Shri Govind Ganpatlal Thakkar, Ahmedabad V. The ACIT (OSD), Circle-10, Ahmedabad

MA 144/AHD/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4696 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 11-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V.K. SINGH
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ A’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA No.144/Ahd/2021 in आयकर अपील सं./ITA No. 403/AHD/2016 िनधाᭅरण वषᭅ/Asstt. Year: 2011-12 Govind Ganpatlal Thakkar, B-204, Krishna Complex, Bodekdev, Ahmedabad-380061. PAN: AAAHT8273L Vs. A.C.I.T(OSD), Circle-10, Ahmedabad. (Applicant) (Respondent) Assessee by : Shri A.C. Shah, A.R Revenue by : Shri V.K. Singh, Sr.D.R सुनवाई कᳱ तारीख/Date of Hearing : 08/04/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 20/04/2022 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The assessee by way of this Miscellaneous Application is seeking to recall the order of the ITAT bearing ITA no.403/Ahd/2016 on the reasoning that there is a mistake apparent from the record. 2. The Ld. AR before us submitted that at the time of hearing the reliance was placed on the order of the Mumbai Tribunal in the case of ITO vs Bhagwan T. M.A No.144/Ahd/2021 ITA no.403/AHD/2016 A.Y. 2011-12 2 Fatnani reported in 58 taxmann.com 227. However, the Tribunal while framing the order has not considered the same. According to the Ld. AR, non-consideration of the order of the Co-ordinate Bench cited before the Bench makes the order of the ITAT erroneous which is a mistake apparent from the record and therefore the same needs to be recalled within the meaning of provision of section 254(2) of the Act. 3. On the other hand the Ld. DR vehemently supported the order of the ITAT. 4. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, the above order (Mumbai Tribunal) cited by the ld. AR of the assessee, has not been considered by this Tribunal in its order dated 28/10/2021 in ITA No. 403/AHD/2016. We further note that the Hon’ble Apex Court in the case of Honda siel power products ltd. v. CIT reported in 165 taxman 307 has held that non-consideration of the order of the coordinate bench will amount to a mistake apparent from record. The relevant extract of the judgment reads as under: In the instant case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. The Tribunal had acknowledged its mistake; it had accordingly rectified its order. If prejudice had resulted to the party, which prejudice is attributable to the Tribunal’s mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake. 5. In view of the above, we note that the order of the ITAT suffers from the apparent mistake so far it has not dealt with the order cited by the ld. AR for the assessee at the time of hearing. There is no ambiguity to the fact that the ld. AR for the assessee cited the order of the Mumbai Tribunal at the time of hearing as mentioned in the miscellaneous application of the assessee. Accordingly we are inclined to recall the order for fresh adjudication as per the provisions of law. Accordingly, the registry is directed to restore the appeal to its original number and fix the same for fresh hearing under the intimation to both M.A No.144/Ahd/2021 ITA no.403/AHD/2016 A.Y. 2011-12 3 the parties. Hence, the miscellaneous application filed by the assessee is allowed. 6. In the result, the Miscellaneous Application of the assessee is allowed. Order pronounced in the Court on 20/04/2022 at Ahmedabad. Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 20/04/2022 Manish