I.T.O. - 31(2)(1), Mumbai V. SHRI JITENDRA S. MAMANIA, Mumbai

MA 138/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5304 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: NIMESH CHOTANI
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 138 / MUM /2019 ( ARISING OUT OF ITA N O. 1133 /MUM /201 8 ) ( ASSESSMENT YEAR : 2009 1 0 ) THE ITO 31(2)(1), 102, C - 13, 1 ST FLOOR, PRA TYAKSHAKAR BHAVAN, BKC, BANDRA (E), MUMBAI - 400051 VS. SHRI JITENDRA S MAMANIA, 1309 - A, AGARWAL INDUSTRIES, S V ROAD, JOGESHWAWARI (W), MUMBAI - 400102 PAN: ADDPM0623P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH (DR) A SSESSEE BY : SHRI NIMESH CHOTANI ( AR ) DATE OF HEARING: 26/04 /201 9 DATE OF PRONOUNCEMENT: 24 / 07 /201 9 O R D E R PER RAM LAL NEGI, JM THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION FOR REC ALLIN G OF ORDER DATED 10.08.2018 PASSED BY THE I BENCH MUMBAI IN A SSESSEES APPEAL ITA NO . 1133/MUM/2018 PERTAI NING TO THE ASSESSMENT YEAR 2009 - 10 ON THE GROUND THAT THE APPEAL IS COVERED BY THE EXCEPTIONS LAID DOWN VIDE AMENDMENT DATED 20.08.2018 TO THE CIRCULAR NO. 03/2018 . 2. THE LD. DEPARTMENTAL REPRESENTATIVE (DR ) SUBMITTED BEFORE US THAT THE I BENCH OF THE TRIBUNAL HAS DISMISSED THE CAPTIONED APPEAL ON THE GROUND THAT THE APPEAL IS NOT MAINTAINABLE IN VIEW OF THE CIRCULAR NO. 3/2018 DATED 11 TH JU LY 2018 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT). HOWEVER, AS PER THE LATEST POSITION , THE CASE IS COVERED BY EXCEPTIONS LAID DOWN VIDE AMENDMENT DATED 20.08.2018 WHICH SAYS THAT WHERE THE ADDITION IS BASED ON INFORMATION RECEIVED FROM THE EXTERN AL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DR I/SFIO/DIRECTOR GENERAL OF GST 2 M.A. NO . 138/MUM/2019 ASSESSMENT YEAR S : 2009 - 1 0 INTELLIGENCE , THE DEPARTMENT SHOULD CONTEST ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT INVOLVED IS LESS THAN THE MONITORY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR OR EVEN THERE IS NO TAX EFFECT. 3. THE LD. DR FURTHER POINTED OUT THAT IN THE PRESENT CASE INFORMATION WAS RECEIVED FROM SALES TAX DEPARTMENT OF MAHARASHTRA GOVT., THEREFORE THIS CASE IS COVERED BY THE EXCEPTIONS SPECIFIED BY THE AMENDMENT TO THE AFORESAID C IRCULAR. IN THE LIGHT OF THE AFORESAID FACTS, THE LD. DR SUBMITTED THAT THE MISTAKE APPARENT ON THE RECORD IS REQUIRED TO BE RECTIFIED BY RECALLING THE APPEAL FOR DECIDING THE SAME AFRESH ON MERITS. 4 . THE LD. COUNSEL FOR THE ASSESSEE , HO WEVER, OPPOSED THE APPLICATION ON THE GROUND THAT SINCE THE CIRCULAR WAS AMENDED AFTER THE DATE OF THE ORDER, THERE IS NO MISTAKE APPARENT IN THE ORDER TO RECTIFY THE SAME. 5 . WE HAVE HEARD THE RIVAL SUBMISSION AND ALSO PERUSED THE MATERIAL ON RECORD. I N THE LIGHT OF THE AMENDMENT TO THE CIRCULAR, WE ARE OF THE CONSIDERED VIEW THAT THE MISTAKE APPARENT POINTED OUT BY THE LD. DR FALLS WITHIN THE AMBIT OF SECTION 254 (2) OF THE INCOME TAX ACT, THEREFORE, THE SAME IS REQUIRED TO BE RECTIFIED BY RECALLING THE ORDER FOR FRESH ADJUDICATION OF THE APPEAL ON MERITS. 6 . ACCORDINGLY, WE ALLOW THE PRESENT MISCELLANEOUS APPLICATION AND RECALL THE ORDER DATED 10.08.2018 PASSED BY THE I BENCH OF THE TRIBUNAL IN THE INTEREST OF JUSTICE AND DIRECT THE REGISTRY TO POST THE CASE FOR HEARING AFRESH BY A REGULAR BENCH. IN THE RESULT, MISC. APPLICATION FILED BY THE REVENUE FOR A SSESSMENT YEAR 2009 - 10 IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JULY , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 24 / 07 / 2019 ALINDRA, PS 3 M.A. NO . 138/MUM/2019 ASSESSMENT YEAR S : 2009 - 1 0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI