Income Tax Appellate Tribunal - Mumbai
Anubhav Sinha Production Pvt. Ltd., ... vs Ito (Tds) - 1(2), Mumbai on 30 August, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL "A", BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM ITA No.2856/Mum/2017 (Assessment Year :2003-04) ITA No.2858/Mum/2017 (Assessment Year :2004-05) ITA No.2859/Mum/2017 (Assessment Year :2005-06) ITA No.2860/Mum/2017 (Assessment Year :2006-07) M/s. Anubhav Sinha Production Pvt. Ltd., Vs. ITO (TDS)-1(2), 714, The Summit Business Bay Level-7 8 t h Floor, Room No.805 Opp. Cinemax Charni Road (W) Off. Andheri Kurla Road, Andheri (E) Mumbai - 400 053 Mumbai - 400 093 PAN/GIR No.AABCA8998H Appellant) .. Respondent) Assessee by Shri Viraj Mehta (AR) Revenue by Shri Chaitanya Anjaria (DR) Date of Hearing 30/08/2018 Date of Pronouncement 30/08/2018 आदे श / O R D E R PER R.C.SHARMA (A.M):
These are the appeals filed by the assessee against the order of CIT(A)-12, Mumbai dated 30/04/2014 for A.Y.2003-04 to 2006-07 in the matter of order passed u/s.201(1) and 201(1A) of the IT Act.
2. All these appeals are delayed by 1018 days. With regard to the merit, assessee is aggrieved for holding the assessee in default u/s. 201(1) & 201(1A) in respect of deduction of tax at source. Assessee has 2 ITA No.2856/Mum/2017 and other appeals M/s. Anubhav Sinha Production Pvt. Ltd., also filed reasons for delay in filing the appeal. We had carefully gone through the reasons so given, but do not find any merit in the same, in so far as assessee has not explained as to why there was abnormal delay in filing the appeal. Moreover, from the record we also found that assessee was very casual even before the CIT(A) and AO. Inspite of giving so many opportunities, nobody appeared on behalf of the assessee before the CIT(A). The CIT(A) precisely observed as under:-
"In this case, the appellant did not chose to avail of opportunities in the appellate proceedings, which entails a conclusion that the appellant had no evidence or say or explanation against the order of the AO. In case of . tax evasion, sometimes compliance is more detrimental than non-compliance because compliance can lead to more investigation or more points to be explained whereas non-compliance lead to mere penalty u/s.271(l)(b) and ex-parte decision on the basis of available material only. It also brightens chances against levy of penalty, if any. Ex-parte assessment or other order has its own inherent limitations as to its scope and extent. Hence, the appellant should not be allowed to be enriched or benefited unjustly for act of own wrongs i.e. non-compliance. The Hon'ble Delhi High Court delivered a decision on 02.09.2011 in ITA No.798/2009 in the case of CXT vs. &old Leaf Capital Corporation Ltd that a negligent assessee should not be given many opportunities just because that quantum of amount involved is high. Necessary course of action is to draw an adverse inference, otherwise it would amount to give premium to the assessee for his negligence. When the assessee is non-cooperative, it can naturally be safely concluded that the assessee did not want to adduce evidence as it would expose falsity and non-genuineness (Reference : www.taxguru.in). In this regard, decision of the Hon'ble Bombay High Court in the case of M/s.Chcmipol vs. Union of India (vide order dated 12.12.2009) clearly states that every court or judicial body or authority, which has a duty to decide a Us between two parties, inherently possesses the power to dismiss the case in default. For ease of reference, the; relevant extract of the judicial pronouncement rendered by the Hon'ble Bombay High Court in the said case is reproduced below :-
(i).....
(ii) While not inclined to depart from the view taken by the two High Courts, reference must be made to Sunderlal vs. Nandramdas AIR 1958 MP 260 where it was observed that though the Act does not give any 3 ITA No.2856/Mum/2017 and other appeals M/s. Anubhav Sinha Production Pvt. Ltd., power of dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses. This was approved in Dr.P.Nalia Thampy vs. Shankor 1984 (5upp) SCC 631. In New India Assurance vs. Srinivasan (2000) 3 SCC 242, it was held that every court or judicial body or authority, which has a duty to decide a Us between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi judicial body. In the absence of the complainant, therefore, the court will be will within the jurisdiction to dismiss the complaint for non prosecution.
(iii) Accordingly, though the Rule conferring power on the Tribunal has been struck down, one cannot altogether lose sight of the rule that every court or tribunal has an inherent power to dismiss a proceeding for non prosecution when the petition/appellant before it does not wish to prosecute the proceeding. In such a situation, unless the statute clearly requires the court or tribunal to hear the appeal / proceeding and decide it on merits it can dismiss the appeal / proceeding for non-
prosecution. The powt must be exercised judiciously and taking into consideration all the facts and circumstances of the case. "
2.1 The Hon'ble High Court of Madhya Pradesh in the case of Tukojirao Holkar vs. CWT 223 ITR 480 held that "// the party, at whose instance, the reference is made at, fails-to appear at hearing... the court is not bound to answer the reference. ''Similarly, Their Lordships in the case of CTT vs. B.N.Bhattachrya 118 ITR 461 ^relevant pages 477 &
478) had held that "appeal does not mean merely filing of appeal but effectively pursuing it". Recently, the Hon'ble ITAT, Delhi [vide order dated 19.12.2011 in ITA No.2006/Del/2011] in the case of Whirlpool India Ltd vs. DOT had dismissed the appeal for not attending the hearing, inferring that assessee is not interested in prosecuting of appeal. Thereafter, in another decision in the case of Chadha Finlease Ltd vs. ACIT [vide order dated 20.12.11 in ITA No.3013/Del/2011] f the Hon'ble ITAT dismissed the appeal for non-attending the hearing, inferring that assessee is not interested in pursuing the appeal.
3. In light of the above facts and judicial pronouncements discussed hereinabove, the appeal filed by the appellant is liable to be dismissed.
On perusal of the order of the A.O., it is evident that even during the assessment proceedings, the appellant was given adequate opportunities of being heard but the appellant could not establish its 4 ITA No.2856/Mum/2017 and other appeals M/s. Anubhav Sinha Production Pvt. Ltd., case. For ease of reference, para 2 of the impugned order is reproduced hereunder for ^Appreciation of facts;
"2. In connection with the above proceedings, various correspondences were made with the assessee. Finally, show ' cause-cum-letters dated 27.12.2010, 11.01.2011, 30.1.2011, 11.2.2011 25.2.2011, 4.3.2011 were sent by speed post which were acknowledged by the assessee. However, nobddy'-x attended nor any details / explanation was furnished by the assessee. Therefore, in the interest of natural justice, one. A last opportunity was given to the assessee vide.., letter 17.3.2011 which was duly served on the assessee. In response to this letter, assessee's representative M/s.I.R.Shetty & Co., vide its letter dt. 18.3.2011 has requested for adjournment of the case till first week of April 2011. In the copy of the AR's letter itself, an adjournment of hearing to 21.3.2011 was given and also informed the fact that the matter is getting barred by limitation as on 31.3.2011. However, to this adjournment also, nobody attended nor furnished any details. Since the matter is getting barred by limitation, I have no option but to complete the proceedings on the basis of details available on record."
[emphasis supplied] Thus, before the A.O., the appellant could not furnish necessary details / evidences and the A.O. was compelled to pass the impugned order. This fact also establishes that the appeal filed by the appellant lacks merit. Having regard to all these facts as a whole, the appeal filed by the appellant deserves to be dismissed and is done so."
3. From the record we also found that even before the AO, assessee was given adequate opportunity to rebut the findings recorded during survey u/s.133A of the Act, but inspite of giving so many opportunities by the AO, nobody attended nor any details / explanation was furnished by the assessee.
4. We had also carefully gone through the judicial pronouncements referred by learned AR with regard to delay in filing appeal and condonation thereof, however the judicial pronouncements are not applicable to the facts of the instant case, wherein assessee not only 5 ITA No.2856/Mum/2017 and other appeals M/s. Anubhav Sinha Production Pvt. Ltd., grossly failed to appear before CIT(A), but also before the AO. Even the appeal filed before the Tribunal is delayed for more than 33 months without any reason much less than a cogent reason.
5. In the result, all the appeals are dismissed.
Order pronounced in the open court on this 30/08/2018
Sd/- Sd/-
(AMARJIT SINGH) (R.C.SHARMA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai; Dated 30/08/2018
Karuna Sr.PS
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT
DR, ITAT, Mumbai
5.
BY ORDER,
6. Guard file.
सत्यापित प्रतत //True Copy//
(Asstt. Registrar)
ITAT, Mumbai