DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, Jaipur V. M/S ALLIED GEMS CORPORATION, Jaipur

ITA 1359/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3752 (ITAT-JAIPUR)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 03-12-2018
• Court: TRIBUNAL

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1359 & 1360/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-1, JAIPUR. CUKE VS. M/S. ALLIED GEM CORPORATION, BHANDIA BHAWAN, JOHARI BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACFA 2928 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MEHLA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ROHAN SOGANI (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07.03.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/03/2019. VKNS'K@ ORDER PER BENCH : THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAIN ST TWO SEPARATE ORDERS OF THE LD. CIT (A)-1, JAIPUR BOTH DATED 27.09.2018 FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. THE REVENUE HAS RAISED C OMMON REVISED GROUNDS AS UNDER :- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN QUASHING T HE ORDER OF AO DATED 30.12.2016 HOLDING THAT THE HONBLE ITAT HAS RECAL LED ITS EARLIER ORDER DATED 17.07.2015 I.E. THE FOUNDATION ON THE BASIS O F WHICH THE IMPUGNED ASSESSMENT ORDER ON AOS ORDER DATED 30.12 .2016 HAS BEEN PASSED IS NO MORE AVAILABLE AND LD. CIT (A) SHOULD HAVE KEPT THE APPEAL ORDER IN ABEYANCE TILL DISPOSAL OF RECALLED ORDER DATED 03.01.2017 IN M.A. NO. 112, 113 & 114/JP/2016 AS FR OM THE ORDER OF HONBLE ITAT DATED 15.12.2017 IT IS NOT CLEAR AS TO WHETHER THE ORDER DATED 03.01.2017 OF THE ITAT HAS BEEN DECIDED SIMUL TANEOUSLY VIDE ORDER DATED 15.12.2017 OR NOT ? 2 ITA NOS. 1359 & 1360/JP/2018 M/S. ALLIED GEM CORPORATION, JAIPUR. (II) THE ABOVE GROUND OF APPEAL EMANATES FROM THE F ACT THAT THE HONBLE ITAT HAS PASSED THREE ORDERS IN THIS CASE. FIRST ORDER DATED 17.07.2015 WHEREBY THE INITIAL ORDER WAS SET ASIDE TILL THE DISPOSAL OF APPEAL BY HONBLE RAJASTHAN HIGH COURT IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS SECOND ORDER WAS PASSED ON 03.0 1.2017 WHEREBY THE ORDER DATED 17.07.2015 WAS RECALLED AND THE THI RD ONE WAS PASSED ON 15.12.2017 WITHOUT MENTIONING AS TO AGAINST WHIC H ORDER OF CIT (A) IT HAS BEEN PASSED OR WHETHER THE RECALLED ORDER DA TED 17.07.2015 HAS BEEN CONSIDERED OR NOT. THIS HAS GIVEN RISE TO FURT HER FOLLOWING QUESTION OF LAW :- WHETHER ON THESE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW CIT (A) WAS JUSTIFIED IN HOLDING THE ORDER PASSED BY TH E AO ON 30.12.2016 INFRUCTUOUS PRIMARILY SAYING THAT THE HONBLE ITAT HAS RECALLED IT EARLIER ORDER DATED 17.07.2015 I.E. FOUNDATION ON THE BASIS OF WHICH THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED IS NO MOR E AVAILABLE AND FURTHER DECLARING THAT VIDE ORDER DATED 15.12.2017 THE HONBLE ITAT HAS UPHELD THE ORDER DATED 08.07.2017 WHEN IN THE ORDER DATED 15.12.2017 THERE IS NO MENTION AS TO AGAINST WHICH ORDER THIS ORDER HAS BEEN PRONOUNCED OR WHETHER RECALLED ORDER DATED 17.07.2015 HAS BEEN CONSIDERED BY THE HONBLE ITAT OR NOT ? 2. WE HAVE HEARD THE LD. D/R AS WELL AS THE LD. A/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT TH ESE TWO APPEALS ARE ARISING FROM THE ORDERS PASSED BY THE AO GIVING EFFECT TO THE OR DER OF THIS TRIBUNAL DATED 17.07.2015. HOWEVER, SUBSEQUENTLY ON THE MISCELLAN EOUS APPLICATION NOS. 112 TO 114/JP/2016 THE TRIBUNAL RECALLED THE EARLIER ORDER DATED 17.07.2015 VIDE ORDER DATED 03.01.2017 ON THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. THUS THE ORDER DATED 17.07.2015 WAS NO MORE IN EXISTENCE AS IT WAS RECALLED SUBSEQUENTLY BY THE TRIBUNAL VIDE ORDER DATED 03.01.2017. THEREFOR E, THE ORDER PASSED BY THE AO GIVING EFFECT TO THE EARLIER ORDER BECOMES NON EST. FURTHER, WE NOTE THAT AFTER RECALLING OF THE EARLIER ORDER, THE TRIBUNAL HAS AG AIN DECIDED THE APPEALS OF THE REVENUE AND CROSS OBJECTIONS OF THE ASSESSEE VIDE O RDER DATED 15.12.2017. THE APPEALS OF THE REVENUE AS WELL AS CROSS OBJECTIONS OF THE ASSESSEE WERE DISMISSED BY 3 ITA NOS. 1359 & 1360/JP/2018 M/S. ALLIED GEM CORPORATION, JAIPUR. THE TRIBUNAL VIDE ORDER DATED 15.12.2017 AND, THERE FORE, THE DISPUTE RAISED BY THE REVENUE IN THE APPEALS WERE FINALLY SETTLED AT THE LEVEL OF THE TRIBUNAL. IN VIEW OF THE SUBSEQUENT ORDERS OF THE TRIBUNAL, WE DO NOT FI ND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF LD. CIT (A) QUASHING THE ASSESSME NT ORDERS BECAUSE OF THE RECALLING OF THE EARLIER ORDER DATED 17.07.2015. H ENCE, THESE APPEALS FILED BY THE REVENUE ARE NOT MAINTAINABLE AS THE ISSUE HAS ALREA DY BEEN DECIDED BY THE TRIBUNAL. 5. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08/03/2 019. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08/03/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE DCIT, CIRCLE-1, JAIPUR. 2. THE RESPONDENT M/S. ALLIED GEM CORPORATION, JA IPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1359 & 1360/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 4 ITA NOS. 1359 & 1360/JP/2018 M/S. ALLIED GEM CORPORATION, JAIPUR.