BHUPENDRA C. DALAL, MUMBAI v. C.I.T. OSD-11/CR 7, MUMBAI

MA 171/MUM/2011 | 2005-2006
Pronouncement Date: 24-02-2012 | Result: Dismissed

Appeal Details

RSA Number 17119924 RSA 2011
Assessee PAN AABPD3308H
Bench Mumbai
Appeal Number MA 171/MUM/2011
Duration Of Justice 11 month(s) 8 day(s)
Appellant BHUPENDRA C. DALAL, MUMBAI
Respondent C.I.T. OSD-11/CR 7, MUMBAI
Appeal Type Miscellaneous Application
Pronouncement Date 24-02-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 24-02-2012
Assessment Year 2005-2006
Appeal Filed On 16-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K BENCH BEFORE SHRI N.V. VASUDEVAN J.M. AND SHRI RAJENDRA SINGH A.M. S.NO. M.A. NO. ARISING OUT OF ITA NO. ASSESSMENT YEAR 1. 207/MUM/2010 1621/M/1999 3364/M/1996 2120/M/1997 4164/M/1997 2542/M/1996 2959/M/1996 4104/M/1997 3004/M/1996 (1987-88) (1988-89) (1989-90) (1991-92) (1991-92) (1988-89) (1990-91) (1991-92 2. 205/MUM/2010 166/M/1996 292/M/1996 (1992-93) (1992-93) 3. 161/MUM/2011 4104/M/1997 (1990-91) 4. 162/MUM/2011 2542/M/1996 (1991-92) 5. 163/MUM/2011 4164/M/1997 (1990-91) 6. 164/MUM/2011 2110/M/1997 (1989-90) 7. 165/MUM/2011 3364/M/1996 (1988-89) 8. 166/MUM/2011 2959/M/1996 (1988-89) 9. 171/MUM/2011 1621/M/1999 (1987-88) 10. 172/MUM/2011 3004/M/1996 (1991-92) SHRI BHUPENDRA C. DALAL 208 REGENT CHAMBERS NARIMAN POINT MUMBAI-400 021 PAN NO.: AABPD 3308 H DY. COMMISSIONER OF INCOME TAX (OSD-II)-CR-7 MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI BHUPENDRA C. DALAL RESPONDENT BY : DR. P. DANIEL DATE OF HEARING : 17.02.2012 DATE OF PRONOUNCEMENT : 24.02.2012 ORDER PER RAJENDRA SINGH (AM). THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE REQUESTING FOR RECALL/AMENDMENT OF THE ORDERS OF THE TRIBUNAL MA NO.205 206 161 TO 166 171 & 172 BHUPENDRA C. DALAL (ASSESSM ENT YEARS :87-88 TO 91-92) 2 DATED 29.3.2006 IN ITA NO.166 & 292/M/2004 FOR ASSESSME NT YEAR 1992-93 AND COMMON ORDER DATED 30.3.2006 FOR THE ASSESSM ENT YEARS 1987-88 TO 1991-92. IN THE SAID ORDERS THE TRIBUNAL HAD SET ASIDE THE ORDER OF CIT(A) AND RESTORED THE MATTER TO THE FILE OF AO FOR PASSING FRESH ORDERS AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AFTER CONFRONTING THE ASSESSEE WITH THE RELEVAN T MATERIAL. THE ASSESSEE IN THE MISCELLANEOUS APPLICATIONS HA S SUBMITTED THAT SINCE THE RELEVANT ORDERS HAD BEEN PASSE D BY THE AO ON THE BASIS OF THE MATERIAL COLLECTED AT THE BACK OF THE ASSESSEE AND WITHOUT CONFRONTING THE ASSESSEE THE TRIBUNAL SHOULD HAV E QUASHED THE ASSESSMENT ORDERS AND NOT JUST SET ASIDE FOR FRESH ASSESSMEN T. 2. WE HAVE HEARD BOTH THE PARTIES. THE LD. AR FOR T HE ASSESSEE REITERATED THE STAND THAT THE ASSESSMENT ORDER SHOULD HA VE BEEN QUASHED AS THE SAME HAD BEEN PASSED ON THE BASIS OF MATER IAL NOT CONFRONTED TO THE ASSESSEE. THE AO HAD MADE ASSESSMENTS ON T HE BASIS OF MATERIAL COLLECTED ON THE BACK OF THE ASSESSEE WHICH WERE NOT MADE AVAILABLE TO IT AT THE TIME OF PASSING OF THE RE LEVANT ORDERS. THESE FACTS WERE DULY NOTED BY THE TRIBUNAL IN THE IMP UGNED ORDERS AND YET THE TRIBUNAL HAD RESTORED THE MATTER TO THE AO THOUGH THE ORDERS WERE REQUIRED TO BE QUASHED. THE LD. AR ALSO PO INTED OUT THAT EVEN IN THE FRESH ASSESSMENTS THE AO DID NOT FOLLOW THE DIRECTION OF THE TRIBUNAL AND THE FRESH ASSESSMENTS HAVE AGAIN BEEN MA DE WITHOUT MAKING AVAILABLE TO THE ASSESSEE THE RELEVANT MATERIAL AND WITHOUT PROPER OPPORTUNITY. THE SETTING ASIDE OF THE ASSESSMENT WAS THUS NOT PREFERRED. RELIANCE WAS PLACED ON THE DECISION OF THE T RIBUNAL IN THE CASE OF SUDHA DEVI MODI VS. ACIT (84 ITD 604) AND ON T HE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT VS. ANIMA INVESTMENTS LTD.(71 ITD 125). IT WAS ACCORDINGLY REQUESTED THAT THE ORDERS OF TH E TRIBUNAL SHOULD BE AMENDED SO AS TO QUASH THE ASSESSMENT ORDERS. MA NO.205 206 161 TO 166 171 & 172 BHUPENDRA C. DALAL (ASSESSM ENT YEARS :87-88 TO 91-92) 3 2.1 THE LD. DR ON THE OTHER HAND ARGUED THAT THE T RIBUNAL HAD NO POWER TO REVIEW ITS OWN DECISION AND THAT IT COULD RECTI FY ONLY AN APPARENT MISTAKE. RELIANCE WAS PLACED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RAMESH ELECTRIC AND TRADING CO.(203 ITR 497). IN THIS CASE IT WAS SUBMITT ED THERE WERE NO APPARENT MISTAKES. HE REFERRED TO PARA-6 OF THE O RDER OF THE TRIBUNAL IN WHICH THE AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE HAD RAISED THE ISSUE OF LACK OF ADEQUATE OPPORTUNITY BY THE AO AND HAD REQUESTED FOR SETTING ASIDE OF EXPARTE ORDERS PASSED BY T HE AO AND FOR MAKING FRESH ASSESSMENT ORDERS DENOVO AFTER CONFRONTING TH E ASSESSEE WITH THE RELEVANT MATERIAL. THE TRIBUNAL HAD ACCEPTE D THE REQUEST OF THE ASSESSEE AND THE MATTER HAD BEEN RESTORED TO THE AO. THEREFORE THE ASSESSEE COULD NOT NOW ARGUE THAT THERE WAS AN APP ARENT MISTAKE IN THE ORDERS OF THE TRIBUNAL. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. IN THESE CASES ASSESSMENTS HAD BEEN MADE BY THE AO ON THE BASIS OF SOME MATERIALS COLLECTED. ASSESSEE HAD DISPUTE D THESE ADDITIONS AND THE ARGUMENTS RAISED BEFORE THE TRIBUNA L WERE THAT THE ASSESSEE HAD NOT BEEN CONFRONTED WITH THE MATERIAL USED A GAINST THE ASSESSEE AND ACCORDINGLY REQUESTED THAT THE MATTER SHOULD B E RESTORED TO THE FILE OF AO FOR MAKING FRESH ASSESSMENT AFTER CONF RONTING THE ASSESSEE WITH THE MATERIAL COLLECTED AND AFTER ALLOWING O PPORTUNITY OF HEARING TO THE ASSESSEE AS IS DULY MENTIONED IN PARA-6 OF THE ORDER OF THE TRIBUNAL. IN A CASE WHERE THE ASSESSMENT HAD BEEN MA DE WITHOUT CONFRONTING THE ASSESSEE WITH THE MATERIAL APPROPRIATE COURSE OF ACTION IS TO RESTORE THE MATTER TO THE FILE OF AO FOR FRESH ORDER AFTER CONFRONTING THE ASSESSEE WITH THE MATERIAL USED AGAINST T HE ASSESSEE AND AFTER HEARING THE ASSESSEE. IN THIS CASE THE TRIBUNA L HAD TAKEN THE SAME VIEW WHICH WAS ALSO IN CONFORMITY WITH THE REQU EST MADE BY MA NO.205 206 161 TO 166 171 & 172 BHUPENDRA C. DALAL (ASSESSM ENT YEARS :87-88 TO 91-92) 4 THE ASSESSEE. WE THEREFORE SEE NO APPARENT MISTAKE IN THE ORDERS OF THE TRIBUNAL. 3.1 THE ASSESSEE HAS RELIED ON CERTAIN DECISIONS AS MENTIONE D EARLIER WHICH IN OUR VIEW ARE DISTINGUISHABLE AND NOT APPLICAB LE TO THE FACTS OF THE PRESENT CASE. IN THE CASE OF SUDHA DEVI MODI VS. CIT (SUPRA) THE ASSESSEE HAD PRODUCED MATERIAL/EVIDENCE IN SUPPORT OF THE CLAIM BEFORE AO WHICH HAD NOT BEEN DISPROVED BY THE AO AND THEREFORE IT HAD BEEN HELD BY THE TRIBUNAL THAT IT WOULD NOT BE PROPER TO RESTORE THE MATTER BACK TO THE AO FOR PROVIDING ONE MORE OPP ORTUNITY TO THE AO TO MAKE GOOD THE OMISSIONS AND TO IMPROVE THE ASSESSME NT. SIMILAR WAS THE POSITION IN THE CASE OF ACIT VS. ANIMA I NVESTMENTS LTD. (SUPRA) IN WHICH IT WAS HELD THAT SETTING ASIDE TO ENABLE THE AO TO MAKE UP THE DEFICIENCY IN THE ASSESSMENT WAS NOT PROPER. THE CASE OF THE ASSESSEE IS DIFFERENT. AS MENTIONED EARLIER THE ASSESSME NT HAD BEEN MADE ON THE BASIS OF MATERIAL WHICH HAD NOT BEEN CONFRONTED TO THE ASSESSEE AND THEREFORE THE MATTER HAD BEEN RESTORE D TO THE AO TO MAKE FRESH ASSESSMENT DENOVO AFTER CONFRONTING THE MA TERIAL TO THE ASSESSEE WHICH WAS ALSO AS PER REQUEST OF THE ASSESSEE. THERE WAS THUS NO APPARENT MISTAKE. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN DECISION. THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE E ARE DEVOID OF ANY MERIT AND THE SAME ARE REJECTED. 4. IN THE RESULT ALL THE MISCELLANEOUS APPLICATIONS STAN D REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.2.2012. SD/- SD/- (N.V. VASUDEVAN) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 24.2.2012. JV. MA NO.205 206 161 TO 166 171 & 172 BHUPENDRA C. DALAL (ASSESSM ENT YEARS :87-88 TO 91-92) 5 COPY TO: THE APPLICANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.