DCIT CEN CIR 8 (2), MUMBAI V. DORF KETAL CHEMICALS LLC, MUMBAI

MA 107/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5436 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 19-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Section: 153A; 254(2); 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NOS.107, 108, 109, 110 & 111/M/2019 (ARISING OUT OF ITA NOS.4815, 4816, 4817, 4814 & 48 18/M/2013) ASSESSM ENT YEARS: 2005-06, 2006-07, 2007-08, 2004-05 & 200 8-09 PRESENT FOR: ASSESSEE BY : SHRI NISHANT THAKKAR, A.R. SHRI HITEN CHANDE, A.R. REVENUE BY : SHRI CHAITANYA ANJARIA, D.R. DATE OF HEARING : 09.08.2019 DATE OF PRONOUNCEMENT : 20.08.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THESE MISCELLANEOUS APPLICATIONS THE REVENUE SEEKS THE RECALLING OF THE ORDER PASSED IN ITA NO.4 814 TO 4818/M/2013 A.Y. 2004-05 TO 2008-09 VIDE ORDER DATE D 14.07.2017 ON THE GROUND THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 2. THE LD. A.R., AT THE OUTSET, POINTED OUT THAT TH E ASSESSEE HAD MOVED MISCELLANEOUS APPLICATIONS NO.57 TO 61/M/ 2018 AGAINST THE SAID ORDER OF THE TRIBUNAL EARLIER ALSO AND THOSE MAS WERE DISMISSED VIDE ORDER DATED 23.08.2018 ON THE G ROUND THAT THE LD. D.R. UPON A QUERY PUT TO HIM FROM THE BENCH ADMITTED THAT ASSESSEE IS NOT MENTIONED IN THE SEARCH WARRAN T AND THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 8(2), ROOM NO.658, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI VS. M/S. DORF KETAL CHEMICALS LLC, 1, DORF KETAL TOWER ORLEM, MALAD WEST, MUMBAI 400 064 PAN: AACCD1719J (APPELLANT) (RE SPONDENT) MA NOS.107, 108, 109, 110 & 111/M/2019 (ARISING OUT OF ITA NOS.4815, 4816, 4817, 4814 & 48 18/M/2013) M/S. DORF KETAL CHEMICALS LLC 2 THEREAFTER A VIEW WAS TAKEN BY THE BENCH HOLDING TH AT THERE WAS NO SEARCH AGAINST THE ASSESSEE AND PROCEEDINGS UNDE R SECTION 153A WERE HELD TO BE VOID AB-INITIO. THE LD. COUNS EL SUBMITTED THAT THE BENCH WHILE DISMISSING THE MAS OPINED THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER WITHIN TH E AMBIT OF THE SECTION 254 OF THE ACT. THE LD. A.R. SUBMITTED THA T THE REVENUE HAS AGAIN MOVED MAS AGAINST THE SAME ORDER FOR THE SAME REASON STATING THE SAME TO BE AN ERROR IN THE ORDER OF TRIBUNAL WHICH ARE NOT MAINTAINABLE AND LIABLE TO BE DISMISS ED. THE LD. A.R. FURTHER SUBMITTED THAT THE MAS FILED BY THE RE VENUE ARE BARRED BY THE LIMITATION AS THESE WERE FILED BEYOND THE TIME STIPULATED UNDER SECTION 254 OF THE ACT. THE LD. A .R. SUBMITTED THAT THE ORDER IN THIS CASE WAS PASSED BY THE TRIBU NAL ON 14.07.2017 AND THE TIME LIMIT FOR FILING MA EXPIRED ON 30.01.2018 WHEREAS THE PRESENT MA WAS FILED ON 19.0 2.2019 AND THEREFORE CAN NOT BE ENTERTAINED AND LIABLE TO BE DISMISSED. 3. THE LD. D.R., ON THE OTHER HAND, RELIED HEAVILY ON THE MISCELLANEOUS APPLICATIONS FILED THOUGH CANDIDLY AD MITTED THAT THE SIMILAR MAS FILED AGAINST THE ORDER OF THE TRIB UNAL STOOD DISMISSED VIDE ORDER DATED 23.08.2018. THE LD. A.R . OF THE ASSESSEE SUBMITTED THAT THERE BEING APPARENT MISTAK E IN THE ORDER WHICH HAS RESULTED FROM THE WRONG ADMISSION B Y THE LD. D.R. THAT NAME OF THE ASSESSEE WAS NOT MENTIONED IN THE SEARCH WARRANT AND THEREFORE THE SAID MISTAKE NEEDS TO BE RECTIFIED AND THEREFORE ORDER MAY KINDLY BE RECALLED AS THE SAID MISTAKE IS APPARENT. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT IN THIS CASE THE REVENUE HA D ALREADY MA NOS.107, 108, 109, 110 & 111/M/2019 (ARISING OUT OF ITA NOS.4815, 4816, 4817, 4814 & 48 18/M/2013) M/S. DORF KETAL CHEMICALS LLC 3 FILED MAS 57 TO 61/M/2018 WHICH WERE DISMISSED VIDE ORDER DATED 23.08.2018 BY HOLDING AS UNDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT DURING THE COURSE OF HEARING THE DEPARTMENTAL REPRESENTATIVE ADMITTED UPON A QUERY PUT TO HIM FRO M THE BENCH THAT THE NAME OF THE ASSESSEE IS NOT MENTIONED IN THE SEARCH WARRANT AND THEREAFTER A VIEW WAS TAKEN BY THE BENCH HOLDING THAT THERE IS NO SEARCH AGAINST THE ASSESSEE AND THERE PROCEEDINGS U/S 153A OF THE ACT ARE VOID AB-INITI O. IN OUR OPINION, THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER WHICH FAL LS WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT AND THEREFORE THE MAS FILED BY TH E REVENUE ARE NOT MAINTAINABLE. 5. THE REVENUE HAS AGAIN MOVED MISCELLANEOUS APPLIC ATIONS AGAINST THE SAID ORDER WHICH WERE FILED ON 19.02.20 19 CITING THE SAME REASON AND SAME ERROR IN THE ORDER OF THE TRIB UNAL AS HAS BEEN SOUGHT TO BE RAISED IN THE MISCELLANEOUS APPLI CATIONS FILED EARLIER WHICH STOOD DISMISSED VIDE ORDER DATED 23.0 8.2018. IN OUR OPINION, THESE FOUR MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE NOT MAINTAINABLE ON TWO GROUNDS ONE T HE MAS ON THE SAID ISSUE HAVE BEEN DISMISSED AS STATED HEREIN ABOVE HOLDING THAT THERE IS NO APPARENT MISTAKE IN THE O RDER OF TRIBUNAL AND SECONDLY THE MISCELLANEOUS APPLICATION S ARE BARRED BY LIMITATION. ACCORDINGLY, THE SAME ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.08.2019. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 20.08.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ MA NOS.107, 108, 109, 110 & 111/M/2019 (ARISING OUT OF ITA NOS.4815, 4816, 4817, 4814 & 48 18/M/2013) M/S. DORF KETAL CHEMICALS LLC 4 BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.