O R D E R
Per George Mathan :
These are six appeals filed by the assessee against the order of ld. Commissioner of Income Tax (Appeals)-XIV, Kolkata in Appeal Nos. 377 to 382/CIT(A)-XIV/KO L/10-11 dated 29.06.2012 for the assessment years 2003-04 to 2008-09.
2. Shri Rajendra Nath Barik, Advocate, appeared on behalf of the assessee and Shri A. K. Maitra , JCIT, Sr. D.R. represented on behalf of the Revenue.
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3. At the beginning of the Bench, ld. Advocate on behalf of the assessee requested for adjournment through a letter signed by one of the Mutwallis Shri Feroze Belal. In the adjournment request, the assessee is requesting for an adjournment sine die. However, before the Bench ld. Counsel , who has appeared, requested that adjournment may be granted til l 5 th
of March, 2014. Ld. Counsel also brought to our attention that the appeal is posted as per the directions of the Hon'ble Jurisdictional High Court of Kolkata as per the Writ order in G.A. No. 663 of 2013 in Writ Petition No. 1007 of 2012 dated 28.01.2014 and the copy of which was served on the Tribunal on 24.02.2014 through a letter from one Shri Feroze Belal.
4. After perusal of the order of the Hon'ble jurisdictional High Court it was informed to the ld. Counsel that the Hon'ble High Court had directed early disposal of the appeals within three weeks from the date of communication of the order and after giving opportunity of hearing to the petitioners, by preponing the date. Hon'ble High Court has also directed that the Hon'ble High Court is to be informed on 6 th
of March, 2014 as to the fate of these appeals . It was then informed to the ld . Counsel who appeared that adjournment of al l these six appeals to 5 th
of March, 2014 would be practically difficult in so far as there are already a number of other appeals posted on that date and the Tribunal would not be in a position to pass orders on the impugned appeals within one day. He was then requested to show his Vakalatnama in respect of these appeals to appear before the Tribunal . He mentioned that he did not have the Vakalatnama. Despite this , this Tribunal requested the Ld. Counsel to represent his case on merits i f he so desires. At this point, ld. Counsel said "You may pass the order on merits". This being so, these appeals are being disposed of on merits .
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5. In reply, ld. D.R. submitted that sine die adjournment has been sought and there is a direction from the Hon'ble High Court, the same should be disposed of .
6. We have considered the rival submissions. The prayer for adjournment sought by the assessee is denied. All the appeals of the assessee are being disposed of as per the directions of the Hon'ble Jurisdictional High Court, and also considering the plea of ld. Counsel to dispose of the appeals on merits , if adjournment sought by him was not granted. A perusal of the assessment order in the present case more so for the assessment year 2003-04 clearly shows that the Assessing Officer has brought out the issue of the Mutwalli allowance being 10% of the gross receipts of the Estates and that the three Mutwallis are interested persons and consequently the payment to the Mutwall is is in violation of the provisions of section 13(3) of the Act. The Assessing Officer has also categorically brought out that the property being six storied building bearing number 54/2, Rafi Ahmed Kidwai Road, Kolkata was owned by the assessee Wakf and the sixth floor of the said building was used for the residential purpose of the Mutwallis, who were direct descendants of the author of the Trust . The Assessing Officer has also brought out the details of the rent receipts in respect of the various floors of the said building and have also shown that no rent having been paid by the Mutwallis , which is fair and reasonable , there is a clear violation of the provisions of section 13 of the Income Tax Act . Consequently he has reworked the total income of the assessee. A perusal of the order of the ld. CIT(Appeals) in the present case also clearly shows that even before the ld. CIT(Appeals) adjournment had been sought repeatedly and the ld. CIT(Appeals) left with no other alternative has decided the appeals on merits. Even before us, no specific submission to dislodge the finding of facts as has been brought out by the Assessing Officer has been made even before us.
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7. Even though there are directions of the Hon'ble Jurisdictional High Court for early disposal of these appeals, adjournment are being sought. The present adjournment is also on the ground that one of the Advocates that the assessee wishes to engage, is pre-occupied in the Supreme Court of India. However, a perusal of the order of the Hon'ble Jurisdict ional High Court shows that it has been prayed before the Hon'ble High Court that despite orders for early disposal of the appeals passed by the Hon'ble High Court adjournments are sought by the assessee and the assessee has assured the Hon'ble Court that they would cooperate with the Tribunal and shall not seek any unnecessary adjournment. This prayer having been made before the Hon'ble High Court, again, has been violated by seeking adjournment. Section 13(2)(b) of the Act, is a specific provision which applies when property of a Trust is used by trustees and/or other interested persons, which result in an unjust enrichment of such persons to the deprivation of the Trust. We are alive to the fact that Mutwallis were appointed by Hon'ble Jurisdictional High Court. But this will not in our opinion oust the application of Section 13 of the Act. Violation of Section 13 has been clearly brought out by the lower authorities. Such violation having not been corrected nor shown to be wrongly invoked, nor the facts as enumerated by the ld. A.O. having not been shown to be wrong or perverse, the addition as made by the Assessing Officer and as confirmed by the ld. CIT(Appeals) is found to be on the right footing and does not call for any interference.
8. In the result , appeals filed by the assessee stand dismissed Order pronounced in the open Court on 3 rd
day of March, 2014. Sd/- Sd/-
Abraham P. George George Mathan (Accountant Member) (Judicial Member) Kolkata, the 3rd
day of March, 2014
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Copies to : (1) Panchi Bibi Wakf Estate, Feroze Belal (Mutwalli) ,
54/2, Rafi Ahmed Kidwai Road, 6 th
Floor, P .O. & P.S. - Park Street, Kolkata-700 016
(2) Deputy Director of I ncome Tax (E)-II , Kolkata,
54/1, Rafi Ahmed Kidwai Road,
Kolkata-700 016
(3) Commissioner of Income-tax (Appeals)
(4) Commissioner of Income Tax
(5) The Departmental Representative
(6) Guard File By order
Assistant Registrar Income Tax Appellate Tribunal Kolkata benches, Kolkata Laha/Sr. P.S.
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