ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, DIBRUGARH, DIBRUGARH V. SANTOSH BAMALWA, DIBRUGARH

MA 20/GTY/2024

AI Insights

The case involves a Miscellaneous Application by the Revenue seeking to recall an order passed by the co-ordinate Bench of the Income Tax Appellate Tribunal, which had dismissed the Department's appeal and allowed the assessee's appeal. The Department contended that the Tribunal had decided on merits in the cross objection, which were not decided by the CIT (A), thus claiming an error in the Tribunal's earlier decision. The assessee's counsel argued that the Tribunal's decision was correct and supported by the facts available, and there was no apparent mistake in the order. The Tribunal, after considering the arguments and the legal provisions, dismissed the MA, upholding the original decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 315762 (ITAT-GUWAHATI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Other Referred Cases: PCIT v. Abhisar Buildwell P. Ltd. (2023) 454 ITR 212 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSIK RAY
• Assessee Lawyers: S. K. TULSIYAN

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “DB” BENCH, GUWAHTI (Through Virtual Hearing) BEFORE SHRI RAJESH KUMAR, AM AND SHRI MANOMOHAN DAS, JM MA No.20/GTY/2024 (Assessment Year:2012-13) ACIT, Circle-1, Opp. Ayakar bhawan, 2nd floor, milan nagar, dibrugarh, Assam, 786003 Vs. SANTOSH BAMALWA C/o AK Varma, Ground Floor, Mahalaya Road, Dibrugarh, Dibrugarh, Assam,786001 (Appellant) (Respondent) PAN No. AEDPB9900P Assessee by : Shri S.K. Tulsiyan, AR Revenue by : Shri Kausik Ray, DR Date of hearing: 31.01.2025 Date of pronouncement : 13.05.2025 O R D E R Per Rajesh Kumar, AM: By virtue of this Miscellaneous Application the Revenue seeks for recalling the order passed by the co-ordinate Bench in ITA No.104/GTY/2023 dated 13.12.2023. 02. The ld. DR submitted before the Bench that the co-ordinate Bench while passing the order in ITA No. 104/GTY/2023 and CO No. 34/GTY/2023 dated 13.12.2023 has dismissed the appeal filed by the Department and allowed the appeal of the assessee by observing that issues raised in the instant appeal and in the cross objection have already been adjudicated by the Tribunal in favour of the assessee in assessee’s group of cases in a combined order dated 01.09.2023 in ITA Nos. 51 to 66/GTY/2023 and CO Nos. 06 to 21/GTY/2023. The ld. Page | 2 MA No.20/GTY/2024 Santosh Bamalwa; A.Y. 2012-13 DR further submitted that the Co-ordinate Bench in the said order dated 01.09.2023, has placed reliance on the decision of the Hon'ble Apex court in the case of PCIT v. Abhisar Buildwell P. Ltd. (2023)454 ITR 212(SC). The ld. DR submitted that the Revenue has filed the appeal against the order of ld. CIT (A) allowing the appeal of the assessee on legal issue on the ground that this being unabated assessment year and therebeing no seized incriminating material and thefore, the ld. AO has no jurisdiction to make the addition whereas, the mertis were not decided by the ld. CIT (A). The ld. DR submitted that the Tribunal while passing the order decided the issue raised on merits in the cross objection of the assessee though there was no decision by the ld. CIT (A) on merit and therefore, the order passed by the Tribunal is wrong and need to be recalled u/s 254(2) of the Act. 03. The ld AR on the other hand vehemently supported the order of the co-ordinate Bench by submitting that there is no apparent mistake in the order passed by the co-ordinate Bench. The ld. Counsel for the assessee submitted that mere deciding the issue on merit as raised in cross objection when all the facts are available before the appellate authority would not render the order to be suffereing from vice of apparent and prma facie mistakes. The ld. Counsel for the assessee therfore prayed that the MA moved by the Revenue may kindly be dismissed. 04. After hearing the rival contentions and perusing the materials available on record, we find that the Revenue has moved a Miscellaneous Application on the ground that the Tribunal has decided the issues on merit as raised in the cross objection, whereas the same were not decided by the ld. CIT (A). In our opinion, the said decision of the co-ordinate Bench on merit would not render the order passed Page | 3 MA No.20/GTY/2024 Santosh Bamalwa; A.Y. 2012-13 by it allowing the merits of the case as having any prima facie or patent mistake. Therefore, we are inclined to dismiss the MA of the Revenue. 05. In the result, MA of the Revenue is dismissed. Order pronounced in the open court on 13.05.2025. Sd/- Sd/- (MANOMOHAN DAS) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 13.05.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Guwahati "