Bajaj Roadways, Kolkata V. ITO, Ward-56(3), Kolkata, Kolkata

ITA 1956/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2441 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 ITA NOS. 1956 /KOL/2016 BAJAJ ROADWAYS AY- 2005-06 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 1956/KOL/2016 ASSESSMENT YEAR: 2005-06 M/S. BAJAJ ROADWAYS (PAN: AADFB7307G) VS. INCOME-TAX OFFICER, WD-56(3), KOLKATA (APPELLANT) (RESPONDENT) DATE OF HEARING 08.07.2019 DATE OF PRONOUNCEMENT 04.09.2019 FOR THE APPLICANT SHRI S. K. KANDOI, FCA FOR THE RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-12, KOLKATA DATED 19.07.2016 FOR AY 2005-06. 2. THE AFORESAID APPEAL HAS BEEN FIXED FOR HEARING AFTER ADJUDICATING A MISC. APPLICATION PREFERRED BY THE REVENUE VIDE MA NO. 1 50/KOL/2018 (ARISING OUT OF ITA NO. 1956/KOL/2016 FOR AY 2005-06) WHICH WAS LISTED ON 1 2.10.2018 WHEREIN IT WAS POINTED OUT THAT THE TRIBUNAL HAS ALLOWED THE ASSESSEES APPEAL IN ITA NO. 1956/KOL/2016 VIDE ORDER DATED 13.04.2018 WHEREAS DEPARTMENTS APPEAL WHICH WAS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) -12 DATED 19.07.2016 HAS NOT BEEN ADJUDI CATED. TAKING INTO CONSIDERATION THE FACT THAT BOTH APPEALS EMANATES FROM THE SAME IMPUG NED ORDER OF THE LD. CIT(A) -12, KOLKATA DATED 19.07.2016 FOR AY 2005-06, THE TRIBUN AL ALLOWED THE PRAYER OF THE REVENUE TO RECALL THE ORDER PASSED IN ASSESSEES APPEAL SO THAT BOTH APPEALS CAN BE ADJUDICATED TOGETHER. THEREFORE, THE TRIBUNAL VIDE ORDER DATED 07.12.2018 IN MISC. APPLICATION PREFERRED BY THE REVENUE WAS PLEASED TO RECALL THE ORDER BY O RDER DATED 13.04.2018 PASSED IN 2 ITA NOS. 1956 /KOL/2016 BAJAJ ROADWAYS AY- 2005-06 ASSESSEES APPEAL FOR THE PURPOSE OF ADJUDICATING T OGETHER BOTH THE REVENUES APPEAL AS WELL AS THAT OF THE ASSESSEES APPEAL. THUS, THE APPEAL OF THE ASSESSEE WAS LISTED BEFORE US. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE POINTED OUT THAT THE DEPARTMENTS APPEAL NO. 2023/KOL/2016 FOR AY 2005-06 ARISING FRO M THE IMPUGNED ORDER OF THE LD. CIT(A) DATED 19.07.2016 HAS BEEN DISPOSED OFF/DISMI SSED BY THE TRIBUNAL B BENCH VIDE ORDER DATED 04.07.2018. A COPY OF THE SAID ORDER H AS BEEN PLACED BEFORE US WHICH ON A PERUSAL WE FIND IT TO BE CORRECT. THUS, WE FIND TH AT THE DEPARTMENTS APPEAL IN ITA NO.2023/KOL/2016 FOR AY 2005-06 STEMMING FROM THE O RDER OF LD. CIT(A)-12, KOLKATA DATED 09.07.2016 HAS ALREADY BEEN DISMISSED VIDE TH E TRIBUNALS ORDER DATED 04.07.2018. WE NOTE THAT DEPARTMENTS APPEAL IN ITA NO. 2023/KO L/2016 FOR AY 2005-06 WAS DISMISSED BY A REASONED ORDER ON 04.07.2018 AFTER H EARING THE LD. ADDITIONAL CIT (DR) SHRI S. DASGUPTA, ON THE DATE OF HEARING ON 26.06.2 018. AND THE MA OF REVENUE TO RECALL THE TRIBUNAL ORDER DATED 13.04.2018 PASSED IN ASSES SEES APPEAL (ITA NO. 1956/KOL/2016) WAS FILED ON 13.08.2018 ON THE PLEA THAT DEPARTMENT S APPEAL PREFERRED AGAINST THE LD. CIT(A) -12 ORDER DATED 19.07.2016 HAS NOT BEEN ADJU DICATED. WHILE HEARING THE M. A. OF DEPARTMENT ON 12.10.2018 NEITHER THE ASSESSEE NOR T HE DEPARTMENT POINTED OUT THAT REVENUES APPEAL HAS BEEN DISPOSED OFF ON 04.07.201 8, WHICH FACT LED US TO RECALL THE TRIBUNALS ORDER DATED 13.04.2018, VIDE ORDER DATED 07.12.2018. THE ORDER PASSED BY THE TRIBUNAL ON THE M. A. NO. 150/KOL/2018 PREFERRED BY THE REVENUE (WHICH WAS FILED ON 13.08.2018) WAS THUS ON AN ERRONEOUS PREMISES/BASIS /FACT THAT THE DEPARTMENTS APPEAL WAS NOT ADJUDICATED WHEREAS THE CORRECT FACT WAS THAT T HE DEPARTMENTS APPEAL WAS DISMISSED ON 04.07.2018. THUS, WE NOTE THAT ON A WRONG BASIS TH E TRIBUNAL RECALLED THE ORDER PASSED IN ASSESSEES APPEAL ON 13.04.2018 VIDE ORDER DATED 07 .12.208. THEREFORE, IN THE LIGHT OF THE AFORESAID FACTS, THE NATURAL CONSEQUENCE IS THAT TH E TRIBUNALS ORDER IN ASSESSEES APPEAL IN ITA NO. 1956/KOL/2016 HAS TO BE RESTORED IN THE AFO RESAID FACTUAL SCENARIO. CONSEQUENTLY, THE TRIBUNALS ORDER IN ITA NO. 1956/KOL/2016 (ASSE SSEES APPEAL) FOR AY 2005-06 AGAINST THE ORDER OF THE LD. CIT(A)-12, KOLKATA DATED 19.07 .2016 WHICH WAS RECALLED IS CANCELLED AND THE TRIBUNALS ORDER DATED 13.04.2018 IS RESTOR ED SINCE THE DEPARTMENTS APPEAL IN ITA NO.2023/KOL/2016 ARISING FROM THE ORDER OF THE LD. CIT(A)-12 DATED 19.07.2016 HAS BEEN 3 ITA NOS. 1956 /KOL/2016 BAJAJ ROADWAYS AY- 2005-06 DISMISSED VIDE TRIBUNALS ORDER DATED 04.07.2018 WH ICH FACT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL WHILE MISC. APPLICATION WAS PREFERR ED BY THE REVENUE AS DISCUSSED SUPRA. ACCORDINGLY, WE RESTORE ORDER OF THE TRIBUNAL DATED 13.04.2018 PASSED IN ITA NO. 1956/KOL/2016 WHEREIN THE TRIBUNAL WAS PLEASED TO A LLOW THE APPEAL OF ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER, 2019. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 4 TH SEPTEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. BAJAJ ROADWAYS , P-3, NEW CIT R OAD, 4 TH FLOOR, KOLKATA-700 073. 2 RESPONDENT ITO, WARD-56(3), KOLKATA 3. 4. CIT(A)-12, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR