SMC INFRASTRUCTURE P. LTD, V. DCIT CIR 3,

MA 102/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2408 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER KAUR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & DR. S.T.M.PAVALAN , J M M A NO. 10 2 / MUM/20 1 4 (ARISING OUT OF ITA NO . 67 8 /MUM/20 10 ) ( ASSESSMENT YEAR : 200 6 - 20 0 7 ) SMC INFRASTRUCTURE PVT. LTD. , 101, KONARK TOWERS, GHANTALI DEVI ROAD, THANE VS. D CIT, CIR - 3 , MUMBAI PAN NO. : A A CCS 3437 L APP LICANT .. RESPONDENT ASSESSEE BY : SHRI NEELKANTH KHANDELWAL REVENUE BY : SHRI PARMINDER KAUR DATE OF HEARING : 8 TH AUGUST , 201 4 DATE OF PRONOUNCEMENT : 8 TH AUGUST , 201 4 O R D E R PER R.C.SHARMA, AM : THIS MISCELLANEOUS APPLICATION AROSE OUT OF ITA NO.67 8 /MUM/2010, DECIDED BY THE TRIBUNAL VIDE ORDER DATED 27 - 10 - 2010. 2 . OUR ATTENTION WAS INVITED TO PARAGRAPH 7 OF THE ORDER DATED 27 - 1 0 - 2010, PASSE D BY THE TRIBUNAL IN ITA NO. 67 8 /MUM/2010, WHEREIN AFTER RELYING ON THE DECISION OF LARGER THIRD MEMBER BENCH IN THE CASE OF B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD. VS. ACIT, 36 SOT 171 (MUM), THE APPEAL OF THE ASSESSEE WAS DISMISSED. IT WAS FUR THER SUBMITTED BY THE LEARNED AR THAT AFTER THE DECISION OF LARGER THIRD MEMBER BENCH, THE HONBLE BOMBAY HIGH COURT HAS PASSED AN ORDER IN THE CASE OF ABG HEAVY INDUSTRIES LTD., 322 ITR 323 , WHICH WAS CONTRADICTORY TO THE OPINION GIVEN BY THE LARGER THIR D MEMBER BENCH OF THE TRIBUNAL. ACCORDINGLY, IT WAS SUBMITTED THAT APPARENT MISTAKE HAS BEEN OCCURRED IN THE ORDER OF THE TRIBUNAL FOR DISMISSING THE APPEAL BY RELYING ON THE LARGER THIRD MEMBER BENCH DECISION IN MA NO. 10 2 /20 1 4 2 THE CASE OF B.T. PATIL & SONS BELGAUM CON STRUCTION PRIVATE LTD (SUPRA) . RELIANCE WAS ALSO PLACED ON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD, PASSED IN ITA NO. 1408&1409/PN/2003, WHEREIN IT WAS HELD THAT ASSESSEE WAS ENTITLED FOR CLAIM OF DEDUCTION U/S. 80IA AND AFTER RELYING ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LTD (SUPRA), ALLOWED THE APPEAL OF THE ASSESSEE. RELIANCE WAS ALSO PLACED ON THE ORDER PASSED BY THE COORDINATE BENCH IN MA NO. 472/MUM/2013 VIDE ORDER DATED 11 - 4 - 2014, WHEREIN UNDER SIMILAR FATS, ORDER PASSED BY THE TRIBUNAL BY RELYING ON THE DECISION OF B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD (SUPRA), RECALLED FOR HEARING AFRESH ON MERITS. 3 . ON THE OTHER HAND, LEA RNED DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 4 . WE HA VE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE TRIBUNAL HAS DISMISSED THE ASSESSEES APPEAL VIDE ORDER DATED 27 - 10 - 2010 BY RELYING ON THE DECISION OF LARGER THIRD MEMBER BENCH IN THE CASE OF B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD. (SUPRA) . THIS DECISION WAS SUBSEQUENTLY RECALLED AND WAS FINALLY DECIDED IN FAVOUR OF THE ASSESSEE BY RELYING ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ABG HEAVY INDUS TRIES LTD., 322 ITR 323 . THUS, AN APPARENT MISTAKE HAS BEEN CREPT IN THE ORDER OF TRIBUNAL DATED 27 - 10 - 2010, WHICH IS AMENABLE TO RECTIFICATION U/S.254(2) OF I.T. ACT, 1961. UNDER EXACTLY SIMILAR CIRCUMSTANCE TRIBUNAL HAD RECALLED ITS MA NO. 10 2 /20 1 4 3 ORDER IN ITA NO.4842/ MUM/2006 VIDE ORDER DATED 11 - 4 - 2010, PASSED IN MA NO.472/MUM/2013. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN MA NO. 472/MUM/2013, DATED 11 - 4 - 2014, WE RECALL THE ORDER PASSED BY THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING ON MERITS. REGISTRY IS ALSO DIRECTED TO ISSUE FRESH NOTICE TO BOTH THE PARTIES. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH AUGUST , 2 01 4 . SD/ - ( DR.S.T.M.PAVALAN ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 08 /08/2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUM BAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUAR D FILE. //TRUE COPY//