NAVALBEN JAWHAR DEDHIA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 23, MUMBAI

MA 125/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7097 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: B V JHAVERI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.125/M/2018 (ARISING OUT OF ITA NO.2797/M/2015) ASSESSMENT YEAR: 2010-11 SMT. NAVALBEN J. DEDHIA, (L/H OF THE LATE SHRI JAWAHAR D. DEDHIA), SHOP NO.10, BONNEY PLAZA, S.V. ROAD, ANDHERI (WEST), MUMBAI 400 PAN: AABPD 2382B VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-23, ROOM NO.409, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI B.V. JHAVERI, A.R. REVENUE BY : SHRI D.G. PANSARI, D.R. DATE OF HEARING : 03.08.2018 DATE OF PRONOUNCEMENT : 09.08.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE ASSESSEE REQUESTING TO RECALL THE ORDER DATED 1 8.08.2017 ARISING OUT OF ITA NO.2797/M/2015 A.Y. 2010-11. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT WHILE PASSING THE IMPUGNED ORDER THE TRIBUNAL HAS NOT DEA LT WITH THE ISSUE OF WRONGFUL LEVY OF PENALTY ON AN ADDITIO N OF RS.5,09,000/- WHICH HAS BEEN CHALLENGED IN GROUND NO .5 OF THE GROUNDS OF APPEAL AND THEREFORE THE SAME IS APP ARENT MA NO.125/M/2018 SMT. NAVALBEN J. DEDHIA, (L/H OF THE LATE SHRI JAWAHAR D. DEDHIA) 2 MISTAKE IN THE ORDER WITHIN THE MEANING OF SECTION 254(2) OF THE ACT AND THE SAID ORDER SHOULD BE RECALLED TO TH AT EXTENT. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT TH ERE IS NO MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL AS A VERY SPEAKING ORDER HAS BEEN PASSED AND THUS RELIED ON T HE ORDER OF THE ITAT. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT WHILE PASSING THE ORDER D ATED 18.08.2017 THE BENCH HAS NOT ADJUDICATED THE ISSUE OF CONFIRMATION OF PENALTY BY LD. CIT(A) IN RESPECT OF ADDITION OF RS.5,09,000/- WHICH HAS BEEN CHALLENGED BY THE ASSES SEE IN GROUND NO.5 OF THE GROUNDS OF APPEAL. THE NON ADJUDI CATION OF GROUND NO.5 CONSTITUTES A MISTAKE WHICH IS APPAR ENT ON THE FACE OF THE ORDER AND HENCE THE SAME REQUIRES RECTI FICATION BY RECALLING THE ORDER. WE, THEREFORE, RECALL OUR ORDE R DATED 18.08.2017 TO THE EXTENT OF NON ADJUDICATION OF GROUN D NO.5. 5. THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.08.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED:09.08.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH MA NO.125/M/2018 SMT. NAVALBEN J. DEDHIA, (L/H OF THE LATE SHRI JAWAHAR D. DEDHIA) 3 //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.