ASST CIT-2, v. VIJAY CHATURVEDI, PALGHAR

MA 630/MUM/2010 | misc
Pronouncement Date: 21-09-2011 | Result: Dismissed

Appeal Details

RSA Number 63019924 RSA 2010
Assessee PAN AHAPC7617E
Bench Mumbai
Appeal Number MA 630/MUM/2010
Duration Of Justice 10 month(s) 25 day(s)
Appellant ASST CIT-2,
Respondent VIJAY CHATURVEDI, PALGHAR
Appeal Type Miscellaneous Application
Pronouncement Date 21-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 21-09-2011
Assessment Year misc
Appeal Filed On 26-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI BEFORE SHRI R V EASWAR PRESIDENT AND SHRI T R SOOD ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO: 630/MUM/2010 [ARISING OUT OF I T (SS) A NO: 75/MUM/2008] (BLOCK PERIOD: 01.04.1989 TO 11.01.1999) ASSISTANT COMMISSIONER OF INCOME TAX APPLICANT CIRCLE 2 THANE VS SHRI VIJAY CHATURVEDI MUMBAI RESPONDENT (PAN: AHAPC7617E) ASSESSEE BY: NONE REVENUE BY: MR PK B MENON DATE OF HEARING: 16 TH SEPTEMBER 2011 DATE OF PRONOUNCEMENT: 21 ST SEPTEMBER 2011 O R D E R R V EASWAR PRESIDENT: THIS APPLICATION HAS BEEN FILED BY THE REVENUE UNDE R SECTION 254(2) OF THE INCOME TAX ACT 1961 SEEKING AMENDME NT OF THE ORDER OF THE TRIBUNAL DATED 11 TH JUNE 2010 PASSED IN THE APPEAL. 2. THE NOTICE POSTING THE MISCELLANEOUS APPLICATION FOR HEARING WAS SERVED ON THE ASSESSEE BY AFFIXTURE AND THE COP Y OF THE REPORT OF THE INCOME TAX AUTHORITIES HAS BEEN PLACED ON RECOR D. THE ASSESSEE DID NOT APPEAR. THE LEARNED DR HAS BEEN HEARD IN S UPPORT OF THE APPLICATION. 3. WE ARE UNABLE TO ACCEPT THE APPLICATION. THE QU ESTION BEFORE THE TRIBUNAL WAS REGARDING THE ADDITION MADE ON THE BASIS OF A DIARY 2 MA NO: 630/MUM/2010 [ARISING OUT OF IT(SS)A NO: 75/MUM/2008] SEIZED DURING THE SEARCH ON THE ASSESSEE. THE MATT ER HAD EARLIER REACHED THE TRIBUNAL IN IT(SS)A NO: 33/MUM/2005. T HE TRIBUNAL FELT THAT THE MATTER NEEDED FRESH VERIFICATION BY THE AS SESSING OFFICER. THE REASON FOR THE SAME WAS THAT THE ASSESSEE HAD STATE D BEFORE THE ASSESSING OFFICER THAT THE DIARY BELONGED TO ANOTHE R PERSON BY NAME T CHATURVEDI. THE TRIBUNAL DID RECOGNIZE THAT THE ONUS WAS UPON THE ASSESSEE BECAUSE THE DIARY WAS FOUND IN HIS POSSESS ION BUT NEVERTHELESS DIRECTED THE ASSESSING OFFICER TO COND UCT ANOTHER VERIFICATION IN THE LIGHT OF THE ASSESSEES SPECIFI C PLEA. WHEN THE MATTER WAS TAKEN UP BY THE ASSESSING OFFICER AFRESH HE RE PEATED THE ADDITION WHICH WAS CONFIRMED BY THE CIT(A) AND THE MATTER REACHED THE TRIBUNAL AGAIN IN IT(SS)A NO: 75/MUM/2008. AFT ER HEARING BOTH THE SIDES THE TRIBUNAL WAS OF THE VIEW THAT THE ASS ESSING OFFICER FAILED TO CARRY OUT A PROPER VERIFICATION AS DIRECTED BY T HE TRIBUNAL EARLIER. IN THIS CONNECTION IT REFERRED TO A LETTER DATED 12 TH DECEMBER 2007 FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER REQUESTIN G THE ASSESSING OFFICER TO ISSUE SUMMONS TO T CHATURVEDI AND VERIFY THE ASSESSEES PLEA THAT THE DIARY BELONGED TO T CHATURVEDI. THE LETTER IS EXTRACTED IN THE ORDER OF THE TRIBUNAL AT PAGES 6 AND 7. THE TR IBUNAL ALSO NOTED THAT IN THE LETTER THE ASSESSEE HAD FURNISHED THE T ELEPHONE NUMBER AND ADDRESS AS WELL AS THE PERMANENT ACCOUNT NUMBER OF T CHATURVEDI. THE TRIBUNAL NOTED THAT DESPITE THIS SPECIFIC PLEA OF THE ASSESSEE TO SUMMON T CHATURVEDI AND EVEN AFTER THE NECESSARY PA RTICULARS ABOUT HIM WERE GIVEN BY THE ASSESSEE THE ASSESSING OFFIC ER DID NOT CARRY 3 MA NO: 630/MUM/2010 [ARISING OUT OF IT(SS)A NO: 75/MUM/2008] OUT THE DIRECTIONS OF THE TRIBUNAL BY VERIFYING THE ASSESSEES PLEA. IN THIS VIEW OF THE MATTER THE TRIBUNAL OPINED THAT AN OTHER INNINGS NEED NOT BE GIVEN TO THE ASSESSING OFFICER. ACCORDINGLY THE ADDITION WAS DELETED AND THE APPEAL WAS ALLOWED. 4. THE ABOVE NARRATION WOULD SHOW THAT A PARTICULAR VIEW WAS TAKEN BY THE TRIBUNAL REGARDING THE ONUS PLACED ON THE ASSESSEE IN THE LIGHT OF THE SPECIFIC DIRECTION GIVEN IN THE EARLIE R ORDER OF THE TRIBUNAL. BECAUSE ACCORDING TO THE TRIBUNAL THE DIRECTION O F THE EARLIER TRIBUNAL WAS NOT FOLLOWED BY THE ASSESSING OFFICER DESPITE T HE PARTICULARS HAVING BEEN FURNISHED BY THE ASSESSEE THE ADDITION HAD NO BASIS. THIS IS A VIEW TAKEN BY THE TRIBUNAL ON THE QUESTIO N OF THE DISCHARGE OF THE ONUS PLACED ON THE ASSESSEE. THE ARGUMENT OF T HE REVENUE BEFORE US THAT NO FRESH EVIDENCE WAS ADDUCED DURING THE FR ESH ASSESSMENT PROCEEDINGS AND THEREFORE THE ASSESSEE CANNOT BE SA ID TO HAVE DISCHARGED HIS ONUS DOES NOT APPEAR TO BE ACCURATE BECAUSE THE TRIBUNAL HAS SPECIFICALLY REFERRED TO THE ASSESSEE S LETTER DATED 12 TH DECEMBER 2007 WHICH WAS FILED BEFORE THE ASSESSING OFFICER IN THE FRESH ASSESSMENT PROCEEDINGS. THERE IS NO DISPUTE THAT THIS LETTER CONTAINED ALL THE NECESSARY PARTICULARS ABOUT T CHA TURVEDI TO ENABLE VERIFICATION BY THE ASSESSING OFFICER. IN THE LIGH T OF THIS EVIDENCE THERE CANNOT BE SAID TO BE ANY MISTAKE APPARENT FROM THE RECORD IN THE CONCLUSION OF THE TRIBUNAL. THE APPLICATION FILED BY THE DEPARTMENT WITH RESPECT APPEARS TO BE ONE FOR REVIEW OF THE D ECISION OF THE 4 MA NO: 630/MUM/2010 [ARISING OUT OF IT(SS)A NO: 75/MUM/2008] TRIBUNAL. THE TRIBUNAL DOES NOT POSSESS THE POWER OF REVIEW UNDER SECTION 254(2) OF THE ACT. 5. WE ARE THUS SATISFIED THAT THE APPLICATION FILED BY THE REVENUE HAS NO MERIT. IT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER 2011. SD/- SD/- (T R SOOD) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI DATED 21 ST SEPTEMBER 2011 SALDANHA COPY TO: 1. SHRI VIJAY CHATURVEDI FLAT NO.10-A LOVELY ROSE APARTMENT OPP ISKON TEMPLE JUHU ROAD MUMBAI 400 049 2. ACIT CIRCLE 2 THANE 3. CIT-1 THANE 4. CIT(A)-II THANE 5. DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT MUMBAI