The ITO, Ward-10(3), Ahmedabad V. Smt. Nina T. Sepai, Ahmedabad

MA 106/AHD/2014

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5496 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 10-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Question of law

Judgement Text

M.A. NO . 106 /AHD/ 201 4 ( IN ITA NO. 564 /AHD/ 201 0 ASSESSMENT Y EAR: 20 0 6 - 07 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD D BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND MAHAVIR PRASAD JM ] M.A. NO. 106 /AHD/ 201 4 ( IN ITA NO. 564 /AHD/ 201 0 ) ASSESSMENT Y EAR : 20 0 6 - 07 INCOME TAX OFFICER, WARD 10(3), AHMEDABAD .......... . .... APPELLANT VS. SMT. NINA T. SEPAI . . .. ....... RESPONDENT C/O. SAMIR A. SHAH RAMANLAL G. SHAH & CO., 4 TH FLOOR, SHREEJI HOUSE, B/H. M.J. LIBRARY, ELLISBRIDGE, AHMEDABAD [PAN: A BJPS 1447 H ] APPEARANCES BY ADITYA SHUKLA FOR THE APPLI CANT TUSHAR P. HEMANI FOR THE RESPONDENT HEARING CONCLUDED ON: 21 .0 4 .2017 ORDER PRONOUNCED ON : 18 .05. 2017 O R D E R PER PRAMOD KUMAR, AM: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE APPLICANT ASSESSING OFFICER SEEKS, AS HE HIMSELF PUTS IT, REVIEW FOR THE ORDER DATED 29 TH NOVEMBER 2013 PASSED BY THIS TRIBUNAL. THE REASON JUSTIFYING THE APPLICATION SO MADE BY THE ASSESSING OFFICER IS SET OUT AS BELOW : - THE HON BLE ITAT, A BENCH, AHMEDABAD VIDE ITS ORDER DATED 29.11.2013 HAS ALL OWED THE APPEAL OF THE ASSESSEE. THE HON BLE ITAT HAS HELD THAT THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS (SUPRA) DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE, ALLOW M.A. NO . 106 /AHD/ 201 4 ( IN ITA NO. 564 /AHD/ 201 0 ASSESSMENT Y EAR: 20 0 6 - 07 PAGE 2 OF 3 THE GROUND OF THE APPEAL OF THE ASSESSEE, AND CONSEQUENTLY , SET ASIDE THE ORDER OF THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE AFORESAID NOTICE, WHICH IS BARRED BY LIMITATION. 2. WE HAVE HEA R D THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED F ACTS OF THE CASE IN THE LIGHT OF APPLICA BLE LEGAL P OSITION. 3. WE FIND HAT IN THE IMPUGNED ORDER, THE TRIBUNAL HAS, INTER ALIA, OBSERVED AS FOLLOWS - 3. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 23.4.2007 AND NOTICE UNDER SECTION 143(2) IN RESPECT OF THE SAID RE TURN OF INCOME WAS SERVED UPON THE ASSESSEE ON 24.7.2008. THE CONTENTION OF THE ASSESSEE IS THAT THE NOTICE BEING SERVED AFTER EXPIRY OF 12 MONTHS FROM THE END OF MONTH IN WHICH THE RETURN OF INCOME WAS FILED, IS BARRED BY LIMITATION AND THE PROVISION TO P ROVISO OF SECTION 143(2), WHICH BEING EFFECTIVE FROM 1.4.2008, WILL BE APPLICABLE FOR THE ASSESSMENT YEAR 2008 - 2009 AND SUBSEQUENT YEARS ONLY, AS THESE PROVISIONS ARE ON JURISDICTIONAL ISSUE. THE ASSESSEE RELIED UPON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI BIPIN KISHORE TONDON VS. ITO, ITA NO.2487/AHD/2010 DATED 13.5.2011 AND OF THE HON BLE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS VS. DCIT (MISC.BENCH NO.3505 OF 2009 DATED 3.4.2012. 4. ON THE OTHER HAND, THE LEA RNED DR CONTENDED THAT THE AMENDMENT IN PROVISION OF PROVISO TO SECTION 143(2) WILL BE APPLICABLE IN THE INSTANT CASE AS THE ASSESSMENT PROCEEDINGS WERE PENDING ON 1.4.2008. HE RELIED UPON THE DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF AMARJIT SINGH TUT. V. UNION OF INDIA, 347 ITR 585 (P&H). 5. WE FIND THAT THE DECISION OF THE ALLAHABAD HIGH COURT SUPPORTS THE CASE OF THE ASSESSEE, WHEREAS, THE DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT SUPPORTS THE CASE OF THE REVENUE. TH E HON BLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS VEGETABLE PRODUCTS LTD., 88 ITR 192 (SC) HAS HELD THAT WHEN THE DECISIONS OF TWO HIGH COURTS ARE CONFLICTING AND NONE OF THE HIGH COURTS IS JURISDICTIONAL HIGH COURT, THEN THE DECISION IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED. WE, THEREFORE, FOLLOWING THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS (SUPRA) DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE, ALLOW THE GROUND OF THE APPEAL OF THE ASSESSEE, AND CONSEQU ENTLY, SET SIDE THE ORDER OF THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE AFORESAID NOTICE, WHICH IS BARRED BY LIMITATION. M.A. NO . 106 /AHD/ 201 4 ( IN ITA NO. 564 /AHD/ 201 0 ASSESSMENT Y EAR: 20 0 6 - 07 PAGE 3 OF 3 4. THE VIEW THUS ADOPTED BY THE TRIBUNAL DOES NOT, IN OUR CONSIDERED VIEW, SUFFER F ROM ANY MISTAKE APPARENT ON RECORD. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT POINT OUT WHICH BINDING JUDICIAL PRECEDENTS HAVE BEEN IGNORED IN THIS CASE. IN ANY CASE, ON THIS VERY ISSUE ABOUT CORRECTNESS OF CONCLUSION SO ARRIVED AT BY THE TRIBUNAL , HON BLE HIGH COURT HAS ADMITTED A SUBSTANTIAL QUESTION OF LAW AND T HEIR L ORDSHIPS ARE NOW SEIZED OF THE MATTER. IN ANY CASE, IT IS NOT OPEN TO US TO REVIEW OUR ORDER IN THE GARB OF RECTIFICATION OF MISTAKES. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE SEE NO LEGALL Y SUSTAINABLE MERITS IN THE PRESENT RECTIFICATION PETITION, AND WE, ACCORDINGLY, DISMISS THE SAME. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE . 18 TH DAY OF M AY , 2017 . S D / - SD/ - MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 18 TH DAY OF MA Y , 2017 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSIS TANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD