Loading judgment…
No AI summary yet for this case.
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.
First, we take up assessee’s appeal bearing .
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 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.
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 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.
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.
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.
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.
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 assessee bearing 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 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.
In the result, the appeal filed by the assessee in 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