Income Tax Appellate Tribunal - Mumbai
Dolphin Offshore Enterprises (I) Ltd , vs Assessee on 20 April, 2015
आयकर अपील य अ धकरण "डी" यायपीठ मंब ु ई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI ी आय.पी. बंसल, या यक सद य एवं ी संजय अरोड़ा, लेखा सद य के सम ।
BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA, AM व वध आवेदन सं./MA No. 352/Mum/2014 (Arising out of IT(SS)A No. 680/Mum/2003) (बा धत अव ध / Block Period: 01.04.1990 to 16.01.2001) Dolphin Offshore Enterprises (I) Ltd. Dy. CIT, Central Circle-40, 1001, Raheja Centre, बनाम/ Old CGO Building, 214, Nariman point, Mumbai-400 021 Vs. Annexe, Room No. 606, M. K. Road, Mumbai - 400 020 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACD 0522 D (Applicant) : (Respondent) Applicant by : Shri M. Subramanian Respondent by : Shri Vijay Kumar Bora सनु वाई क तार ख / : 20.02.2015 Date of Hearing घोषणा क तार ख / : 20.04.2015 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:
This is a Miscellaneous Petition by the Assessee, directed against the Order u/s. 254(1) of the Income Tax Act, 1961 ('the Act' hereinafter) by the Tribunal dated 23.12.2011, disposing, by way of allowing, the Revenue's appeal contesting the order by the first appellate authority disposing the assessee's appeal against its assessment u/s.158BC r/w s. 143(3) of the Act for the block period 01.04.1990 to 16.01.2001 consequent to a search u/s.132 of the Act on the assessee.
2. The impugned order is an ex-parte order, i.e., qua the assessee. In fact, the first appellate authority having partly allowed the assessee's appeal, both the assessee and the Revenue were in appeal before the Tribunal. The assessee's appeal, however, as per the chronology of events listed by the assessee at Exhibit-B to the instant petition, came to be decided by the tribunal on 15.03.2007, while the assessee's appeal came to be heard only subsequently. The assessee-respondent, however, did not attend the same despite service of notices of hearing, nor moved any adjournment application. The tribunal, after noting the submissions by the ld. Departmental Representative (DR), decided the matter thus:
"8. We are in agreement with the aforesaid submissions of the Ld. Departmental Representative. In the absence of any arguments/ submission on behalf of the assessee, we allow the grounds raised by the Revenue."
The same, it is contended by the assessee per its instant petition, does not meet the detailed reasons and findings issued by the ld. CIT (A) in allowing the assessee's appeal on each of the two grounds raised in appeal by the Revenue, i.e., vide para 6.0 to 6.20 (pages 5-15) and paras 9 to 9.21 (pages 18-27) qua the first and second ground respectively, also relying on the following case law:
(a) Shivsagar Veg. Restaurant vs. Asst. CIT [2009] 317 ITR 433 (Bom);
(b) Rafiq and Another vs. Munshilal and Another, reported at AIR 1981 Supreme Court 1400; and
(c) Executors of the Estate of Keshavdev, R. Ganeriwala vs. Income Tax Officer, in Income Tax Appeal No.1472 of 2007 dated 15.03.2008.
3. We have heard the parties, and perused the material on record.
We are unable to persuade ourselves to agree with the ld. counsel with regard to the application of the decisions in the cases of Rafiq and Another vs. Munshilal and Another (supra) and Executors of the Estate of Keshavdev, R. Ganeriwala (supra). The reason is simple. The assessee had been afforded ample opportunity to present its case, as noted by the tribunal vide paras 2 and 3 of its order, with the last three notices of hearing having been in fact caused to be served on it through the Department itself, specifying their dates. However, none presented nor even an adjournment motion moved by or on behalf of the assessee. It is only when the assessee as a client properly briefs his counsel, paying him his fees, and generally does all he could under the circumstances that he is entitled to believe that the matter shall be pursued by his counsel and rest contend in the 2 thought that the matter shall be duly represented by the latter. As observed by the tribunal vide para 2 of its order, and as stated earlier, even as much as the Vakalatnama was not been filed, with each of the several notices being served on the assessee itself, who therefore was in the know that the matter is not been represented before the tribunal.
The decision in the case of Shivsagar Veg. Restaurant (supra), however, would apply in the facts of the case. The tribunal does not, as apparent from the operating part of this order, reproduced hereinabove, state its reasons in accepting the Revenue stand in preference to that of the first appellate authority, particularly considering the detailed findings and reasons issued by the latter. There is no reference to the order by the Assessing Officer and/or the first appellate authority. It is therefore not even clear if what stands stated in the submissions by the ld. DR, reproduced by the tribunal at para 7 of its order, i.e., prior to the operating part of its order, is a true and correct representation of the respective cases of both the sides. In that sense it is a non speaking order. In fact, the submissions made by the ld. DR also do not form part of the record, and which is intriguing and, in the very least, not understandable.
Under the circumstances, in our view, the impugned order is inflicted with a mistake apparent from the record in-as-much as the tribunal has failed to discharge its duty in disposing the matter judicially by not giving its reasons, as held mandatory by the hon'ble jurisdictional High Court in Shivsagar Veg. Restaurant (supra). We are conscious that we are in rectification proceeding, the scope of which is severely limited, i.e., as against appellate or review proceedings. So, however, perusal of the operating part of the impugned order makes it patently clear that the tribunal merely endorsed the submissions of the ld. DR, without stating their reasons, so that there has been a violation of a basic rule of natural justice, as explained by the hon'ble high court in the said case.
We accordingly, are of the considered view that the assessee's petition merits acceptance. We may not, we may add, be construed as having issued any observations qua the merits of the case, which the parties shall address at the time of hearing of the instant appeal, which is thus recalled for being adjudicated afresh by the tribunal after allowing reasonable opportunity of the parties to state their case in the matter. We decide accordingly.
34. In the result the assessee's application is allowed.
Order pronounced in the open court on April 20, 2015 Sd/- Sd/-
(I. P. Bansal) (Sanjay Arora)
या यक सद य / Judicial Member लेखा सद य / Accountant Member
मुंबई Mumbai; दनांक Dated : 20.04.2015
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Applicant
2. यथ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai
6. गाड फाईल / Guard File
आदे शानुसार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt. Registrar)
आयकर अपील य अ धकरण, मंब
ु ई / ITAT, Mumbai
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