DCIT,Central Circle-I, Kolkata, Kolkata V. Sheo Kumar Kajaria, Kolkata

MA 140/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9451 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 28-08-2012
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK LD
• Assessee Lawyers: A K TIBREWAL FCA LD

Judgement Text

, A, , IN THE INCOME TAX APPELLATE TRIBUNAL A B ENCH : KOLKATA [ , ! 1#$, ] [BEFORE HONBLE SHRI PRAMOD KUMAR,, AM & HONBLE S HRI GEORGE MATHAN, JM %% $ & /M.A. NOS. 140 & 141/KOL/2012 [IN I.T A NO. 1425 & 1426/KOL/2010 A.YS. 2004-05 & 2005-06] D.C.I.T, C.C -1, KOLKATA VS. SHEO KUMAR KAJARIA PAN: AFCPK 7875A [ /APPLICANT ] [)#*/ RESPONDENT ] /APPLICANT BY : SHRI A.K. PRAMANICK, LD. S R.DR )#* / RESPONDENT BY : SHRI A.K TIBREWAL, FCA , LD. AR $, - . /DATE OF HEARING : 19-10-2012 /0 - . /DATE OF PRONOUNCEMENT: 9/11/2012 1 /ORDER ! 1#$, SHRI GEORGE MATHAN, JUDICIAL MEMBER THESE MISCELLANEOUS PETITIONS ARE FILED BY THE RE VENUE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NOS. 1425 & 1426/KOL/2010 DATED 01 -08-2012 FOR THE ASSESSMENT YEARS 2004-05 & 2005-06 RESPECTIVELY. 2. SHRI A.K. PRAMANICK, LEARNED SR.DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI A.K TIBREWAL, FCA, LEARNED .AR REPRESENTED ON BE HALF OF THE ASSESSEE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE L EARNED SR.DR THAT IN THE SAID ORDER THE TRIBUNAL HAS RECORDED THAT THE LEARNED DR HAD SUBM ITTED THAT ALL THE CONDITIONS OF EXPLANATION 5 TO SECTION 271(1)( C) OF THE I.T ACT 1961 STOOD MET IN THE INSTANT CASE I.E. THE LEANED DR HAD CONCEDED TO THE APPLICABILITY OF CLA USE (2) OF EXPLANATION 5 OF SECTION 271(1)( C) OF THE I.T ACT 1961 FOR THE RELEVANT YEA RS. IT WAS FURTHER SUBMITTED THAT IN PARA 5 OF THE SAID ORDER THE TRIBUNAL HAD HELD THAT THE L EARNED DR HAD CONCEDED DURING THE HEARING THAT THE ASSESSEES CASE FOR THE RELEVANT A SSESSMENT YEARS WAS SQUARELY COVERED BY EXPLANATION 5 TO SECTION 271(1)( C) OF THE I.T ACT 1961. IT WAS THE SUBMISSION THAT ON THE BASIS OF SAID RECORDING OF CONCESSION THE TRIBUNAL HAD DISMISSED THE REVENUES APPEALS. THE LEARNED DR FILED AN AFFIDAVIT SUBMITTING THAT H E HAD NOT CONCEDED TO THE APPLICABILITY [M.A. NO.S.140 & 141/KOL/12-A-GM 2 OF EXPLANATION 5 OF SECTION 271(1)( C) OF THE I.T A CT 1961. HE HAD ALSO FILED THE COPIES OF ORDER SHEET NOTINGS TO THIS EFFECT. IT WAS THE SU BMISSION THAT THE TRIBUNAL HAD FURTHER PROCEEDED TO EXAMINE THE APPLICABILITY OF EXPLANA TION 5 OF SECTION 271(1)( C) OF THE I.T ACT 1961 AND HELD THAT THE IMMUNITY UNDER EXPLANATI ON 5 OF SECTION 271(1)( C) OF THE ACT WAS NOT AVAILABLE TO THE ASSESSEE FOR THREE REASON S. THE SAID REASONS WERE AT PARA 4 AND 5 OF THE SAID ORDER OF THE TRIBUNAL. IT WAS THE FURT HER SUBMISSION THAT THE TRIBUNAL COULD NOT ADJUDICATE AN ISSUE ON CONCESSIONS GIVEN BY EITHER PARTIES. IT WAS SUBMITTED THAT IN ANY CASE NO CONCESSION WAS GIVEN BY THE LEARNED DR, AS SUCH CONCESSION CANNOT BE GIVEN BY THE LEARNED DR WITHOUT SPECIFIC WRITTEN CONSENT O F THE AUTHORITY AUTHORIZING THE FILING OF THE APPEAL. IT WAS ALSO SUBMITTED THAT AS THE SAID ORDER OF THE TRIBUNAL CONTRADICTED ITSELF IN SO FAR AS IT HAD AT ONE POINT RECORDED THAT THE LEA RNED DR HAD CONCEDED THE ISSUE FURTHER PROCEEDED TO EXAMINE AND COME TO A CONCLUSION THAT THE IMMUNITY UNDER EXPLANATION 5 OF SECTION 271(1)( C) OF THE ACT WAS NOT AVAILABLE TO THE ASSESSEE, OUGHT TO HAVE ALLOWED THE REVENUES APPEAL AND NOT DISMISSED IT. IT WAS THE SUBMISSION THAT THE IMPUGNED ORDER OF THE TRIBUNAL WAS LIABLE TO BE RECALLED AND RE-HEARD AS THE SAID ORDER WAS ERRONEOUS AND CONTAINED FACTUAL MISTAKE IN RESPECT OF RECORDING O F CONCESSION BY THE LEARNED DR AFTER HAVING REACHED A CONCLUSION THAT IMMUNITY WAS NOT AVAILABLE TO THE ASSESSEE UNDER EXPLANATION 5 OF SECTION 271(1)(C ) OF THE I.T ACT 1961. 4. IN REPLY, THE LEARNED AR OF THE ASSESSEE HAS V EHEMENTLY SUPPORTED THE IMPUGNED ORDER OF THE TRIBUNAL. IT WAS THE SUBMISSION THAT T HERE WAS NO MISTAKE APPARENT FROM RECORD. IT WAS THE FURTHER SUBMISSION THAT THE O RDER OF THE TRIBUNAL DID NOT CONTAIN ANY MISTAKE, WHICH COULD BE RECTIFIABLE U/S. 254(2) OF THE I.T ACT 1961. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAV E ALSO PERUSED THE AFFIDAVIT AS FILED BY THE LEARNED DR. THIS AFFIDAVIT AS FILED BY THE LEARNED DR HAS NOT BEEN SHOWN TO BE WRONG. FURTHER A PERUSAL OF THE IMPUGNED ORDER OF T HE TRIBUNAL IN ITA NOS. 1425 & 1426/KOL/2010 FOR THE ASSESSMENT YEARS 2004-05 & 20 05-06 DATED 01-08-2012 CLEARLY SHOWS THAT THE TRIBUNAL HAS REACHED A CONCLUSION IN PARA 4 OF ITS ORDER THAT IMMUNITY UNDER EXPLANATION 5 OF SECTION 271(1)( C) OF THE I .T ACT 1961 WAS NOT AVAILABLE TO THE ASSESSEE. HOWEVER, IN PARA 5 THE TRIBUNAL HAS RECO RDED A CONCESSION GIVEN BY THE LEARNED DR AND DISMISSED THE REVENUES APPEALS FOR BOTH THE ASSESSMENT YEARS. NO EVIDENCE OR RECORD TO SHOW THAT THE LD. DR HAS CONCEDED THE ISS UE IS ALSO PLACED BEFORE THE TRIBUNAL. [M.A. NO.S.140 & 141/KOL/12-A-GM 3 THIS BEING SO, WE ARE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM RECORD. CONSEQUENTLY, THE SAID ORDER OF THE TRIBUNAL IN ITA NOS. 1425 & 1426/KOL/2010 FOR THE A.YS. 2004-05 & 2005-06 DATE D 01-08-2012 STANDS RECALLED IN ITS ENTIRETY. THE REGISTRY IS DIRECTED TO POST THESE AP PEALS FOR RE-HEARING AFRESH IN THE REGULAR COURSE OF HEARING BY ISSUING NOTICES TO THE RESPECT IVE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATIONS FILED BY T HE REVENUE ARE ALLOWED 1 2 $ 3 45 ORDER PRONOUNCED IN THE OPEN COURT ON 9-11-2012 SD/- SD/- , ] [ ! 1#$ , ] [ PRAMOD KUMAR, ACCOUNTANT MEMBER ] [GEORGE MATHAN, JUDICIAL MEMBER ] . / DATED 9/11-2012 1 - 66% 7%0/ COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT : DCIT, CC-1, KOLKATA 2 )#* / RESPONDENT : SHEO KUMAR KAJARIA 3. 61$/ CIT, 4. 61$ ()/ CIT(A), 5. ?63 6$/ DR, KOLKATA BENCHES, KOLKATA **PP/SPS [)% 6/ TRUE COPY] 1$/ BY ORDER, 4 /ASSTT REGISTRAR.