SMC INFRASTRUCTURES P. LTD, V. ASST CIT CEN CIR 3,

MA 105/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2410 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 11-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER KAUR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER MA NO.105/MUM/2014 (ARISING OUT OF ITA NO.4188/MUM/2006) (ASSESSMENT YEAR :2001-2002) SMC INFRASTRUCTURE PVT. LTD., 1 ST FLOOR, KONARK TOWER, OPP. SAI BABA TEMPLE, GHANTALI DEVI ROAD, THANE (W), THANE VS. ACIT, CIR-3, MUMBAI PAN NO. : AACCS 3437 L APPLICANT .. RESPONDENT ASSESSEE BY : SHRI NEELKANTH KHANDELWAL REVENUE BY : SHRI PARMINDER KAUR DATE OF HEARING : 8 TH AUGUST, 2014 DATE OF PRONOUNCEMENT : 8 TH AUGUST, 2014 O R D E R PER S.T.M.PAVALAN, JM : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON, ARISING OUT OF ORDER DATED 27-8-2010, PASSED BY THE TRIBUNAL IN ITA NO.4 188/MUM/20006, RELATING TO ASSESSMENT YEAR 2001-02. 2 . THE ASSESSEE INVITED OUR ATTENTION TO PARAGRAPH 6 OF THE ORDER DATED 27.08.2010, PASSED BY THE TRIBUNAL IN ITA NO.4188/M UM/2006, WHEREIN AFTER RELYING ON THE DECISION OF LARGER THIRD MEMBER BENC H 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 FURTHER SUBMITTE D BY THE LEARNED AR THAT AFTER THE DECISION OF LARGER THIRD MEMBER BENCH, THE HON BLE 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 TH IRD MEMBER BENCH OF THE TRIBUNAL. ACCORDINGLY, IT WAS SUBMITTED THAT APPARE NT MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL, WHICH RESULTED IN DISMISSAL OF THE APPEAL BY RELYING ON THE LARGER THIRD MEMBER BENCH DECISION IN THE CASE OF B .T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD (SUPRA). RELIANCE WAS ALSO PLACED ON THE DECISION OF THE MA NO.105/MUM/2014 (ARISING OUT OF ITA NO.4188/MUM/2006) SMC INFRASTRUCTURE PVT. LTD. (ASSESSMENT YEAR :2001-2002) 2 COORDINATE BENCH IN THE CASE OF B.T. PATIL & SONS B ELGAUM 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 AB G HEAVY INDUSTRIES LTD (SUPRA), ALLOWED THE APPEAL OF THE ASSESSEE. RELIANCE WAS AL SO PLACED ON THE ORDER PASSED BY THE COORDINATE BENCH IN MA NO.472/MUM/2013 VIDE ORDER DATED 11-4-2014, WHEREIN UNDER SIMILAR FACTS, ORDER PASSED BY THE TR IBUNAL BY RELYING ON THE DECISION OF B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE L TD (SUPRA), RECALLED FOR HEARING AFRESH ON MERITS. ON THE OTHER HAND, LEARNED DR REL IED ON THE ORDERS OF THE AUTHORITIES BELOW. 3 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND TH AT THE TRIBUNAL HAS DISMISSED THE ASSESSEES APPEAL VIDE ORDER DATED 27 -8-2010 BY RELYING ON THE DECISION OF LARGER THIRD MEMBER BENCH IN THE CASE O F B.T. PATIL & SONS BELGAUM CONSTRUCTION PRIVATE LTD. (SUPRA). THIS DECISION WA S SUBSEQUENTLY RECALLED AND WAS FINALLY DECIDED IN FAVOUR OF THE ASSESSEE BY RELYIN G ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ABG HEAVY INDUSTRIES LTD., 322 ITR 323 . THUS, AN APPARENT MISTAKE HAS BEEN CREPT IN THE O RDER 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 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 TRIBUN AL AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING ON MERITS. REGISTRY IS ALSO DIRECTED TO ISSUE FRESH NOTICE TO BOTH THE PARTIES. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH AUGUST,2014. SD/- (R.C.SHARMA) SD/- (DR.S.T.M.PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MA NO.105/MUM/2014 (ARISING OUT OF ITA NO.4188/MUM/2006) SMC INFRASTRUCTURE PVT. LTD. (ASSESSMENT YEAR :2001-2002) 3 MUMBAI; DATED: 18/08/2014 PKM, PS COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR H BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.