BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND TANEJA, SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER I.T.A. No.2965 & 2966/Mum/2013 ( Assessment Year : 2006-07) Ms.Rakhi Sawant, Income Tax Officer 11(1)(3), , M/s Chandravijay Shah and Vs. Room No. 438, 4 floor, ht Co., Aayakar Bhavan, Chartered Accountant, M K Road, 401, Rainbow Chambers, Mumbai-400020. S V Road, Nr. MTNL, Kandivili (W), Mumbai-400067 (Appellant) .. ( Respondent) PAN/GIR No. : AUMPS5377C Appellant by None Respondent by Shri K Srivastava Date of Hearing : 28.09.2016 Date of Pronouncement : 28.09.2016 O R D E R Per Sanjay Garg, Judicial Member: above captioned appeals have been preferred by assessee have been heard together and are being disposed of by this common order, for 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 3. This appeal has been preferred by assessee against order of Commissioner of Income Tax agitating revision of assessment order dated 24.12.2008 by invoking provisions of section 263 of Income Tax Act, 1961. None has come present on behalf of assessee. appeal is time barred by 704 days. perusal of order reveals that this appeal was filed by assessee on 17.4.2013 and case was posted for hearing on 22.7.2014. However, on 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 assessee and it was ordered to issue notice to assessee by registered post. case was fixed for hearing on 18.3.2015 again on 18.3.2015 no one appeared on behalf of assessee and case was adjourned to 2.7.2015. Thereafter case was fixed for 29.10.2015 on which date counsel for assessee appeared and requested for adjournment vide letter dated 26.10.2015. However, on next date of hearing i.e. on 11.2.2016 again no one appeared on behalf of assessee. It was again directed to issue notice by RPAD. On next date of hearing i.e. 9.6.2016 case could not be heard for want of time and both parties were informed regarding next date of hearing i.e. 14.6.2016. However, again on 14.6.2016 nobody appeared for assessee. It was noticed by Bench since appeal was pending since 17.4.2013 hence last opportunity was granted to assessee and 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 assessee s counsel to inform about next date of hearing. Registry accordingly issued notice by RPAD and noting has been made in order-sheet that counsel of assessee was informed on telephone about next date of hearing. However, on next date of hearing i.e. 26.6.2016, matter could not be heard for want of time and both parties were informed next date of hearing i.e. 28.6.2016. On 28.6.2016, counsel of assessee requested for adjournment and at his request case was adjourned to next date i.e.29.6.2016 On 29.6.2016, case could not be heard for want of time and both parties were informed about next date of hearing i.e. 28.9.2016. Today again, no one appeared before us on behalf of assessee. It is appeal of assessee and assessee is supposed to carefully pursue and prosecute it. It is not duty of this Tribunal to issue notice each and every time to assessee to come and appear in her own appeals, when next date of hearing is duly informed in open court or through Notice Board whenever Bench did not function. However, perusal of above sequence of dates of hearing reveals that assessee/her representative have always been reluctant to attend case and all time they have to be called upon either by notice through RPAD and even through telephone to counsel. We do not think it fit to further adjourn matter and hence proceed to decide matter ex-parte of assessee. 4 ITA No.2965 & 2966/ Mum/2013 4. At outset, ld. DR has brought to our notice that appeal is barred by 704 days. application for condonation of delay has been placed on record, wherein assessee herself has admitted that appellate order of ld.CIT(A) was served upon her on 15.3.2011 and that last date for filing appeal before Tribunal was 15.5.2011. It has further been pleaded that her Chartered Accountant Shri Rajesh Saluja who had represented her case in proceedings before lower authorities did not co-operate with her in handling appeal before this Tribunal. That she thereafter collected all relevant papers and handed over to new representative. Her new representative after getting entire papers has filed present appeal. 5. ld. DR, on other hand, has relied upon following case laws and has pleaded that delay cannot be condoned unless and until 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). 6. From above pleadings, we do not find any plausible reasons to justify long delay of 704 days for filing present appeal. Even though earlier Chartered Accountant did not co-operate with her, yet, she required to file appeal in reasonable time. delay of few days for non co-operation of Authorized Representative/CA can be understood, but 5 ITA No.2965 & 2966/ Mum/2013 it has not been explained as to what prevented assessee to engage another representative for period of above two years. Even explanation tendered by assessee is general and vague. assessee has failed to explain any justifiable reasons for delay of 704 days in filing appeal before this tribunal. Therefore, we do not find any merit in application for condonation of delay and same is therefore dismissed. Accordingly, this appeal of assessee is dismissed being barred by limitation. 7. Now coming to second appeal of assessee bearing ITA No.2965/Mum/2013. ITA No.2965/Mum/2013 8. This appeal has been preferred by assessee against order of ld. CIT(A) dated 11.2.2013 in relation of assessment proceedings carried under section 143(3) read with section 263 of Act. assessee in this appeal has taken following grounds : 1. learned Commissioner of Income Tax (Appeals) - 3, Mumbai ("CIT(A) erroneously confirmed Addition of Rs.8,00,000 paid by Appellant to Super Cassettes Industries Limited towards Video Production Charges without verifying and enquiring whether, in view of Explanation (i)(l) to section 194C or 2nd Proviso to section 194J of Act or otherwise, Appellant who is Individual was at all covered by Provisions of section 44AB of Act and consequentially whether TDS Provisions were at all applicable to her in current financial year 2005-2006 (AY 2006- 2007), year under Appeal. 2. learned CIT(A) failed to appreciate that there was total contradiction in views of CIT and AO as regards applicability of specific TDS Provision to Rs.8,00,000 paid by Appellant to Super Cassettes Industries Limited towards Video Production Charges and so is case with CJT(A), leading to conclude that none of TDS Provisions, either section 194C or 6 ITA No.2965 & 2966/ Mum/2013 section 194J, were applicable to said Payment. In absence of clarity about which specific TDS Provision applies to Transaction, Addition is uncalled for and invalid ab initio. 3. learned CIT(A) failed to appreciate that Appellant is Professional and was consistently following Cash Accounting System and erroneously confirmed Addition of Rs.8,00,000 paid by Appellant to Super Cassettes Industries Limited towards Video Production Charges. 4. learned CIT(A) failed to appreciate that Appellant paid entire amount of Rs.8,00,000 to Super Cassettes Industries Limited towards Video Production Charges and no Payment whatsoever was made to anyone else including to proposed Director of said Video Album, Mr Shareen Mantry and there was no nexus between Payment and Name of Director. said Company had all rights, including selection of Director of said Video Album as stated in its Letter dated 16.07.2005 and Appellant had no choice of selection in matter whatsoever. 5. learned CIT(A) failed to appreciate that Appellant has established veracity of Payment of Rs.8,00,000 to Super Cassettes Industries Limited towards Video Production Charges by producing all relevant supporting Documents. 6. Since Revision Order is based on surmises, suspicion and guess work, it did not render Assessment Order under section 143(3) dated 24.12.2008 erroneous and prejudicial to interest of Revenue. 7. Appellant prays to your Honour that 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. 8. Appellant submit that each of above Grounds of this Appeal may please be considered without prejudice to one another 9. As noted above assessee from beginning has been reluctant regularly in attending proceedings before this Tribunal, in view of our reasons recorded above while deciding appeal of 7 ITA No.2965 & 2966/ Mum/2013 assessee bearing ITA No.2899/M/2013, we proceed to decide this appeal also ex-parte of assessee after hearing ld. DR. 10. As revealed from above grounds of appeal, only issue raised by assessee through grounds of appeal is relating to confirmation of addition of Rs. 8,00,000/- paid by assessee to Super Cassette Industries Limited. AO had disallowed said expenditure on account of two counts, firstly, that assessee did not deduct TDS on such payment and hence expenditure was not allowable under provisions of section 40(a)(ia) of Act. Secondly, that assessee has not established genuineness of requirement of payment for purposes of business /profession of assessee. assessee through grounds of appeal has pleaded that assessee is individual is not at all covered under section 44AB of Act and in view of clause (i)(1) to Explanation to section 194C and also in light of second proviso to section 194J, 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 Act. It has also been pleaded that payment was made to Super Cassette Industrial Ltd towards video production charges and that assessee had no control over company including selection of Director. assessee thus had pleaded that payment was made towards video production charges which was relatable to her business or profession. 11. We have heard ld.DR and also gone through impugned order. We find that in impugned order, ld.CIT(A) has not discussed 8 ITA No.2965 & 2966/ Mum/2013 about non applicability of provisions of section 194C and or 194J and has straightway applied provisions of TDS u/s 40(a)(ia) of Act. Even regarding genuineness/requirement of payments for assessee s profession, order of ld.CIT(A) is not speaking one. In our view, entire matter is required to be looked into afresh by ld. CIT(A). In view of this, impugned order of Ld. CIT(A) is set aside and appeal of assessee is restored back to file of ld. CIT(A) to decide same afresh after providing opportunity of being heard to assessee. assessee is also directed to co-operate with ld.CIT(A) in disposing of appeal expeditiously. assessee is also directed to file necessary documentary evidence to prove her case. In view of this, appeal of assessee is allowed for statistical purposes. 12. In result, appeal filed by assessee in ITA No.2965/M/2013 is dismissed and appeal No.2966/M/2013 is allowed for statistical purposes. above order was pronounced in open court on 28th Sept, 2016. 28 Sept,2016 Sd/- Sd/- Sd/- Sd/- (ASHWANI TANEJA) TANEJA) (SANJAY GARG) GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: 28 Sept,2016 SRL , Sr. PS 9 ITA No.2965 & 2966/ Mum/2013 Copy of Order forwarded to : Copy 1. Appellant 2. Respondent. 3. CIT(A)- concerned 4. CIT concerned 5. DR, ITAT, Mumbai concerned 6. Guard file. BY ORDER, (Asstt. Registrar) ITAT, Mumbai Rakhi Sawant v. Income Tax Officer 11(1)(3), Mumbai