Shri Keyur Jitendra Patel, Ahmedabad V. The Income Tax Officer, Ward-6(1)(4), Ahmedabad

MA 133/AHD/2021

AI Insights

This case involves a Miscellaneous Application filed by the assessee, Keyur Jitendra Patel, against the order of the Income Tax Appellate Tribunal dated 22.02.2021 concerning the Assessment Year 2012-13. The application pointed out factual mistakes in the Tribunal's order and noted that the second ground of appeal was not addressed. Additionally, it was highlighted that the order was issued beyond the 90-day period allowed for pronouncement after the hearing. The Tribunal acknowledged the factual discrepancies and the oversight of the second ground of appeal, leading to the decision to recall the order and schedule a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129862 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-01-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 09-09-2021
• Other Referred Cases: Shivsagar Veg. Restaurant v. Asst. CIT, Crompton Grieves Ltd. v. CIT, Otters Club v. DIT (E), G. Shoe Exports v. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 1 of 6 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A. No.133/Ahd/2021 (In ITA No.1343/Ahd/2017) Assessment Year: 2012-13 Keyur Jitendra Patel, vs. Income Tax Officer, 12, Amar Society, Ward – 6(1)(4), Ahmedabad. Opp. Balvatika, Maninagar, Ahmedabad – 380 008. [PAN – AFIPP 8430 J] (Appellant) (Respondent) Assessee by : Shri K.C. Thaker, AR Revenue by : Shri V.K. Mangla, Sr. DR Date of hearing : 13.01.2023 Date of pronouncement : 18.01.2023 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This Miscellaneous Application is filed by the Assessee in respect of order dated 22.02.2021 passed by the Tribunal. 2. The Ld. AR submitted that there are certain factual mistakes committed by the Tribunal which has been pointed out in the Miscellaneous Application. The Ld. AR further submitted that as regards to ground no.2 contested before the Tribunal in the appeal was not considered at all by the Tribunal. Ld. AR further submitted that the judgement delivered by the Tribunal is beyond 90 days. The Miscellaneous Application filed by the assessee is as follows :- “We have received the appellate order passed by the Hon'ble Tribunal in appeal ITA No.l343/Ahd/2017 for the A. Y. 2012-13, showing date of pronouncement 22-02-2021, endorsed for dispatch on 12-03-2021 and delivered to us on 16-03-2021. The applicant files this Miscellaneous Application u/s. 254(2) of the Act in respect of the said order which, the M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 2 of 6 appellant humbly submits, suffers from mistakes apparent from record and not having been passed in conformity with the relevant regulations. Relevant facts in this regard are explained hereafter. 2. The assessee-appellant had raised two substantive grounds of appeal as reproduced in paragraph 1, page 2 of the impugned order. In the course of appellate proceedings appellant filed on 02-04-2019, two Paper-books, Volume-I with written submission pages A to C and documents running into pages 1 to 132 and Volume-II with written submission pages A & B and documents running into pages 1 to 282. 2.2 In the course of appellate proceedings, appellant also filed a List of judgments (six cases) relied upon by him, together with copies of the said judgments, on 23-11-2020 in support of the grounds of appeal, and a copy of the list and the set of judgments was also supplied to the CIT-DR. 3. The appeal was heard on 23-11-2020 and both, the AR for the appellant and the CIT-DR, Shri O. P. Sharma (not Shri Lalit P. Jain. Sr. D.R.) argued the case at length. The Appellate Order showing date of pronouncement 22.02.2021, was endorsed for dispatch on 12-03-2021 and was actually delivered to the appellant on 16-03-2021. 4. The applicant has filed this Misc. Application with a request for recall of the order for the reasons stated below. a) The applicant submits that the delay in passing of order has resulted in certain mistakes in the order and important issues have remained to be considered which could have impacted the final decision. i. As stated above, the case was heard at length and both the AR of the appellant as well as the CIT-D.R., Shri O. P. Sharma (not Shri Lalit P. Jain, Sr. D.R.), had presented arguments and referred to various pages of the voluminous paper-books. In the impugned order, such contentions are not referred to. Reference regarding the submission of the CIT-D.R. is limited to just his relying upon order impugned in appeal. ii. In paragraphs 3 and 4 of the order there is narration regarding the issue dealt with in the assessment order passed by the AO. In paragraph 5, Hon'ble Bench has dealt with AR's citing of judgments during hearing before it, viz. decision of the coordinate Jaipur Bench and the judgment of the Hon'ble Rajasthan High Court affirming the same. In subsequent paragraph 6 Hon'ble Bench has gone back to the first appeal proceedings mentioning that "Thereafter, the assessee preferred first statutory appeal before the Id. CIT(A) who confirmed the action of the AO. iii. In paragraph 5, it is mentioned that the facts in the said (relied upon case dealt with by Jaipur Bench and Rajasthan High Court) case are totally different, based on observations like, M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 3 of 6 1. "the agricultural land was purchased on behalf of the company, GFFR Pvt. Ltd. in the name of director, was shown in the Balance Sheet of the Company", 2. "the company made the payments and the short-term capital gain was also shown by the company" and, 3. "But in the present case, no short-term capital gain was shown in the return of the company". The last observation is factually not right. It was shown by referring to paper-book pages that the land did appear in the accounts of the Company and the payment was made/borne by the company (P/b-Vol-II/p.187-188) and that the sale transaction was duly accounted for and resultant gain/loss was reflected in the return of the Company(P/b-Vol-I/p.25-28). iv. In paragraph 8 it is observed that that payments for purchase of land were made from individual account and that company's bank account was opened on 22-09-2008, i. e. after the purchase of land. This factually incorrect observation has come to be made despite the fact that it was shown by referring to paper-book pages (P/b-Vol-I/p.77-96) that sale deed was executed on 23-06- 2008, the company was incorporated on 22-01-2008 (P/b-Vol- II/p.158) and its bank account was opened on 14-02-2008 (P/b- Vol-I/p.132). Even two payments were shown from the company' s bank statement which is part of paper-book (P/b-Vol-II/p.224). Applicant submits that the first ground of appeal has been decided based on observations shown to be factually mistaken. Therefore, the order needs to be recalled in the interest of justice. b) Further, applicant submits that the second ground of appeal contesting the addition of Rs.51,61,5007- has remained to be adjudicated by the Hon'ble Tribunal. On this issue also the applicant had referred to paper book pages (P/b-Vol-I/p.4-24) and relied upon the judgments of the Jurisdictional High Court and Tribunals as per the list of judgments filed with copies, on 23.11.2020. c) The applicant also humbly submits that the impugned order deserves to be for the reason that the order has been passed after lapse of 90 days from the date of hearing. The hearing of the appeal took place on 23-11-2020 and the order in appeal is shown to have been pronounced on 22-02-2021, i. e. on the 92 nd day from the date of hearing. Applicant submits that the Rule 34(5)(c) provides that after hearing, the order is ordinarily to be pronounced within 60 days and if it is not practicable to do so "on the ground of exceptional and extraordinary circumstances of the case" Bench may fix future date and "such date shall not M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 4 of 6 ordinarily be a date beyond a further period of 30 days", and "due notice of the day so fixed shall be given on the notice board". Applicant submits that in the instant case the impugned order does not record exceptional and extraordinary circumstances leading the delayed pronouncement beyond the period of 60 days. The applicant submits that no notice of the date of pronouncement fixed after expiry of 60 days was given on the notice board of the ITAT website. d) The applicant submits that in cases involving similar circumstances, where the orders were pronounced beyond the period of 90 days, the appellate orders have been recalled. In this regard the applicant relies upon the judgment of the Hon'ble Bombay High Court in the case of Shivsagar Veg. Restaurant v. Asst. CIT, reported in 317ITR 433. e) The applicant submits that the said Bombay High Court judgment has been followed by the coordinate Bench, ITAT, Mumbai Bench- 'C', in the case of Crompton Grieves Ltd. v. CIT, reported in (2018) 53 CCH 0039 Mum Trib. In this case the Hon'ble ITAT has referred to another Bombay High Court judgment in the case of Otters Club v. DIT (E), in Writ Petition No. 2889 of 2016 vide order dated 12.01.2017 and also decision of the coordinate bench in the case of G. Shoe Exports v. ACIT reported in [2018] 89 taxmann.com 308 (Mumbai tribunal) and extracted paragraphs therefrom. In these cases, the Hon'ble Bombay High Court and the Coordinate Mumbai Bench have referred to the provisions of Rule 34(5)(c) and Rule 34(8) of the ITAT Rues, 1963, and have directed recall of the appellate order passed in appeal. Following the same, the Hon'ble Tribunal has held in the case of Crompton Grieves Ltd. (supra), as under. "7. From the above, we find that the Hon'ble jurisdictional High Court in the case referred above has held that unexplained delay in pronouncement of the order renders it vulnerable. It was held that such judgments were bad in law and were to be set aside. It was expounded that justice should not only be done, but should appear to have been done and that justice delayed is justice denied. The Hon'ble High Court has also referred to Hon'ble Apex Court decision where serious note was taken of the prejudice caused to the litigant due to delay in delivery or pronouncement of the judgment for the reasons not attributable either with the litigant or to the state or to the legal profession." Applicant humbly submits that the above extract from Tribunal's decision lays particular emphasis that "justice should not only be done, but should appear to have been done and that justice delayed is justice denied" and has taken note that the Hon'ble High Court has also referred to Hon'ble Apex Court decision where serious note was taken of the prejudice caused to the litigant due to delay in delivery or pronouncement of the judgment M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 5 of 6 for the reasons not attributable either with the litigant or to the state or to the legal profession. 5. In view of the above facts and circumstances of the case and the mistakes apparent from record, we humbly request the Hon'ble Tribunal to kindly recall the order Dt.22-02-2021 passed in this case in the best interest of justice.” 3. Ld. DR relied upon the order of the Tribunal. 4. We have heard both the parties and perused all the relevant material available on record. As regards the first contention of the Ld. AR that there is certain factual discrepancies mentioned in the order dated 22.02.2021 appears to be correct. As regards ground no.2, the same was not considered at all by the Tribunal. The order passed by the Tribunal is beyond 90 days, therefore, there is a mistake apparent on record and hence order dated 22.02.2021 is hereby recalled and the Registry is directed to fix the ITA No.1343/Ahd/2017 for fresh hearing on 23.02.2023. Notices may be issued to both the parties. 5. In the result, Miscellaneous Application filed by the Assessee is allowed. Order pronounced in the open Court on this 18 th day of January, 2023. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 18 th day of January, 2023 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File M.A. No.133/Ahd/2021 Assessment Year: 2012-13 Page 6 of 6 By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad