ANANDSONS OVERSEAS TRADING P. LTD, V. DCIT 6(1),

MA 122/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9131 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 27-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER & SHRI I.P.BANSALJUDICIAL MEMBER M.A.N9.122/MUM/2012 (ARISING OUT OF ITA NO.579/MUM/2005,A.Y.2001-02) M/S. ANANDSONS OVERSEAS TRADING PVT. LTD., 1 ST FLOOR, 1 ST MOTISHA CROSS ROAD, LOVE LANE, BYCULLA, MUMBAI 400 027. PAN:AAACA 4012D (APPLICANT) VS. THE DCIT 6(1), MUMBAI. (RESPONDENT) APPLICANT BY : SHRI BHUPENDRA SHAH RESPONDENT BY : SHRI AMERDEEP DATE OF HEARING : 10/08/2012 DATE OF PRONOUNCEMENT : 1 0/08/2012 ORDER PER I.P.BANSAL, J.M VIDE AFOREMENTIONED MISCELLANEOUS APPLICATION FI LED ON 27/02/2012 THE ASSESSEE IS SEEKING RECTIFICATION OF ORDER PASS ED BY THE TRIBUNAL DATED 5/9/2007 IN APPEAL FILED BY THE ASSESSEE I.E. ITA N O.579/MUM/2005. THE APPEAL WAS REPRESENTED BY THE AUTHORIZED REPRESENT ATIVE APPEARED ON BEHALF OF THE ASSESSEE AND THE MATTER WAS RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER VERIFY ING THE FACTS ON RECORD OR THE FACTS AS MAY BE BROUGHT BEFORE THE AO BY THE AS SESSEE AND ALSO TO GIVE REASONABLE OPPORTUNITY OF HEARING. THE SAID APPEAL WAS HEARD ON 3/9/2007 AND ORDER WAS PRONOUNCED DURING THE COURSE OF HEARI NG ITSELF. 2. IN THE AFOREMENTIONED APPLICATION THE ASSESSEE O N THE BASIS OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPO RTS IS SAYING THAT THERE M.A.N9.122/MUM/2012 2 IS A MISTAKE IN THE ORDER OF THE TRIBUNAL AND THAT THE SAME IS NOT IN ACCORDANCE WITH LAW DESCRIBED IN THE AFOREMENTIONED DECISION. 3. DURING THE COURSE OF HEARING IT WAS POINTED OUT TO LD. A.R THAT ORDER OF THE TRIBUNAL WAS DATED 5/09/2007 AND AS PER THE P ROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961, THE MISTAKE IF ANY IN THE ORDER OF THE TRIBUNAL CAN BE RECTIFIED WITHIN FOUR YEARS FROM TH E DATE OF THE ORDER. THE APPLICATION IS FILED BY THE ASSESSEE ONLY ON 27/02/ 2012, WHICH IS MUCH BEYOND THE PERIOD OF 4 YEARS FROM THE DATE OF THE O RDER. THEREFORE, THE APPLICATION FILED BY THE ASSESSEE IS BEYOND LIMITAT ION AND IS REQUIRED TO BE DISMISSED ON THIS GROUND ONLY. HOWEVER, LD. A.R SU BMITTED THAT ASSESSEE DID NOT RECEIVE THE AFOREMENTIONED ORDER WHICH FAC T IS EVIDENT FROM THE CERTIFIED COPY OF THE ORDER FILED BEFORE THE TRIBUN AL ALONGWITH THIS APPLICATION. THE ASSESSEE COULD OBTAIN COPY OF THE TRIBUNAL ORDER ONLY ON 30/3/2011, THEREFORE, APPLICATION FIELD BY THE ASSE SSEE CANNOT BE DISMISSED ON THE GROUND OF LIMITATION. 4. ON THE OTHER HAND, RELYING UPON THE PROVISIONS O F SECTION 254(2) OF THE ACT IT WAS THE CASE OF LD. D.R THAT THE APPLICATIO N FILED BY THE ASSESSEE BEING BEYOND LIMITATION SHOULD BE DISMISSED. REFE RENCE WAS MADE TO DECISION OF THE FIVE MEMBER BENCH DECISION OF ITAT IN THE CASE OF ARVIND BHAI H. SHAH VS. ACIT, 91 ITD 101(SB)(AHD), WHEREIN IT HAS BEEN HELD THAT IF THE APPLICATION IS FILED BEYOND 4 YEARS FROM THE DA TE OF THE ORDER THEN THE TRIBUNAL HAS NO POWER TO ENTERTAIN THE SAME. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. ACCORDING TO AFOREMENTIONED DECIS ION OF SPECIAL BENCH BELATED APPLICATION CANNOT BE ENTERTAINED, HENCE, T HE SAME IS LIABLE TO BE DISMISSED. NOW CONSIDERING THE CLAIM OF LD. A.R T HAT COPY OF ORDER OF TRIBUNAL COULD BE OBTAINED BY THE ASSESSEE ONLY ON 30/3/2011. EVEN IF SUCH CONTENTION OF THE ASSESSEE IS TO BE CONSIDERED THEN ALSO THERE WAS TIME M.A.N9.122/MUM/2012 3 TO FILE THE APPLICATION WITHIN FOUR YEARS AND SUCH TIME WAS AVAILABLE TO THE ASSESSEE UPTO 5/9/2011. THE ASSESSEE DID NOT AVAI L SUCH OPPORTUNITY ALSO AND HAS FILED THE APPLICATION ONLY IN FBRUARY,2012 . THEREFORE ALSO, UNDER THE FACTS OF THE CASE THE APPLICATION FILED BY THE ASSESSEE CANNOT BE ENTERTAINED. 6. IN VIEW OF THE ABOVE DISCUSSIONS THE MISCELLANE OUS APPLICATION FIELD BY THE ASSESSEE BEING BELATED ONE IS REJECTED AND DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 10 TH DAY OF AUGUST, 2012 SD/- SD/- ( R.S.SYAL ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 10 TH AUGUST, 2012. COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RL BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. `