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Before: SHRI SHRI SANJAY GARG, SHRI SANJAY GARG & SHRI ASHWANI TANEJA SHRI SHRI ASHWANI TANEJA, , ,
आयकर आयकर अपीलीय आयकर आयकर अपीलीय अपीलीय अिधकरण अपीलीय अिधकरण अिधकरण, , , , मुंबई अिधकरण मुंबई मुंबई �यायपीठ मुंबई �यायपीठ �यायपीठ “डी” मुंबई �यायपीठ मुंबई मुंबई मुंबई BEFORE BEFORE SHRI BEFORE BEFORE SHRI SHRI SANJAY GARG, SHRI SANJAY GARG, SANJAY GARG, JUDICIAL MEMBER SANJAY GARG, JUDICIAL MEMBER JUDICIAL MEMBER AND JUDICIAL MEMBER AND AND AND SHRI SHRI ASHWANI TANEJA SHRI SHRI ASHWANI TANEJA ASHWANI TANEJA, , , , ACCOUNTANT MEMBER ASHWANI TANEJA ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No.2965 & 2966/Mum/2013 (िनधा�रण वष� / / / / Assessment Year : 2006-07) Ms.Rakhi Sawant, बनाम बनाम/ बनाम बनाम Income Tax Officer 11(1)(3), , M/s Chandravijay Shah and Vs. Room No. 438, 4th floor, Co., Aayakar Bhavan, Chartered Accountant, M K Road, 401, Rainbow Chambers, Mumbai-400020. S V Road, Nr. MTNL, Kandivili (W), Mumbai-400067 (अपीलाथ� /Appellant) .. (��यथ� / Respondent) �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AUMPS5377C अपीलाथ� ओर से / Appellant by None ��यथ� क� ओर से/Respondent by Shri A K Srivastava सुनवाई क� तारीख / Date of Hearing : 28.09.2016 घोषणा क� तारीख /Date of Pronouncement : 28.09.2016 आदेश आदेश / O R D E R आदेश आदेश / O R D E R / O R D E R / O R D E R Per Sanjay Garg, Judicial Member: The above captioned appeals have been preferred by the assessee have been heard together and are being disposed of by this common order, for the sake of convenience. 2. First, we take up assessee’s appeal bearing ITA No.2966/Mum/2013.
2 ITA No.2965 & 2966/Mum/2013
ITA No.2966/Mum/2013
This appeal has been preferred by the assessee against the order
of Commissioner of Income Tax agitating the revision of the assessment
order dated 24.12.2008 by invoking the provisions of section 263 of the
Income Tax Act, 1961. None has come present on behalf of the assessee.
The appeal is time barred by 704 days. A perusal of the order reveals that
this appeal was filed by the assessee on 17.4.2013 and the case was
posted for hearing on 22.7.2014. However, on the said date Bench did not
function.The case then posted on 11.11.2014 and then for 16.2.2015.
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
3 ITA No.2965 & 2966/Mum/2013
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 ITA No.2965 & 2966/Mum/2013
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.
The ld. DR, on the other hand, has relied upon the following case
laws and has pleaded that the delay cannot be condoned unless and until
the cause for condonation of delay is explained.
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).
From the above pleadings, we do not find any plausible reasons to
justify the long delay of 704 days for filing the present appeal. Even
though earlier Chartered Accountant did not co-operate with her, yet, she
required to file appeal in a reasonable time. The delay of few days for non
co-operation of the Authorized Representative/CA can be understood, but
5 ITA No.2965 & 2966/Mum/2013
it has not been explained as to what prevented the assessee to engage
another representative for a period of above two years. Even the
explanation tendered by the assessee is general and vague. The assessee
has failed to explain any justifiable reasons for the delay of 704 days in
filing the appeal before this tribunal. Therefore, we do not find any merit
in the application for condonation of delay and the same is therefore
dismissed. Accordingly, this appeal of the assessee is dismissed being
barred by limitation.
Now coming to the second appeal of the assessee bearing ITA
No.2965/Mum/2013.
ITA No.2965/Mum/2013
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.
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
6 ITA No.2965 & 2966/Mum/2013
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.
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.
The learned CIT(A) failed to appreciate that the Appellant paid entire amount of Rs.8,00,000 to Super Cassettes Industries Limited towards the Video Production Charges and no Payment whatsoever was made to anyone else including to the proposed Director of the said Video Album, Mr Shareen Mantry and there was no nexus between Payment and Name of Director. The said Company had all the rights, including selection of Director of the said Video Album as stated in its Letter dated 16.07.2005 and the Appellant had no choice of selection in the matter whatsoever.
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.
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.
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.
The Appellant submit that each of the above Grounds of this Appeal may please be considered without prejudice to one another”
As noted above the assessee from the beginning has been
reluctant regularly in attending the proceedings before this Tribunal, in
view of our reasons recorded above while deciding the appeal of the
7 ITA No.2965 & 2966/Mum/2013
assessee bearing ITA No.2899/M/2013, we proceed to decide this appeal
also ex-parte of the assessee after hearing the ld. DR.
As revealed from the above grounds of appeal, the only issue raised
by the assessee through the grounds of appeal is relating to confirmation
of addition of Rs. 8,00,000/- paid by the assessee to Super Cassette
Industries Limited. The AO had disallowed the said expenditure on
account of two counts, firstly, that the assessee did not deduct TDS on
such payment and hence the expenditure was not allowable under the
provisions of section 40(a)(ia) of the Act. Secondly, that the assessee has
not established the genuineness of the requirement of payment for the
purposes of business /profession of the assessee. The assessee through
grounds of appeal has pleaded that the assessee is an individual is not at
all covered under section 44AB of the Act and in view of clause (i)(1) to
the Explanation to section 194C and also in the light of second proviso to
section 194J, the assessee was not liable to deduct TDS either under
section 194C or 194J and hence no disallowance could have been made
u/s 40(a)(ia) of the Act. It has also been pleaded that the payment was
made to Super Cassette Industrial Ltd towards video production charges
and that the assessee had no control over the company including the
selection of Director. The assessee thus had pleaded that the payment
was made towards video production charges which was relatable to her
business or profession.
We have heard the ld.DR and also gone through the impugned
order. We find that in the impugned order, the ld.CIT(A) has not discussed
8 ITA No.2965 & 2966/Mum/2013
about the non applicability of the provisions of section 194C and or 194J and has straightway applied the provisions of TDS u/s 40(a)(ia) of the Act. Even regarding the genuineness/requirement of the payments for assessee’s profession, the order of ld.CIT(A) is not a speaking one. In our view, the entire matter is required to be looked into afresh by the ld. CIT(A). In view of this, the impugned order of the Ld. CIT(A) is set aside and the appeal of the assessee is restored back to the file of the ld. CIT(A) to decide the same afresh after providing opportunity of being heard to the assessee. The assessee is also directed to co-operate with the ld.CIT(A) in disposing of the appeal expeditiously. The assessee is also directed to file necessary documentary evidence to prove her case. In view of this, the appeal of the assessee is allowed for statistical purposes. 12. In the result, the appeal filed by the assessee in ITA No.2965/M/2013 is dismissed and appeal No.2966/M/2013 is allowed for statistical purposes. The above order was pronounced in the open court on 28th Sept, 2016. घोषणा खुले �यायालय म� �दनांकः 28th Sept,2016 को क� गई । Sd/ Sd/ Sd/- Sd/ Sd/ Sd/- Sd/ Sd/ (ASHWANI TANEJA ASHWANI TANEJA) ) (SANJAY GARG SANJAY GARG) ) ASHWANI TANEJA ASHWANI TANEJA ) ) SANJAY GARG SANJAY GARG ) ) लेखा सद�य / ACCOUNTANT MEMBER �याियक सद�य / JUDICIAL MEMBER मुंबई Mumbai: 28th Sept,2016 व.िन.स./ SRL , Sr. PS
9 ITA No.2965 & 2966/Mum/2013 आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to अ�ेिषत Copy of the Order forwarded to Copy of the Order forwarded to : Copy of the Order forwarded to 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�(अपील) / The CIT(A)- concerned 4. आयकर आयु� / CIT concerned 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai concerned 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, सहायक पंजीकार (Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई /ITAT, Mumbai