RICHO (I) LTD, V. ITO WD 3(3)(11),

MA 115/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5275 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 1999-2000
• Appeal Filed On: 09-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH,(AM) MA NO. 115/MUM/2009 ARISING OUT OF ITA NO. 9017/MUM/2004 ASSESSMENT YEAR : 1999-2000 M/S. RICOH (I) LTD. 104, ARCADIA, 195, NCPA ROAD, NARIMAN POINT, MUMBAI-21. ..( APPLICANT ) P.A.NO. (AAACR 4151 J) VS. THE ITO 3(3) (1), R.NO.670, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. ..( RESPONDENT ) APPLICANT BY : NONE RESPONDENT BY : SHRI SAN JAY KUMAR O R D E R PER D.K. AGARWAL (JM). BY THIS MISCELLANEOUS PETITION DATED 6.2.2009, AGAINST THE ORDER PASSED BY THE TRIBUNAL IN M.A. NO.446/MUM/2008 DATED 2.12.2008 ARISING OUT OF ITA NO.9017/MUM/2004, FOR ASSESSMENT YEAR 1999- 2000, THE ASSESSEE POINTED OUT FOLLOWING MISTAKES: I) THE RESPONDENT HAS BEEN SHOWN AS ITO 3(3)(1) WHEREAS THE NAME OF THE RESPONDENT AS PER ASSESSMENT ORDER IS DY.CIT, RANGE-3(3) MUMBAI, II) NO DIRECTION HAS BEEN GIVEN TO ALLOW DEDUCTION OF INTE REST IN THE PRECEDING ASSESSMENT YEARS TO WHICH THE AMOUNT RELATED, AN D MA NO.115/M/09 A.Y:99-00 2 III) THE TRIBUNALS ORDER TO REMAND THE MATTER TO THE ASSE SSING OFFICER PERTAINING TO DEDUCTION OF SALES TAX U/S.43B I S NOT CORRECT DISCARDING THE FACTUAL ASPECT OF THE MATTER. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE NOR FILED ANY APPLICATION FOR ADJOURNMENT OF THE CASE DESPITE THE FACT THAT THE NOTICE OF DATE OF HEARING FIXING THE CASE FOR 1.10.2010 WAS SENT BY RPAD. FROM THE RECORDS WE FIND THAT THE FIRST HEARING IN THE CASE WAS FIXED FOR 3.4.2009 AND THEREAFTER THE CASE IS BE ING ADJOURNED MORE THAN 15 TIMES ON THE GROUND THAT ON SOME OCCASION T HE BENCH DID NOT FUNCTION OR THE ASSESSEE NOT APPEARED OR THE ASSE SSEE SOUGHT ADJOURNMENT. IT WAS THEREFORE, DECIDED TO DISPOSE OF THE MATTER EXPARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LD . DR WHO RELIED ON THE ORDER OF THE TRIBUNAL. 3. HAVING CAREFULLY HEARD THE LD. DR AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THERE IS NO APPAREN T MISTAKE IN THE SECOND MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR TH E FOLLOWING REASONS :- 4. AS REGARDS ISSUE NO.(I) THAT THE RESPONDENT NAME HAS BEEN SHOWN AS ITO 3(3)(1), WE FIND THAT THE TRIBUNAL IN TH E ORIGINAL ORDER DATED 28.5.2008 HAS MENTIONED IN THE CAUSE TITLE THE R EVENUES APPEAL FIRST WHICH IS BASED ON THE APPEAL MEMO FILED BY THE REVENUE SHOWING THE NAME OF THE APPELLANT AS ITO 3(3)(1), MUMBAI AND FOLLOWING THE SAME THE NAME OF THE RESPONDENT IN THE ASSESSEE'S APPEAL H AS BEEN SHOWN AS SUCH. THIS BEING SO AND IN THE ABSENCE OF ANY PLE A TAKEN BY THE ASSESSEE IN THIS REGARD AT THE TIME OF HEARING OF T HE APPEAL, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE . MA NO.115/M/09 A.Y:99-00 3 5. AS REGARDS ISSUE NO. (II) WE FIND THAT THE TRIBUNAL AFTER DISCUSSING THE SAID ISSUE IN THE ORIGINAL ORDER DATED 28. 5.2008 HAS ALREADY DECIDED THE ISSUE AGAINST THE ASSESSEE AND IN THE M.A. ORDER DATED 2.12.2008 IT HAS BEEN HELD THAT THE SAME CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION, THEREFORE, THE TRIBU NAL REJECTED THE MISCELLANEOUS PETITION. IT HAS BEEN CONSISTENTLY HELD BY THE TRIBUNAL THAT THE M.A. FILED AGAINST THE M.A. ORDER PASSED BY THE TRIBUNAL IS NOT MAINTAINABLE. IN PARSI DAIRY FARM VS. ACIT IN MISCELLAN EOUS PETITION NO.734/MUM/2009 FOR ASSESSMENT YEAR 2003-04 DATED 2.12. 2009 IN WHICH ONE OF US (JM) WAS PARTY, THE TRIBUNAL AFTER FOL LOWING THE DECISION IN CIT & ANOTHER VS. ITAT & OTHERS (1992) 196 ITR 838 (ORISSA), DCIT VS. SARAF TRADING CO.(2001) 79 ITD 285 (COCHIN) AND ACIT VS. READING AND BALES EXPLORATION CO.(2007) 11 S OT 211 (DEL.) ONLY HAS HELD THAT SECOND M.A. FILED BY THE ASSESSEE AGAI NST THE M.A. ORDER PASSED BY THE TRIBUNAL DATED 25.5.2009 IS NOT M AINTAINABLE AND ACCORDINGLY THE SAME IS REJECTED. THIS VIEW ALSO FINDS SUP PORT FROM THE RECENT JUDGMENT OF THE HONBLE KERALA HIGH COURT IN CIT VS. AISWARYA TRADING CO. (2010) 192 TAXMAN 385 (KER.) WH EREIN IT HAS BEEN HELD THAT ONCE THE RECTIFICATION APPLICATION FILE D BY ONE OF THE PARTIES IS CONSIDERED AND DECIDED BY THE TRIBUNAL RIGHT LY OR WRONGLY ANOTHER RECTIFICATION APPLICATION ON THE SAME ISSUE IS NOT MAINTAINABLE AGAINST THE ORDER ISSUED BY THE TRIBUNAL U/S.254(2) O F THE ACT. RESPECTFULLY FOLLOWING THE SAME, THE M.A. FILED ON THE SAME ISSUE IS NOT MAINTAINABLE AND ACCORDINGLY THE SAME IS REJECTED. 6. AS REGARDS ISSUE NO. (III) WE FIND THAT THE TRIBUNAL AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN RE LYING ON THE DECISION OF HON'BLE SUPREME COURT IN CIT VS. VINAY CEMENT 213 CTR 268 (SC) HAS DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE MA NO.115/M/09 A.Y:99-00 4 IN THE LIGHT OF THE JUDGMENT OF THE HONBLE APEX COU RT SUPRA. SINCE THE TRIBUNAL HAS PASSED REASONED AND SPEAKING ORDER WE ARE O F THE VIEW THAT THERE IS NO MISTAKE IN SETTING ASIDE THE ISSUE TO TH E FILE OF THE ASSESSING OFFICER. THE ASSESSEE WANTS REVIEW WHICH IS NOT PERM ISSIBLE UNDER THE SCHEME OF SEC. 254(2) OF THE ACT. 7. FOR THE AFORESAID REASONS, THE SECOND MISCELLANEOUS PETI TION FILED BY THE ASSESSEE ON ALL THE ABOVE ISSUES IS, THEREFORE, REJ ECTED. 8. IN THE RESULT, MISCELLANEOUS PETITION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.10.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.10.2010. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.