DCIT/ACIT, LTU-1, , Kolkata V. United Bank of India, Kolkata

MA 1/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9938 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 01-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y

Judgement Text

1 MA NO. 1/KOL/2019, ITA NO. 805/KOL/2017 & CO. 46/KOL/2 017 UNITED BANK OF INDIA, AY 2004-05 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] M.A. NO. 01/KOL/2019 IN I.T.A. NO. 805/KOL/2017 ASSESSMENT YEAR: 2004-05 & I.T.A. NO. 805/KOL/2017 ASSESSMENT YEAR: 2004-05 DEPUTY COMMISSIONER OF INCOME- TAX/ASSISTANT COMMISSIONER OF INCOME- TAX, LTU-1, KOLKATA. VS. UNITED BANK OF INDIA (PAN: AAACU5624P) APPLICANT/APPELLANT RESPONDENT & CO. NO. 46/KOL/2017 IN I.T.A. NO. 805/KOL/2017 ASSESSMENT YEAR: 2004-05 UNITED BANK OF INDIA VS. ASSISTANT COMMISSIONER OF INCOME-TAX, LTU-1, KOLKATA. CROSS OBJECTOR RESPONDENT DATE OF HEARING 29.03.2019 DATE OF PRONOUNCEMENT 29.03.2019 FOR THE REVENUE SHRI ROBIN CHOUDHURY, ADDL. CIT, SR . DR FOR THE ASSESSEE/CROSS OBJECTOR SHRI SOUMITRA CHOUDHURY, ADVOCATE ORDER PER SHRI A.T.VARKEY, JM THE MISC. APPLICATION PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE TRIBUNAL DATED 27.09.2018 PASSED IN ITA NO. 805/KOL/2017 AND CO NO. 46/KOL/2017 FOR AY 2004- 05. 2 MA NO. 1/KOL/2019, ITA NO. 805/KOL/2017 & CO. 46/KOL/2 017 UNITED BANK OF INDIA, AY 2004-05 2. BY THIS MISC. APPLICATION, THE REVENUE WANTS THE ORDER PASSED BY THE TRIBUNAL DATED 27.09.2018 TO BE RECALLED ON THE GROUND THAT THE AP PEAL PREFERRED BY IT WAS AGAINST THE ORDER OF THE LD. CIT(A) DATED 23.12.2016 WHICH WAS A DRAFT ORDER AND WAS NOT THE FINAL ORDER OF LD. CIT(A). ACCORDING TO LD. DR, THIS ORDER OF 23 .12.2016 OF LD. CIT(A)17, KOLKATA WAS A DRAFT ORDER WHICH HAS NOT BEEN FINALIZED BY THE L D. CIT(A), SO HE DID NOT APPEND HIS SIGNATURE ON THE ORDER. AND THAT THE DRAFT ORDER I NADVERTENTLY WAS DISPATCHED FROM LD. CIT(A)S OFFICE DUE TO OVER-SIGHT AND WAS NOT AN AC T INTENTIONALLY COMMITTED BY ANY STAFF WORKING IN THE OFFICE OF LD. CIT(A). THEREFORE, AC CORDING TO LD. DR, THE DRAFT ORDER OF LD. CIT(A) DATED 23.12.2016 CANNOT BE CALLED THE FIRST APPELLATE ORDER IN THE EYES OF LAW. SO THE QUESTION OF FACT THAT EMERGES IS THAT WHETHER T HE ORDER DATED 23.12.2016 OF LD. CIT(A), KOL-17 IS ONLY A DRAFT ORDER OR A FINAL ORDER. SO, WHEN THIS VEXED QUESTION OF FACT CAME TO OUR NOTICE , WE SOUGHT THE LEGAL ASSISTANCE OF LD. AR SHRI S. JHAJHARIA TO ACT AS AN AMICUS- CURAIE TO ASSIST US IN FINDING AN ANSWER TO THIS FA CTUAL ISSUE AS TO WHETHER THIS ORDER OF 23.12.2016 IS THE DRAFT ORDER OF LD. CIT(A) AND NOT THE FINAL FIRST APPELLATE ORDER. TODAY WHEN THE MATTER WAS FIXED, THE AMICUS CURAIE SHRI JHAJHARIA, LD. COUNSEL HAS FILED A DETAILED REPORT ALONG WITH THE ORDER SHEET AND VARI OUS NOTICES ALONG WITH THE ORDER OF LD. CIT(A) IN ORDER TO FIND OUT A SOLUTION TO THE QUEST ION IN HAND. THE LD. AMICUS CURAIE IN HIS REPORT HAS DRAWN OUR ATTENTION TO THE FACT THAT THE LD. CIT(A)S ORDER DATED 23.12.2016 WAS NOT SIGNED BY HIM AND FOR THAT HE DREW OUR ATTENTIO N TO THE ORDER SHEET PLACED AT ANNEXURE E TO HIS REPORT. ON A PERUSAL OF THE ORDER SHEET OF LD. CIT(A), WE NOTE THAT ON 07.12.2016 IT HAS BEEN RECORDED THAT THE LD. COUNSEL FOR THE ASSESSEE MR. SOUMITRA CHOUD HURY APPEARED BEFORE THE LD. CIT(A) AND PLACED RELIANCE ON THE TRIBUNALS ORDER IN ASSESSEES OWN CASE FOR AY 2009-10 AND THAT THE CASE WAS DISCU SSED WITH HIM AND THEREAFTER THE LD. CIT(A) HAS PUT HIS INITIAL/SIGNATURE. AND THEREAFT ER THE NEXT DATE IS RECORDED AS 29.12.2016 AND THE LD. CIT(A) HAS RECORDED THAT HE HAS ISSUED A LETTER TO THE ASSESSEE FOR VERIFICATION WHICH HAS BEEN PLACED AS ANNEXURE F. SO, FROM TH E ENTRIES MADE IN THE ORDER SHEET AS AFORESAID, WE SAFELY INFER THAT BETWEEN 07.12.2016 AND 29.12.2016 THERE WAS NO OCCASION TO PASS THE FIRST APPELLATE ORDER BY THE LD. CIT(A) S INCE NO SUCH ENTRY IS FOUND. SO, WE FIND THAT THE PURPORTED ORDER OF THE LD. CIT(A) DATED 23 .12.2016 HAS BEEN WRONGLY ISSUED BY THE STAFF OF LD CIT(A) AS RIGHTLY CONTENDED BY THE DEPA RTMENT BEFORE US. HERE, WE WOULD LIKE 3 MA NO. 1/KOL/2019, ITA NO. 805/KOL/2017 & CO. 46/KOL/2 017 UNITED BANK OF INDIA, AY 2004-05 TO CLARIFY THAT THIS APPEAL WAS FILED BY THE REVENU E AGAINST THE ORDER OF LD. CIT(A) DATED 23.12.2016 AND NOT BY THE ASSESSEE. IT HAS ALSO B EEN POINTED OUT BY THE LD. AR THAT AGAINST THE PURPORTED ORDER OF THE LD. CIT(A) DATED 23.12.2 016, THE TRIBUNAL PASSED AN ORDER DATED 27.09.2018 AND AGAINST WHICH THE DEPARTMENT HAVE PR EFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT AND WHICH IS PRESENTLY PENDING BEFORE TH E HONBLE HIGH COURT. AT THIS STAGE, THE LD. CIT, DR HAS DRAWN OUR ATTENTION TO THE FACT THAT THE APPEAL HAS BEEN FILED BEFORE THE HONBLE HIGH COURT TAKING INTO CONSIDERATION THE LI MITATION PERIOD AND HE UNDERTAKES TO WITHDRAW THE APPEAL. IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUMSTANCES WHICH HAVE BEEN MENTIONED ABOVE, WE ARE INCLINED TO RECALL OUR ORD ER SINCE THE ORDER IMPUGNED BEFORE US ITSELF WAS A DRAFT ORDER AND NOT THE FINAL ORDER OF LD. CIT(A) AND IS, THER EFORE A NON-EST ORDER IN THE EYES OF LAW. IN VIEW OF THE ABOVE FACT S AND CIRCUMSTANCES, WE RECALL OUR ORDER PASSED ON 27.09.2018. 3. SINCE THE MISC. APPLICATION OF REVENUE IS ALLOWE D AND TAKING INTO CONSIDERATION THAT THE APPEAL PREFERRED BY THE REVENUE IS NOT ON THE B ASIS OF THE FINAL ORDER OF THE LD. CIT(A) AND, THEREFORE, THE APPEAL IN A DRAFT ORDER IS NOT MAINTAINABLE AND IS, THEREFORE, NON-EST IN THE EYES OF LAW. THEREFORE, THE APPEAL OF THE REVE NUE AND CROSS OBJECTION OF THE ASSESSEE AGAINST A DRAFT ORDER OF LD. CIT(A) DOES NOT SURVIV E AND IS NOT MAINTAINABLE AND THEREFORE, DISPOSED. BEFORE WE PART, WE APPRECIATE THE EFFORT TAKEN BY THE LD. AMICUS CURAIE SHRI SIDDARTH JHAJHARIA, FCA, WHO HAS TAKEN PAIN TO ENQU IRE AND FILE DETAILED REPORT TO FIND OUT THE TRUTH AND HELP US RESOLVE THIS ISSUE AND THE LD . AR SHRI SOUMITRA CHOUDHURY WHO FAIRLY ASSISTED US IN ADJUDICATING THIS MISC. APPLICATION. 4. IN THE RESULT, BOTH THE APPEAL OF REVENUE AND CR OSS OBJECTION OF ASSESSEE ARE DISMISSED AND THE MISC. APPLICATION OF REVENUE IS A LLOWED AS DISCUSSED SUPRA. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH MARCH, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH MARCH, 2019 JD.(SR.P.S.) 4 MA NO. 1/KOL/2019, ITA NO. 805/KOL/2017 & CO. 46/KOL/2 017 UNITED BANK OF INDIA, AY 2004-05 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DCIT/ACIT, LTU-1, KOLKATA 2 RESPONDENT M/S. UNITED BANK OF INDIA, 16, OLD C OURT HOUSE STREET, DALHOUSIE, KOLKATA-700 001. 3. 4. 5. CIT(A)-17, KOLKATA (SENT THROUGH E-MAIL) CIT, KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. 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