M/s Macneill Engineering Ltd., Kolkata V. DCIT, CIR-1, KOLKATA, Kolkata

MA 123/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4542 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: ANIKEH BANERJEE

Judgement Text

M.A. NO. 123/KOL/2015 (IN I.T.A. NO 1355/KOL./2013) ASSESSMENT YEAR: 2006-2007 & M.A. NO. 35/KOL/2016 (IN I.T.A. NO 1338/KOL./2013) ASSESSMENT YEAR: 2006-2007 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 123/KOL/2015 (ARISING OUT OF I.T.A. NO. 1355/KOL/ 2013) ASSESSMENT YEAR: 2006-2007 & M.A. NO. 35/KOL/2016 (ARISING OUT OF I.T.A. NO. 1338/KOL/ 2013) ASSESSMENT YEAR: 2006-2007 M/S. MACNEILL ENGINEERING LIMITED,................. .........................APPLICANT BHASA, DIAMOND HARBOUR ROAD, BISHNUPUR, KONCHOWKI, 24-PARGANAS (SOUTH)-743 503 [PAN : AABCM 7149 L] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .................RESPONDENT CIRCLE-1, KOLKATA, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI ANIKEH BANERJEE, A.R., FOR THE ASSESSEE MD. GHAYAS UDDIN, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JUNE 17, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 17, 2016 O R D E R PER SHRI P.M. JAGTAP :- BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE I S SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED JUNE 08, 2015 PA SSED IN ITA NOS. 1355/KOL/2013 AND 1338/KOL/2013 ON THE FOLLOWING GR OUNDS:- 1. FOR THAT THE ORDER OF THE TRIBUNAL WAS DULY PAS SED BY THE HON'BLE ITAT/ KOL, 'SMC' BENCH ON DATED 08/06/2015 BEARING ITA NO.1338/K/2013 & 1355/K/2013 FOR THE A/Y.2006-07. M.A. NO. 123/KOL/2015 (IN I.T.A. NO 1355/KOL./2013) ASSESSMENT YEAR: 2006-2007 & M.A. NO. 35/KOL/2016 (IN I.T.A. NO 1338/KOL./2013) ASSESSMENT YEAR: 2006-2007 PAGE 2 OF 3 2. FOR THAT THE MATTER IS RELATED TO THE CROSS APPE AL BEARING ITA NO.1338/K/2013 & 1355/K/2013 FOR THE A/Y.2006-07. T HE DATE OF HEARING IS FIXED ON 04/06/2015 BEFORE THE HON'BLE I TAT /KOL, SMC BENCH. THE ADJOURNMENT PETITION WAS FILED ON 01/06/ 2015 AS THE NOTICE WAS HANDED OVER TO THE LD. ADVOCATE(S) ON 30/05/2015(SATURDAY) AFTER RECEIVING THE SAME. WITH IN THE SHORT SPAN IT WAS HARDLY POSSIBLE FOR THEM TO REPRESENT T HE MATTER AS THE RELEVANT DOCUMENTS WERE NOT PROVIDED WITH THEM. 3. FOR THAT ON THE DATE OF HEARING, I.E. ON 04/06/2 015, OUR LD. ADVOCATE MRS. SASWATI MITRA DUTTA APPEARED & PRAYED FOR AN ADJOURNMENT. WITHOUT GIVING THE REASONABLE OPPORTUN ITY THE APPEAL WAS DISPOSED ON THAT DATE. 4. FOR THAT IN THE SAID ORDER OF THE HON'BLE ITAT, SMC BENCH/ KOL DATED 08/06/2015 PASSED THE GROUNDS OF THE REVENUE AND NOTED THAT THE LD. CIT (A) ACCEPTED THE FRESH EVIDENCE FR OM THE ASSESSEE. ACTUALLY, DURING THE REMAND PRECEDING THE ASSESSEE APPEARED BEFORE THE LD. ASSESSING OFFICER AND HE VERIFIED TH E DOCUMENTS RELATED TO THE ADDITIONS MADE. ACCORDINGLY, THE REM AND REPORT WAS PREPARED AND THUS, THE APPEAL ORDER WAS PASSED ON THE BASIS OF THAT REMAND REPORT. 5. FOR THAT THE HONBLE MEMBER DID NOT CONSIDER THE SAID REMAND REPORT WHICH WAS AS PER U/R. 46A OF THE I.T. RULE. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY S UBMITTED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATIONS AND FURTHER REITERATED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US, IT APPEARS THAT PROPER AND SUFFICIENT OPPORTUNITY OF B EING HEARD WAS NOT GIVEN TO THE ASSESSEE, AS A RESULT OF WHICH THE FAC T THAT THE REMAND REPORT HAD BEEN CALLED FOR FROM THE ASSESSING OFFICER AND CONSIDERED BY THE LD. CIT(APPEALS) WHILE DISPOSING OF THE APPEALS OF THE ASSESSEE COULD NOT BE BROUGHT TO THE NOTICE OF THE TRIBUNAL. CONSEQUENTLY THE TRIBUNAL PROCEEDED TO RESTORE THE ENTIRE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION ON THE WRONG PRESUMPTION TH AT THE FRESH EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) H AD NEVER BEEN EXAMINED BY THE ASSESSING OFFICER. THERE IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNAL AND THE SAME BEING APPARENT FROM RECOR D, WE RECTIFY THE M.A. NO. 123/KOL/2015 (IN I.T.A. NO 1355/KOL./2013) ASSESSMENT YEAR: 2006-2007 & M.A. NO. 35/KOL/2016 (IN I.T.A. NO 1338/KOL./2013) ASSESSMENT YEAR: 2006-2007 PAGE 3 OF 3 SAME BY RECALLING THE ORDER OF THE TRIBUNAL DATED 0 8.06.2015 (SUPRA). BOTH THE APPEALS BEING ITA NOS. 1355/KOL/2013 AND 1 338/KOL/2013 ARE ACCORDINGLY RESTORED WITH A DIRECTION TO THE REGIST RY TO FIX THE SAME AFRESH FOR HEARING ON 17 TH AUGUST, 2016 AS ANNOUNCED IN THE OPEN COURT AND TAKEN NOTE OF BY THE LD. REPRESENTATIVES OF BOT H THE SIDES. 3. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 17, 2016 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 17 TH DAY OF JUNE, 2016 COPIES TO : (1) M/S. MACNEILL ENGINEERING LIMITED, BHASA, DIAMOND HARBOUR ROAD, BISHNUPUR, KONCHOWKI, 24-PARGANAS (SOUTH)-743 503 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, KOLKATA, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA (4) THE DEPARTMENTAL REPRESENTATIVE (5) CIT(APPEALS)-I, KOLKATA (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.