RAKHI A SAWANT,MUMBAI vs. ITO 11(1)(3), MUMBAI

However, none appeared on behalf of the assessee and it was ordered to issue notice to the assessee by a registered post. The case was fixed for hearing on 18.3.2015 again on 18.3.2015 no one appeared on behalf of the assessee and the case was adjourned to 2.7.2015. Thereafter the case was fixed for 29.10.2015 on which date the counsel for the assessee appeared and requested for adjournment vide letter dated 26.10.2015.

However, on the next date of hearing i.e. on 11.2.2016 again no one appeared on behalf of the assessee. It was again directed to issue notice by RPAD. On the next date of hearing i.e. 9.6.2016 case could not be heard for want of time and both the parties were informed regarding the next date of hearing i.e. 14.6.2016. However, again on 14.6.2016 nobody appeared for the assessee. It was noticed by the Bench since the appeal was pending since 17.4.2013 hence last opportunity was granted to the assessee and the case was fixed for hearing on 27.6.2016. It was also directed to issue notice by RPAD and also through telephone to the assessee’s counsel to inform about the next date of hearing. The Registry accordingly issued notice by RPAD and a noting has been made in the order-sheet that the counsel of the assessee was informed on telephone about the next date of hearing. However, on the next date of hearing i.e. 26.6.2016, the matter could not be heard for want of time and both the parties were informed the next date of hearing i.e. 28.6.2016. On 28.6.2016, the counsel of the assessee requested for adjournment and at his request the case was adjourned to the next date i.e.29.6.2016 On 29.6.2016, the case could not be heard for want of time and both the parties were informed about the next date of hearing i.e. 28.9.2016. Today again, no one appeared before us on behalf of the assessee. It is the appeal of the assessee and the assessee is supposed to carefully pursue and prosecute it. It is not the duty of this Tribunal to issue notice each and every time to the assessee to come and appear in her own appeals, when the next date of hearing is duly informed in open court or through Notice Board whenever the Bench did not function. However, a perusal of the above sequence of dates of hearing reveals that the assessee/her representative have always been reluctant to attend the case and all the time they have to be called upon either by notice through RPAD and even through telephone to the counsel. We do not think it fit to further adjourn the matter and hence proceed to decide the matter ex-parte of the assessee.

4. At the outset, the ld. DR has brought to our notice that the appeal is barred by 704 days. An application for condonation of delay has been placed on record, wherein the assessee herself has admitted that the appellate order of the ld.CIT(A) was served upon her on 15.3.2011 and that the last date for filing the appeal before the Tribunal was 15.5.2011. It has further been pleaded that her Chartered Accountant Shri Rajesh Saluja who had represented her case in the proceedings before the lower authorities did not co-operate with her in handling the appeal before this Tribunal.

That she thereafter collected all the relevant papers and handed over to new representative. Her new representative after getting the entire papers has filed the present appeal.

A) (1994) 92 STC 165, 167 (Punjab); B) DCM Ltd V/s State of Tamil Nadu (1995) 96 STC 263, 264 (Madras); C) Madhu Dadha V/s ACIT (317 ITR 458) (Mad); D) Union of India V/s Tata Yodogawa Ltd 1988 (38) ELT 739; and E) J B Advani and Co Ltd V/s CIT (1969) 72 ITR 395 (SC).

8. This appeal has been preferred by the assessee against the order of the ld. CIT(A) dated 11.2.2013 in relation of the assessment proceedings carried under section 143(3) read with section 263 of the Act.

The assessee in this appeal has taken the following grounds :

“1. The learned Commissioner of Income Tax (Appeals) - 3, Mumbai ("CIT(A) erroneously confirmed the Addition of Rs.8,00,000 paid by the Appellant to Super Cassettes Industries Limited towards the Video Production Charges without verifying and enquiring whether, in view of the Explanation (i)(l) to section 194C or 2nd Proviso to section 194J of the Act or otherwise, the Appellant who is an Individual was at all covered by the Provisions of section 44AB of the Act and consequentially whether the TDS Provisions were at all applicable to her in the current financial year 2005-2006 (AY 2006- 2007), the year under Appeal.

2. The learned CIT(A) failed to appreciate that there was total contradiction in the views of the CIT and AO as regards the applicability of specific TDS Provision to Rs.8,00,000 paid by the Appellant to Super Cassettes Industries Limited towards the Video Production Charges and so is the case with CJT(A), leading to conclude that none of the TDS Provisions, either section 194C or section 194J, were applicable to the said Payment. In the absence of clarity about which specific TDS Provision applies to a Transaction, the Addition is uncalled for and invalid ab initio.

3. The learned CIT(A) failed to appreciate that the Appellant is a Professional and was consistently following Cash Accounting System and erroneously confirmed the Addition of Rs.8,00,000 paid by the Appellant to Super Cassettes Industries Limited towards the Video Production Charges.

5. The learned CIT(A) failed to appreciate that the Appellant has established the veracity of Payment of Rs.8,00,000 to Super Cassettes Industries Limited towards the Video Production Charges by producing all relevant supporting Documents.

6. Since the Revision Order is based on surmises, suspicion and guess work, it did not render the Assessment Order under section 143(3) dated 24.12.2008 erroneous and prejudicial to the interest of the Revenue.

7. The Appellant prays to your Honour that the Order under section 263 being bad in law be quashed, vacated and cancelled or alternatively prays to grant such relief as your Honour may deem fit.