INCOME TAX OFFICER 3(1)(2), MUMBAI V. DATABASE SOFTWARE TECHNOLOGY PRIVATE LIMITED , MUMBAI

MA 120/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 1570 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO S . 116 - 1 20 / MUM /201 8 (ARISING OUT OF ITA NOS. 4399 - 440 3 /MUM/201 4 ) ( / ASSESSMENT YEAR : 20 0 5 - 2006 TO 2009 - 2010 ) ITO - 3(1)(2), MUMBAI - 400020 VS. DATABASE SOFTWARE TECHNOLOGY PVT. LTD., 1010, MAKER CHAMBERS V, NARIMAN POINT, MUMBAI - 400021 ./ PAN NO. : A A BCD 3835 C ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI ABI RAMA KARTHIKEYAN, SR.CITDR /AS SESSEE BY : SHRI NEEL KHANDELWAL, AR / DATE OF HEARING : 16 / 11 /201 8 / DATE OF PRONOUNCEME NT 02 / 01 /201 9 / O R D E R PER SHRI RAJESH KUMAR , A M : BY VIRTUE OF TH ESE MISCELLANEOUS APPLICATION S , THE REVENUE SEEKS AMENDMENT/RECTIFICATION OF THE ORDER DATED 07.07.2017 , PASSED BY THE TRIBUNAL IN ITA NOS. 4399 - 4403 /MUM/201 4 FOR THE ASSESSME NT YEARS 200 5 - 2006 TO 2009 - 2010 . 2. LD. D R BEFORE US SUBMITTED THAT THERE ARE CERTAIN APPARENT MISTAKE S IN THE ORDER WHICH NEED TO BE RECTIFIED. LD. DR POINTED OUT THAT ON THE DATE OF HEARING ON 23.06.2017, LD. DR , WHO ATTENDED THE PROCEEDINGS WAS SHRI SU MAN KUMAR, ON BEHALF OF THE REVENUE AND NOT SHRI PURUSHOTTAM KUMAR AS MENTIONED IN THE ORDER. SECONDLY, IT IS STATED THAT IN THE SAID ORDER IN PARA 6 OF THE ORDER, IT IS MENTIONED THAT AT THE TIME OF HEARING, THE LD. DR DID NOT PRESS GROUNDS OF APPEAL NO. 1 AND 2, MA NOS. 116 - 120 /MUM / 1 8 2 THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED . AND, IN PARA 12, IT IS STATED THAT GROUNDS OF APPEAL NO.1 & 2 RAISED BY THE REVENUE IN ALL THESE APPEALS ARE SAME AS HAS BEEN IN ASSESSMENT YEAR 2005 - 06 WHICH HAS BEEN DISMISSED AS NOT PRESSED. A CCORDINGLY, GROUNDS OF APPEAL NO.1 AND 2 ARE DISMISSED IN THE APPEALS AS WELL. LD. DR VEHEMENTLY SUBMITTED BEFORE THE BENCH THAT SHRI SUMAN KUMAR, DR NEVER PRAYED BEFORE THE BENCH THAT GROUNDS NO.1 & 2 ARE NOT PRESSED AND, THEREFORE, THE FINDING/DIRECTION GIVEN BY THE TRIBUNAL ON THESE GROUNDS ARE APPARENT MISTAKE WHICH NEEDS TO BE RECTIFIED WITHIN THE AMBIT OF PROVISIONS OF SECTION 254(2) OF THE ACT. 3. LD. AR, ON THE OTHER HAND, STATED THAT THE ORDER OF THE TRIBUNAL DOES NOT CONTAIN ANY MISTAKE, WHICH IS COVERED UNDER THE PROVISIONS OF SECTION 254 (2) OF THE ACT, THEREFORE, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE SHOULD BE DISMISSED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD AND THE IMPUGNED ORDER PASSED BY THE TRI BUNAL, WE OBSERVE THAT THE SAID ORDER CONTAINS APPARENT MISTAKE S WHICH REQUIRE RECTIFICATION AND ACCORDINGLY THE SAID ORDER IS BEING MODIFIED AS UNDER : - A) FIRST, THE NAME OF THE LD.DR APPEARED TO REPRESENT THE REVENUE IN THE SAID CASE WAS SHRI SUMAN KUMA R AND, THEREFORE, THE SAME IS SUBSTITUTED AS REPRESENTATIVE FOR THE REVENUE INSTEAD OF SHRI PURUSHOTTAM KUMAR AS MENTIONED IN THE ORDER. MA NOS. 116 - 120 /MUM / 1 8 3 B) SECONDLY, GROUNDS NO.1 & 2 HAVE BEEN WRONGLY STATED TO BE NOT PRESSED AND THE SAME IS BEING HEREBY RECTIFIED AND AME NDED IN THE FOLLOWING PARAS : - I) AFTER HEARING BOTH THE PARTIES AND EXAMINING THE RECORD INCLUDING THE ORDER OF CIT(A), WE OBSERVE THAT THE OBJECTION RAISED BY THE REVENUE THAT ADDITIONAL EVIDENCE ADMITTED BY THE CIT(A) AT THE APPELLATE STAGE WITHOUT AFFO RDING REASONABLE OPPORTUNITY TO THE AO, DOES NOT CARRY ANY WEIGHT AS THE ASSESSEE HAS NOT FILED ANY ADDITIONAL EVIDENCE ON ITS OWN AND WHATEVER THE EVIDENCE S FILED BY THE ASSESSEE ARE ONLY AT THE DIRECTION S OF THE CIT(A) TO WHICH RULE 46A(3) OF THE I.T.R ULES, 1962 ARE NOT APPLICABLE. THEREFORE, GROUNDS NO.1 & 2 RAISED BY THE REVENUE IN THESE APPEALS ARE DISMISSED IN THE LIGHT OF OUR ABOVE OBSERVATIONS. ACCORDINGLY, WE MODIFY THE ORDER DATED 07.07.2017 , PASSED IN ITA NOS.4399 - 4403/MUM/2014 AS INDICATED HE REINABOVE. 5 . IN THE RESULT, ALL MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE ALLOWED IN PART AS STATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 / 01 /201 9 S D/ - ( MAHAVIR SINGH ) SD/ - (RAJESH KUMAR) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATED 02 / 01 /201 9 . . / PRAKASH KUMAR MISHRA , S R.PS. MA NOS. 116 - 120 /MUM / 1 8 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSISTANT REGISTRAR ) , / ITAT, MUMBAI 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), MUMBAI 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//