UNITED LINER AGENCIES ( STEVEDORES), v. DCIT CEN CIR 39,

MA 558/MUM/2010 | 1998-1999
Pronouncement Date: 14-12-2010 | Result: Dismissed

Appeal Details

RSA Number 55819924 RSA 2010
Assessee PAN AAAFU1731E
Bench Mumbai
Appeal Number MA 558/MUM/2010
Duration Of Justice 2 month(s) 28 day(s)
Appellant UNITED LINER AGENCIES ( STEVEDORES),
Respondent DCIT CEN CIR 39,
Appeal Type Miscellaneous Application
Pronouncement Date 14-12-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 14-12-2010
Assessment Year 1998-1999
Appeal Filed On 16-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH MUMBAI. BEFORE SHRI R.V.EASWAR PRESIDENT AND SHRI P.M. JAGTAP AM M.A. NO.558/MUM/2010 (ARISING OUT OF ITA NO.652/MUM/2008) (ASSESSMENT YEAR: 1998-99) M/S.UNITED LINER AGENCIES (STEVEDORES) KAISER-I HIND BUILDING 4 TH FLOOR CURRIMBHOY ROAD BALLARD ESTATE MUMBAI-400 001. PAN:AAAFU1731E VS. THE DEPUTY COMMISSIONER OF INCOME TAX C.C.39 R.NO.32(1) AAYAKAR BHAVAN M.K.ROAD MUMBAI-400 020. (APPLICANT) (RESPONDENT) APPLICANT BY : MR. Y.P.TRIVEDI MS. RUPAL VORA & MS.USHA DALAL RESPONDENT BY : MR. S.K.SINGH DR O R D E R PER R.V.EASWAR PRESIDENT: THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE U/S.254( 2) OF THE INCOME TAX ACT ON THE GROUND THAT THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 1998-99 IN ITA NO.652/MUM/2008 DATED 30 TH JULY 2010 BY WHICH THE PENALTY OF RS.60.02 488/- WAS CONFIRMED CONTAIN S CERTAIN MISTAKES APPARENT FROM THE RECORD. THE PRAY ER IS THAT THE SAID ORDER SHOULD BE RECALLED AND FRESH HEARING OF THE APPEAL SHOULD BE ORDERED. 2. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN TH E BUSINESS OF STEVEDORING. IT CLAIMED TO HAVE PAID COMMISSION OF RS.1 71 49 967 DURING THE YEAR TO VARIOUS PARTIES WHICH WERE 14 IN NUMBER. THESE CONCERNS WERE SISTER CONCERNS OR ASSOCIATES OF THE MA NO.558/MUM/10 2 ASSESSEE-FIRM. THE ASSESSING OFFICER DISALLOWED THE COMMISSION ON THE GROUND THAT THERE WAS NO EVIDENCE TO SHOW WHETHER ANY SERVICES WERE RENDERED BY THOSE CONCERNS. FOR THIS PURPOSE HE RELIED ON THE STATEMENTS RECORDED FROM S.K. PARIKH CHIEF FINANCE CONTROLLER CYRUS S. COOPER CHIEF ACCOUNTS OFFICER AND C.A. ALFONSO OPERATIONAL MANAGER OF THE ASSESSEE-F IRM IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED U/S.133A. THE APPEAL OF THE ASSESSEE AGAINST THE DISALLOWANCE OF THE COMMISSION WAS DISMISSED BY THE CIT(A) WHOSE DECISION WAS UPHELD BY THE TRIBUNAL VI DE ORDER DATED 28-4-2006 IN ITA NO.2660/MUM/2002. THE ASSESSEES MISCELLANEOUS APPLICATION FILED AGAI NST THIS ORDER OF THE TRIBUNAL WAS ALSO DISMISSED BY OR DER DATED 30-4-2010 IN MA NO.89/MUM/2010. 3. IN THE MEANTIME THE ASSESSING OFFICER HAD INITIATED PROCEEDINGS FOR THE LEVY OF PENALTY FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS THEREOF ON THE ASSESSEE U/S.271(1)(C) R .W. SEC.274 OF THE I.T. ACT. AFTER REJECTING THE EXPLAN ATION OF THE ASSESSEE PENALTY OF RS.60 02 488 WAS IMPOSE D WHICH WAS CONFIRMED BY THE CIT(A). THE ASSESSEE FIL ED A FURTHER APPEAL BEFORE THE TRIBUNAL IN ITA NO.652/MUM/2008 WHICH WAS ALSO DISMISSED BY ORDER DATED 30 TH JULY 2010 AND THUS THE PENALTY WAS CONFIRMED. IT IS AGAINST THIS ORDER OF THE TRIBUNAL THAT MA NO.558/MUM/10 3 THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE RAISED THE FOLLOWING POINTS IN SUPPORT OF THE APPLICATION: A) THE AFFIDAVIT FILED BY S.K. PARIKH AND OTHERS IN WHICH THEY RETRACTED FROM THEIR STATEMENTS GIVEN DURING THE SURVEY WERE WRONGLY CONSIDERED BY THE TRIBUNAL AS FRESH EVIDENCE AND INADMISSIBLE ON THAT GROUND. THE PAPER BOOK FILED BY THE ASSESSEE HAS BEEN DULY CERTIFIED AND THE AFFIDAVITS WERE CERTIFIED TO HAVE BEEN FILED BEFORE THE ASSESSING OFFICER. B) THE TRIBUNAL WAS WRONG IN SAYING THAT THE FACT THAT THE ASSESSING OFFICER HAD DROPPED THE PENALTY PROCEEDINGS INITIATED FOR THE EARLIER YEARS WAS NOT ON THE MERITS BUT ONLY BECAUSE THE REASSESSMENT PROCEEDINGS FOR THOSE YEARS WERE HELD TO BE INVALID. THE ORDERS OF THE ASSESSING OFFICER DROPPING THE PENALTY PROCEEDINGS FOR ASST. YEARS 1991-92 TO 1997-98 WERE PASSED ON 28-3-2005 AFTER THE CIT(A) HAD PASSED HIS ORDERS FOR THOSE YEARS ON 28-8- 2003 CONFIRMING THE DISALLOWANCE OF THE COMMISSION FOR THE ASST.YEARS 1991-92 TO 1994-95 AND HOLDING THE REOPENING OF THE MA NO.558/MUM/10 4 ASSESSMENTS FOR THE ASSESSMENT YEARS 1995-96 TO 1997-98 TO BE INVALID. THE ORDERS OF THE CIT(A) WERE UPHELD BY THE TRIBUNAL BY ORDERS PASSED ON 26-9-2006 AND 27-2-2007. THUS THE TRIBUNAL ERRED IN HOLDING THAT THE PENALTY PROCEEDINGS FOR THE EARLIER YEARS WERE NOT DROPPED ON MERITS. C) THE TRIBUNAL ALSO COMMITTED A MISTAKE IN HOLDING THAT THE DROPPING OF THE PENALTY PROCEEDINGS FOR THE EARLIER YEARS IS NOT A RELEVANT FACT TO BE TAKEN INTO ACCOUNT WHILE DECIDING THE APPEAL FOR THE ASSESSMENT YEAR 1998-99. IT IS A SETTLED PRINCIPLE THAT THE DEPARTMENT SHOULD BE CONSISTENT IN ITS APPROACH AND THE TRIBUNAL ERRED IN OVERLOOKING THE PRINCIPLE. D) THE TRIBUNAL HAS THUS DECIDED THE ISSUE ON WRONG FACTS WHICH VITIATED ITS CONCLUSION AND THUS THERE WAS TOTAL ANNIHILATION OF JUSTICE. IT WAS THUS CONTENDED THAT THE TRIBUNAL SHOULD RECA LL ITS ORDER AND HEAR THE APPEAL AFRESH. THE MISCELLANEOUS APPLICATION WAS ALSO READ OUT BEFORE US TO DRIVE HOME THE SUBMISSIONS. MA NO.558/MUM/10 5 5. ON THE OTHER HAND THE LEARNED SR.DR SUBMITTED AS FOLLOWS: A) THE TRIBUNAL HAS RIGHTLY RECOGNISED THE FACT THAT THE PENALTY WAS IMPOSED NOT MERELY ON THE BASIS OF THE STATEMENTS RECORDED DURING THE SURVEY BUT ALSO BECAUSE THERE WAS NO EVIDENCE ADDUCED BY THE ASSESSEE TO PROVE WHETHER ANY SERVICES WERE RENDERED BY THE PAYEES AND IF SO WHAT WAS THE NATURE OF THE SERVICES SO AS TO JUSTIFY THE COMMISSION PAYMENT. B) THE AFFIDAVITS ARE DATED JANUARY 2002 WHEREAS THE ASSESSMENT WAS COMPLETED ON 30-3-2001. THEY WERE NOT THEREFORE BEFORE THE ASSESSING OFFICER. THE TRIBUNAL IS THEREFORE RIGHT IN SAYING THAT THEY HAVE NO EVIDENTIARY VALUE. C) THE ASSESSEES MISCELLANEOUS APPLICATION (MA NO.89/MUM/2010) FILED AGAINST THE ORDER OF THE TRIBUNAL IN THE QUANTUM PROCEEDINGS HAS BEEN REJECTED WHERE SIMILAR CONTENTIONS WERE RAISED BY THE ASSESSEE. D) AS THE RULE OF RES JUDICATA IS NOT STRICTLY APPLICABLE TO THE INCOME-TAX PROCEEDINGS AND SINCE EACH ASSESSMENT YEAR IS DISTINCT AND SEPARATE THE FACT THAT THE ASSESSING OFFICER HAD DROPPED THE PENALTY MA NO.558/MUM/10 6 PROCEEDINGS FOR THE EARLIER YEARS HAS RIGHTLY NOT BEEN CONSIDERED TO BE RELEVANT BY THE TRIBUNAL. ON THE BASIS OF THE ABOVE SUBMISSIONS THE LEARNED SR.DR CONTENDED THAT THE ORDER OF THE TRIBUNAL DID NOT CONTAIN ANY MISTAKES APPARENT FROM THE RECORD AND THERE WAS NO NEED TO RECALL ITS ORDER. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATION AND THE RELEVANT MATERIAL ON RECORD. AN APPLICATION FOR RECTIFICATION OF THE TRI BUNALS ORDER U/S.254(2) CAN BE ACCEPTED ONLY IF THE ORDER CONTAINS MISTAKES WHICH ARE APPARENT FROM THE RECOR D. ANY POINT DECIDED BY THE TRIBUNAL ON WHICH TWO OR MORE OPINIONS ARE POSSIBLE OR WHICH MAY GIVE RISE T O AN ARGUMENT OR DEBATE CANNOT BE CONSIDERED TO FALL UNDER THIS CATEGORY. IT IS ALSO WELL-ESTABLISHED TH AT THE TRIBUNAL HAS NO POWER OF REVIEW OF ITS ORDER IN THE GUISE OF CORRECTING OR RECTIFYING MISTAKES APPARENT FROM THE RECORD. IN THE LIGHT OF THESE PRINCIPLES WE FIND IT DIFFICULT TO ACCEPT THE CONTENTIONS OF THE LEARN ED COUNSEL FOR THE ASSESSEE. IT IS A FACT THAT THAT TH E AFFIDAVITS ARE DATED JANUARY 2002 A DATE WHICH IS LATER TO THE DATE ON WHICH THE ASSESSMENT WAS COMPLETED (30-3-2001). WHETHER IN SUCH A CASE THE AFFIDAVITS CAN BE TAKEN TO HAVE ANY EVIDENTIARY VAL UE OR NOT IS A MATTER OF INFERENCE AND THE DECISION OF TH E MA NO.558/MUM/10 7 TRIBUNAL THAT THEY DID NOT HAVE ANY EVIDENTIARY VAL UE CANNOT GIVE RISE TO ANY MISTAKE APPARENT FROM THE RECORD. IT IS THE VIEW OF THE TRIBUNAL THAT NO EVID ENTIARY VALUE CAN BE ATTACHED TO THE AFFIDAVITS. WHETHER TH E VIEW IS WRONG OR RIGHT IS NOT A MATTER WHICH CAN BE CANVASSED U/S.254(2). AT BEST IT COULD BE SAID TO B E ARGUABLE OR DEBATABLE. SECONDLY EVEN IF IT IS ASSU MED THAT THE ASSESSING OFFICER HAD DROPPED THE PENALTY PROCEEDINGS FOR THE EARLIER YEARS ON MERITS FOR W HICH THERE IS NO EVIDENCE ON RECORD EXCEPT A POSSIBLE INFERENCE THE QUESTION WOULD STILL REMAIN WHETHER THE ASSESSEE FOR THE YEAR UNDER APPEAL CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF. WHETHER THE ASSESSEE CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF IS A MATTE R TO BE EXAMINED ON YEAR TO YEAR BASIS AND THE FACT THAT THE ASSESSING OFFICER HAD DROPPED THE PROCEEDINGS FOR O NE OR MORE EARLIER YEARS IS NOT CONCLUSIVE OF THE QUES TION WHEN IT CROPS UP IN A SUBSEQUENT YEAR. THE QUESTION BEFORE THE TRIBUNAL WAS WHETHER FOR THE YEAR UNDER APPEAL THE ASSESSEE WAS ABLE TO PROVE WHETHER THE PAYEES OF THE COMMISSION RENDERED ANY SERVICES AND IF SO THE NATURE OF THE SAME. THESE ARE ALL MATTERS WH ICH HAVE TO BE DECIDED ON THE BASIS OF THE EVIDENCE AND THE TRIBUNAL FOUND NONE IN SUPPORT OF THE CLAIM FOR COMMISSION PAYMENT. THE TRIBUNAL ALSO FOUND THAT TH E ENTRIES FOR COMMISSION PAYMENT WERE MADE IN A SOMEWHAT ROUNDABOUT WAY WITHOUT SHOWING THEM IN MA NO.558/MUM/10 8 THE COMMISSION ACCOUNT OR IN THE PROFIT AND LOSS ACCOUNT AND THUS DRAWING THE DIRECT ATTENTION OF TH E INCOME-TAX AUTHORITIES. THE COMMISSION PAYMENT WAS FOUND DEBITED AT THE YEAR-END TO THE VESSEL ACCOUNT AND THE AMOUNT CREDITED TO THE STEVEDORES ACCOUNT I N THE PROFIT AND LOSS ACCOUNT WAS THE NET AMOUNT RECEIVED FROM EACH CLIENT. IN ANY CASE THESE ARE A LL MATTERS WHICH ARE BEYOND THE SCOPE OF THE EXPRESSIO N MISTAKE APPARENT FROM THE RECORD. AT BEST THEY A RE ON ARGUABLE OR DEBATABLE ISSUES AND THE DECISION OR CONCLUSION OF THE TRIBUNAL ON THESE POINTS CAN ONLY GIVE RISE TO AN ARGUMENT OR DEBATE. IT CANNOT BE CORRECTED AS A MISTAKE APPARENT FROM THE RECORD. 7. THE ORDER OF THE TRIBUNAL READ AS A WHOLE DOES NOT APPEAR TO US TO CONTAIN ANY MISTAKE APPARENT FR OM THE RECORD. THE DECISION OF THE TRIBUNAL IS BASED O N AN OVERALL APPRECIATION OF THE EVIDENCE AND CONDUCT OF THE ASSESSEE WHETHER IT WAS CONTUMACIOUS OR NOT. THE APPLICATION FILED BY THE ASSESSEE SEEMS TO US TO BE ONE FOR REVIEW OF THE DECISION OF THE TRIBUNAL. WE HAVE NO SUCH POWER. IN THESE CIRCUMSTANCES WE HAVE NO OPTIO N BUT TO REJECT THE APPLICATION. MA NO.558/MUM/10 9 8. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REJECTED. ORDER PRONOUNCED ON THIS 14 TH DAY OF DECEMBER 2010 IN THE OPEN COURT. SD/- (P.M. JAGTAP) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER PRESIDENT MUMBAI DATED 14 TH DECEMBER 2010. SOMU COPY TO : 1. THE APPLICANT 2. THE RESPONDENT` 3. THE CIT(A) C-VIII MUMBAI. 4. THE CIT-C-III MUMBAI 5. THE DR F BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR I.T.A.T MUMBAI