIEF INCLUDING THE M ATTER HAVING BEEN SET ASIDE TO THE ASSESSING OFFICER WHICH THE HON'BL E MEMBERS MAY DEEM FIT CONSIDERING THE NATURE AND CIRCUMSTANC ES OF THE APPLICANT'S MATTER. 4. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. ON A C AREFUL PERUSAL OF THE ASSESSEES SUBMISSION (SUPRA) WE ARE OF THE VIEW T HAT THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE APPARENT FROM THE FACE OF OUR ORDER IN ITA NO. 4097/MUM/2013 DATED 13.04.2016 THAT WOULD REQUIRE R ECTIFICATION. THE SUBMISSIONS IN THE MA APPEAR TO BE A LITANY OF HER PERSONAL WOES AND DIFFICULTIES AND PROBLEMS SHE IS STATED TO HAVE WIT H HER AUTHORISED MA NO. 152/MUM/2016 SMT. VINODINI VYAS 5 REPRESENTATIVE IN THE MATTER OF THEIR HANDLING OF H ER APPELLATE MATTERS. IT IS ALSO SEEN THAT EVEN THE LEARNED CIT(A)-30 MUMBAI H AD VIDE ORDER DATED 11.02.2013 DISMISSED THE ASSESSEES APPEAL EXPARTE SINCE THE ASSESSEE FAILED TO APPEAR BEFORE HIM ALSO IN APPELLATE PROC EEDINGS. 5. IN THE CASE ON HAND THOUGH IT IS EVIDENT THAT BOTH PARTIES HAVE BEEN PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD WHICH THE ASSESSEE HAS FAILED TO AVAIL THE PLEA HAS BEEN RAISED THAT THE DEFAULTS ARE DUE THE NON- APPEARANCE OF HER AUTHORISED REPRESENTATIVES FOR HE ARING FIXED BEFORE THE BENCH ON THE DATES OF HEARING AND THAT THIS WAS NOT ON ACCOUNT OF ANY DELIBERATE DEFAULT OR MALAFIDE INTENTION ON THE PAR T OF THE ASSESSEE. BE THAT AS IT MAY THE OBJECT OF INCOME TAX PROCEEDINGS IS PRIMARILY THAT THE CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. NATURAL J USTICE REQUIRES THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFTER PROVIDING DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH PAR TIES. THE PROVISO TO RULE 24 OF THE I.T. RULES 1962 (IN SHORT THE RULE S) STATES THAT WHERE AN APPEAL HAS BEEN DISPOSED OFF EXPARTE FOR THE DEFAUL T BY THE APPELLANT IN THIS CASE THE ASSESSEE IF THE ASSESSEE APPEARS AFT ERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HERE N ON-APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING THE TRIBUNAL SHALL M AKE AN ORDER SETTING ASIDE THE EXPARTE ORDER AND RESTORE THE APPEAL. 6. IN THE FACTUAL MATRIX AND CIRCUMSTANCES OF THE CASE ON HAND WE ARE OF THE CONSIDERED VIEW THAT IN TERMS OF THE PROVISO TO RULE 24 OF THE RULES THE ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE IS PROVIDED WITH ONE MORE OPPORTUNITY OF HEARING SO THAT THIS CASE BE DISPOS ED OFF ON MERITS. IN OUR VIEW IF THIS MA IS ALLOWED AND THE APPEAL OF THE A SSESSEE IS RESTORED NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENU E AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE COLLEC TED. WHEREAS IF THE CONTRARY VIEW IS TAKEN THE ASSESSEE MAY BE PUT TO G REAT HARDSHIP AND DIFFICULTY. KEEPING IN VIEW THE DISCUSSION ABOVE W E ALLOW THE ASSESSEES MA INVOKING THE PROVISIONS OF THE PROVISO TO RULE 24 OF THE RULES AND ACCORDINGLY SET ASIDE OUR EXPARTE ORDER IN ITA NO. 4097/MUM/2012 DATED 13.04.2016 AND RESTORE THE APPEAL TO BE HEARD ON ME RITS. MA NO. 152/MUM/2016 SMT. VINODINI VYAS 6 7. THE APPEAL IS TO BE FIXED FOR HEARING ON MERITS ON 10.11.2016. REGISTRY WILL ISSUE NOTICES TO BOTH PARTIES FOR HEA RING ACCORDINGLY. 8. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER 2016. SD/ - SD/ - (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 26 TH OCTOBER 2016 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -30 MUMBAI 4. THE CIT - 19 MUMBAI 5. THE DR F BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.