M/s Mahashakti Royalty Company, Panchkula V. ACIT, Panchkula

ITA 782/CHANDI/2008

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6532 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 29-08-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Set aside

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH , ! '# $ % & '# , () BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 782/CHD/2008 / ASSESSMENT YEAR : 2003-04 THE ACIT, PANCHKULA CIRCLE, PANCHKULA M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA ./PAN NO: AAAAM4321M / APPELLANT /RESPONDENT ! /ASSESSEE BY : NONE ' ! / REVENUE BY : SH. MANJIT SINGH, SR.DR # $ % /DATE OF HEARING : 25.02.2019 &'() % / DATE OF PRONOUNCEMENT : 25.02 .2019 (* / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL / MATTER IN REVENUES APPEAL HA S BEEN RESTORED BACK TO THIS TRIBUNAL BY THE HON'BLE PUNJAB & HARYA NA HIGH COURT VIDE THEIR ORDER DATED 10.5.2018 PASSED IN ITA NO. 08 OF 2011 (O&M). 2. THE HON'BLE HIGH COURT HAS REMANDED THE MATTER T O THE TRIBUNAL TO DECIDE IT AFRESH AFTER HEARING THE PARTIES IN ACCOR DANCE WITH LAW AND CONSIDERING THE ENTIRETY OF FACTS AND APPRECIATING OF LEGAL POSITION IN THIS REGARD. 3. THE BRIEF FACTS RELEVANT TO THE ISSUE ARE THAT T HIS APPEAL FILED BY THE ASSESSEE EARLIER AGAINST THE IMPUGNED ORDER OF THE CIT(A) DATED ITA NO. 782/CHD/2018- M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA 2 15.11.2006 WAS DISMISSED FOR NON-PROSECUTION VIDE ORDER DATED 24.10.2008 OF THIS TRIBUNAL. THEREAFTER, THE ORDER DISMISSI NG THE APPEAL FOR NON- PROSECUTION WAS ALLEGEDLY RECALLED AND THE APPEAL WAS THEREAFTER DECIDED ON MERITS ON 28.4.2010 VIDE COMPOSITE ORDER ALONG WITH ITA NO.176/CHD/2009. THE REVENUE PREFERRED THE APPEAL BEFORE THE HON'BLE HIGH COURT PLEADING THAT THE TRIBUNAL WITHOUT RECAL LING THE SAID ORDER DATED 24.10.2008 VIDE WHICH APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON- PROSECUTION HAS AGAIN PASSED AN ORDER DATED 28.4.20 10 PARTLY ACCEPTING THE APPEAL AND ALLOWING CERTAIN DEDUCTIONS TO THE ASSES SEE. IT WAS CONTENDED BEFORE THE HON'BLE HIGH COURT THAT THE MATTER REQUI RES TO BE RE-EXAMINED BY THE TRIBUNAL IN VIEW OF VALID ORDER DATED 24.10. 2008 STILL ON RECORD, THE SUBSEQUENT DECISION RENDERED ON 28.4.2010 COULD NOT BE SUSTAINED. SINCE THERE WAS NOTHING ON RECORD FROM THE PERUSAL OF THE IMPUGNED ORDER DATED 28.4.2010 TO SUGGEST WHETHER THE ORDER DATED 24.10. 2008 PASSED BY THE TRIBUNAL WAS EVER RECALLED, THE HON'BLE HIGH COURT SET ASIDE THE ORDER DATED 28.4.2010 AND THE MATTER IS REMANDED TO THE T RIBUNAL IN THE TERMS AS NARRATED ABOVE IN PARA 2 OF THIS ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E GONE THROUGH THE RECORD. THE PLEA OF THE REVENUE BEFORE THE HON'BLE HIGH COURT WAS THAT ORDER DATED 24.10.2008 WAS NEVER RECALLED AND, THE REFORE, THE SUBSEQUENT ORDER DATED 28.4.2010 WAS NOT A VALID ORDER WHICH WAS NOT SUSTAINABLE IN THE EYES OF LAW. 5. IN VIEW OF THE ABOVE CONTENTION OF THE REVENUE, SINCE THE FACT OF RECALLING OF ORDER DATED 24.10.2008 DID NOT FIND ME NTION IN THE ORDER DATED 28.4.2010, THE HON'BLE HIGH COURT HAS REMANDED THE MATTER TO THE TRIBUNAL ITA NO. 782/CHD/2018- M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA 3 FOR DECISION AFRESH TAKING INTO CONSIDERATION THE E NTIRETY OF FACTS AND THE LEGAL POSITION IN THIS REGARD. 6. NOW AS PER THE LEGAL POSITION, IF THE ORDER DATE D 24.10.2008 HAS NOT BEEN RECALLED AND THAT THE SAME IS STILL EXISTING A S A VALID ORDER, THE SUBSEQUENT ORDER PASSED BY THE TRIBUNAL BEING WITHO UT JURISDICTION WILL HAVE TO TREATED AS VOID. FURTHER, IF THE ORDER DAT ED 24.10.2008 HAS BEEN RECALLED AND THEREAFTER THE ORDER DATED 28.4.2010 W AS PASSED ON MERITS IN ACCORDANCE WITH LAW, THEN THE SAME WILL CONSTITUTE A VALIDLY PASSED ORDER AND HAS TO BE RE-AFFIRMED. 7. TO APPRECIATE THE TRUE FACTS, RECORD OF THE REG ISTRY WAS CALLED FOR AS TO WHETHER THE ORDER DATED 24.10.2008 WAS EVER RECA LLED OR THE APPEAL WAS RESTORED TO ITS ORIGINAL POSITION FOR HEARING AFRES H PRIOR TO THE PASSING OF THE ORDER DATED 28.4.2010. AS PER THE REPORT OF THE REGISTRY, THE ORDER DATED 24.10.2008 WAS RECALLED BY THE ORDER DATED 18 .9.2009 OF THIS TRIBUNAL PASSED IN M.A.NO. 08/CHD/2009, HOWEVER, A SEPARATE DETAILED ORDER WAS NOT PASSED BUT THE ORDER FOR RECALLING OF THE EX-PARTE ORDER DATED 24.10.2008 WAS PASSED AND RECORDED IN THE ORDER SHE ET IN M.A.NO. 08/CHD/2009 VIDE ORDER DATED 18.9.2009 AND THE MAIN APPEAL THEREAFTER WAS POSTED FOR HEARING FOR 23.11.2009. THEREAFTER, THE CASE WAS DULY REPRESENTED BY THE DEPARTMENT REPRESENTATIVES AS WE LL AS COUNSEL FOR THE ASSESSEE AND THE MATTER WAS ADJOURNED TO 15.12.2009 AND THEREAFTER FROM 15.12.2009 TO 16.12.2009 AND FINALLY THE MATTER WA S HEAD ON MERITS ON 16.12.2009, ON WHICH DATE THE DEPARTMENT WAS REPRES ENTED BY SHRI VIVEK AGGARWAL, DR WHEREAS THE ASSESSEE WAS REPRESENTED B Y SH. HARRY RIKHY, ADVOCATE. AFTER HEARING THE ARGUMENTS, FINAL ORDER WAS PASSED BY THE ITA NO. 782/CHD/2018- M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA 4 TRIBUNAL ON 28.4.2010. AFTER EXAMINING THE ABOVE R ECORD, IT IS APPARENT THAT THE ORDER DATED 24.10.2008 WAS DULY RECALLED I N AN M.A. NO. 08/CHD/2009 FILED BY THE ASSESSEE FOR RECALLING OF THE ORDER AND THEREAFTER THE CASE WAS DULY POSTED FOR HEARING WHICH WAS DULY REPRESENTED AND CONTESTED BY THE DEPARTMENT ON MERITS THROUGH THEIR DRS. ANOTHER IMPORTANT FACT ON PERUSAL OF THE RECORD OF M.A NO. 8/CHD/2009 MOVED IN ITA NO. 782/CHD/2008 REVEALS THAT AN APPLICATION BE ARING NO. CIT/ PKL/JUDL/2011-12/1240 DATED 11.7.2011 WAS MOVED BY THE DEPARTMENT UNDER THE SIGNATURES OF SHRI AMREEK SINGH, DY. COMM ISSIONER OF INCOME TAX (HQ), O/O THE COMMISSIONER OF INCOME TAX, PANCH KULA VIDE WHICH THE DEPARTMENT HAS APPLIED FOR A COPY OF THE ORDER PASS ED BY THIS TRIBUNAL IN M.A. NO. 8/CHD/2009 WHEREBY THE ORDER DATED 24.10.2 008 IN ITA NO. 782/CHD/2008 WAS RECALLED. APART FROM THIS, AN APPL ICATION WAS MOVED BY THE DEPARTMENT UNDER THE SIGNATURES OF DY. COMMISSI ONER OF INCOME TAX (HQ), O/O THE COMMISSIONER OF INCOME TAX, PANCHKULA DCIT (HQ) FOR SUPPLYING THE COPY OF THE MISC. APPLICATION MOVED B Y THE ASSESSEE FOR RECALLING OF THE ORDER, PLEADING THEREIN THAT THE S AME IS REQUIRED TO THE DEPARTMENT TO BE PRESENTED IN THE CASE PENDING BEF ORE THE HON'BLE PUNJAB & HARYANA HIGH COURT. THEREAFTER, A NOTE WA S PUT FOR APPROVAL FOR SUPPLYING THE REQUIRED COPY OF THE SAME BY THE REGI STRY, WHICH WAS APPROVED BY THE MEMBERS OF THE BENCH ON 20.7.2011 A ND THE COPIES OF THE MISC. APPLICATION AS WELL AS THE ORDER FOR RECALLI NG PASSED IN M.A. RECALLING ORDER DATED 24.10.2008 WERE DULY SUPPLIED TO THE DEPARTMENT VIDE LETTER DATED 21.7.2011 OF THE ASSISTANT REGIST RAR OF THE ITAT ADDRESSED TO DY. COMMISSIONER OF INCOME TAX (HQ), O/O THE COMMISSIONER OF INCOME TAX, PANCHKULA WHICH WAS DUL Y RECEIVED BY THE ITA NO. 782/CHD/2018- M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA 5 REPRESENTATIVES OF THE DEPARTMENT UNDER THEIR SIGN ATURES. HOWEVER, IT APPEARS THAT DESPITE SUFFICIENT KNOWLEDGE AND DESPI TE HAVING SUPPLIED COPIES OF THE MISC. APPLICATION AND THE ORDER PASSE D IN M.A., TRUE FACTS PERHAPS HAVE BEEN CONCEALED BY THE DEPARTMENT FROM THE HON'BLE HIGH COURT RESULTING INTO THE PRESENT ORDERS OF THE HO N'BLE HIGH COURT DATED 10.5.2018. 8. SINCE THE HON'BLE HIGH COURT HAS REMANDED THE MA TTER TO DECIDE IT AFRESH AFTER CONSIDERING THE ENTIRETY OF FACTS AND APPRECIATION OF LEGAL POSITION IN THIS REGARD, AND AS PER THE FACTS AND L EGAL POSITION AS DISCUSSED ABOVE, THIS TRIBUNAL HAS TWO OPTIONS EITHER TO HOLD THAT THE ORDER DATED 24.10.2008 HOLDS GOOD ON THE GROUND THAT THE SAME H AS NOT BEEN RECALLED OR IN THE ALTERNATIVE TO RE-AFFIRM THE ORDER DATED 28. 4.2010, IF IT IS FOUND THAT THE ORDER DATED 24.10.2008 WAS RECALLED. IT IS AL SO PERTINENT TO MENTION HERE THAT IF THE ORDER DATED 24.10.2008 IS HELD TO BE EXISTING; ANY FRESH ORDER PASSED BY THE TRIBUNAL, ON MERITS WILL BE VOI D / INVALID, ON THE SIMILAR ANALOGY ON WHICH THE ORDER DATED 24.10.2008 HAS BEEN SET ASIDE BY THE HON'BLE PUNJAB & HARYANA HIGH COURT. 9. AS PER THE FACTS AND LEGAL POSITION, THE ORDER D ATED 24.10.2008 WAS DULY RECALLED, WHICH WAS IN THE KNOWLEDGE OF THE DE PARTMENT, COPIES OF THE MISC. APPLICATION NO. 8/CHD/2009 AND THE ORDER PASS ED THEREUPON WERE DULY SUPPLIED TO THE DEPARTMENT. AS PER THE LEGAL POSITION, THE ORDER DATED 28.4.2010 IS, THEREFORE, LIABLE TO BE RE-AFFIRMED . WE ORDER ACCORDINGLY AND THE ORDER DATED 28.4.2010 PASSED BY THE TRIBUNA L IS REITERATED / RE- AFFIRMED. ITA NO. 782/CHD/2018- M/S MAHASHAKTI ROYALTY COMPANY, PANCHKULA 6 THE APPEAL OF THE REVENUE IS TREATED AS DISMISSED I N TERMS OF THE ORDER DATED 28.4.2010 OF THIS TRIBUNAL. BEFORE PARTING WITH THE ORDER, WE WISH TO PUT ON RE CORD THAT THE ACT OF CONCEALMENT OF TRUE FACTS ON THE PART OF THE OF FICIALS OF THE DEPARTMENT FROM THE HON'BLE HIGH COURT IN THE APPEAL IN ITA NO . 08 OF 2011 (O&M) IS HIGHLY DEPRECIABLE. SUCH TYPE OF PRACTICE SHOULD BE STOPPED. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT ON 25.02.2019 SD/- SD/- ( $ % & '# / ANNAPURNA GUPTA) () / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 25.02.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR