BHUMIRAJ CONSTRUCTIONS, NAVI MUMBAI V. ASST CIT 15(1), MUMBAI

MA 12/MUM/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9857 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 09-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B. R. BASKARAN , ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 12 /M/201 8 (ARISING OUT OF ITA NO. 5267 /MUM/201 4 ) ( / ASSESSMENT YEAR: 2007 - 08 ) BHUMIRAJ CONSTRUCTIONS D/5 - 6 BIG SPLASH, SECTOR - 7, VASHI NAVI MUMBAI - 400705. / VS. CIT - 26 MUMBAI - /. /. PAN/GIR NO. : AAFFB 3546 H ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 07 .0 9 .201 8 /DATE OF PRONOUNCEMENT: 26. 09 . 2018 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APP LICATION MOVED BY THE ASSESSEE BEARING NO.12 /M/18 ARISING OUT OF THE ITA. NO. 5267 /M/1 4 FOR THE A.Y.2007 - 08 . 2. IT IS AVERRED IN THE APPLICATION THAT THE APPEAL BEARING NO.5267/M/2014 HAS BEEN DISMISSED BY THE HONBLE ITAT BY VIRTUE OF ORDER DATED 13.09.2017. IT IS ARGUED BY THE LD. REPRESENTATIVE OF THE ASSESSEE IN THE SAID APPEAL THAT THE CIT(A) BY VIRTUE OF PARA NO. 4.2.1 ON PAGE NO. 12 IN HIS ORDER DATED 19.03.2012 RAISED THE ESTIMATED ADDITION TO THE TUNE OF RS.80,45,873/ - FOR THE FIRST TIME AND DID NOT INITIATE THE PENALTY BUT UPON THE ADDITION OF THE CIT(A) ON ESTIMATION BASIS, THE ASSESSING OFFICER INITIATED THE PENALTY WHICH IS WRONG AGAINST LAW AND FACTS AND THIS CONTENTION HAS NOT BEEN DEALT BY THE HONBLE ITAT, THEREFORE, IN ASSESSEE BY: SHRI PRADIP KAPASI REVENUE BY: S HRI S. K. BEPARI MA 12 / MUM/201 8 THE SAID CIRCUMSTANCES, THERE IS MISTAKE APPARENT ON RECORD HENCE THE ORDER DATED 13.09.2012 IS LIABLE TO BE RECALLED. 3. NOTICE GIVEN. 4 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. ON APPRAISAL OF THE L OG BOOK, WE NOTICED THAT THE REPRESENTATIVE OF THE ASSESSEE HAS RAISED THIS CONTENTION THAT THE ADDITION TO THE TUNE OF RS.80,45,8 73/ - WAS RAISED ON ESTIMATION BASIS BY THE CIT( A) IN HIS ORDER DATED 1 9.03.2012 WHO DID NOT INITIATE THE PENALTY BUT THE AO INITIATED THE PENALTY AND THIS ARGUMENT HAS NOT BEEN DEALT BY THE HONBLE ITAT WHILE PASSING THE ORDER DATED 13.09.2017. IT IS A MIS TAKE APPARENT ON RECORD IN VIEW OF THE PROVISION U/S 254(2) OF THE ACT, THEREFORE, WE ARE OF THE VIEW THAT WITHOUT DEALING THIS CONTENTION THE ORDER DATED 13.09.2017 IS NOT JUSTIFIABLE. HENCE WE RECALL THE ORDER AND DIRECT THE REGISTRY TO REFIX THE MATTER IN DUE COURSE . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS HEREBY ALLOWED . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 26. 09 . 2018 . SD/ - SD/ - ( B. R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER M UMBAI, DT: 26. 09 . 2018 . VIJAY COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, B , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES