Sh. Gurmeet Singh Contractor, V. The Income Tax Officer,

MA 15/ASR/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7674 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: K R JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.15(ASR)/2010 (ARISING OUT OF I.T.A. NO. 233(ASR)/2009) ASSESSMENT YEAR:2005-06 PAN:AJIPS9133M SH. GURMEET SINGH CONTRACTOR (L&C), VS. THE INCOME TAX OFFICER, FARIDKOT. WARD III(4), FARIDKOT. (APPELICANT) (RESPONDENT) APPLICANT BY: SH. K.R. JAIN, ADVOCATE RESPONDENT BY:SH. AMRIK CHAND, DR DATE OF HEARING :30.03.2012 DATE OF PRONOUNCEMENT:30.03.2012 ORDER PERBENCH; THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION AGAINST THE ORDER OF THE TRIBUNAL DATED 30.10.2009 PASSED I N ITA NO.233(ASR)/2009, MAINLY STATING THEREIN THAT THE BENCH HAS REFERRED TO VARIOUS CASE LAWS IN THEIR ORDER AT PAGE 9, BUT THE SAME HAVE NOT BEEN CONSIDERED IN THE ORDER. THE ASSESSEE FURTHER, CONTENDED THAT THE DECISION O F ITAT, AMRITSAR BENCH, IN THE CASE OF SH. SHASHI SINGLA S/O SH. SHRIRAM SI NGLA PROP. M/S. SINGLA RICE MILLS, RAMPURAPHOOL VS. ITO WARD 1(3), BATHIND A (PBP 24-40) WAS ALSO SUBMITTED BEFORE THE BENCH, WHICH HAS ALSO NOT BEEN CONSIDERED BY THIS 2 BENCH WHILE PASSING THE ORDER DATED 30.10.2009. THE ASSESSEE FURTHER CONTENDED IN THE MISC. APPLICATION THAT IN VIEW OF THE DECISION OF THE ITAT, AMRITSAR BENCH (TM) IN THE CASE OF B. KARAM CHAND P YARE LAL VS. ITO 91 ITD 398 (ASR) (TM), WHERE IN IT HAS BEEN HELD WHER E THE TRIBUNAL WHILE DECIDING THE APPEAL HAS NOT CONSIDERED THE JUDGMENT CITED BY THE ASSESSEE WHICH HAVE A BEARING ON THE POINT AT ISSUE, IT IS A PPROPRIATE FOR THE TRIBUNAL TO RECALL ITS ORDER FOR FRESH HEARING. SECONDLY, IN THE CASE OF MOHAN MEAKINS LTD. VS. INCOME TAX OFFICER, ITAT, DELHI BENCH-D (T M)89 ITD 179 HAS ALSO HELD THAT NON-CONSIDERATION OF JUDGMENT CITED BEFORE THE TRIBUNAL CONSTITUTE A MISTAKE APPARENT FROM RECORD WITHIN TH E MEANING OF SECTION 254(2) OF THE ACT. 2. SH. K.R. JAIN, ADV. THE LD. COUNSEL WHO APPEARE D FOR THE ASSESSEE AT THE TIME OF ARGUMENTS OF THE MAIN APPEAL HAS ALSO F ILED HIS AFIDAVIT SUPPORTING THE CONTENTIONS IN THE MISC. APPLICATION . THE CONTENTS OF THE AFFIDAVIT FILED BY SH. K.R.JAIN, ADV. ARE REPRODUC ED AS UNDER: AFFIDAVIT I, KULWANT RAI JAIN S/O LATE SH. MADAN LAL JAIN R/ O 48, CHATURBHUJ ROAD, AMRITSAR DO HEREBY SOLEMNLY DECLARE AND AFFIR M AS UNDER: 1. THAT I APPEARED BEFORE THE HONBLE INCOME TAX APPEL LATE TRIBUNAL, AMRITSAR BENCH, AMRITSAR IN THE CASE OF S . GURMEET SINGH CONTRACTOR (L&C) FARIDKOT, ASSESSMENT YEAR 20 05-06. 2. THAT DURING THE COURSE OF HEARING I MADE THE FOLLOW ING SUBMISSIONS: 3 THAT THE DECISION OF ITAT AMRITSAR BENCH IN THE CA SE OF SH. SHASHI SINGLA S/O SH. SHRIRAM SINGLA PROP. M/S. SIN GLA RICE MILLS, RAMPURAPHOOL VS. ITO WARD 1(3), BATHINDA (PB P 24-40) WAS ALSO SUBMITTED BEFORE THE HONBLE BENCH. KIND ATTENTION OF THE BENCH WAS INVITED TO THE DECI SION OF ITAT, AMRITSAR BENCH (3 RD MEMBER) IN THE CASE OF B. KARAM CHAND PYARE LAL VS. ITO [91 ITD 398 (ASR) TM] WHERE IN IT HAS BEEN HELD WHERE THE TRIBUNAL WHILE DECIDING TH E APPEAL HAS NOT CONSIDERED THE JUDGMENT CITED BY THE ASSESS EE WHICH HAVE A BEARING ON THE POINT AT ISSUE, IT IS APPROPR IATE FOR THE TRIBUNAL TO RECALL ITS ORDER FOR FRESH HEARING. IN THE CASE OF MOHAN MEAKINS LTD. VS. INCOME TAX OF FICER, ITAT, DELHI BENCH-D (TM) 89 ITD 179 HELD THAT NON- CONSIDERATION OF JUDGMENT CITED BEFORE THE TRIBUNAL CONSTITUTE A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF 254(2) OF THE INCOME-TAX ACT,1961. THAT IT WAS SUBMITTED BEFORE THE HONBLE BENCH THA T THE INCOME HAS BEEN DECLARED BY THE APPELLANT AND ASSES SED BY THE A.O. AND CREDIT OF TDS HAS NOT BEEN GIVEN. IN VIEW OF THE FACTS THAT TDS HAS BEEN DEDUCTED ON THE INCOME DECLARED A ND ASSESSED AND AS SUCH CREDIT FOR THE TDS IS TO BE A LLOWED. THAT FORM NO.16-A WHICH MENTIONS THE CONTRACT RECEI PTS & TDS DEDUCTED THEREON, HAS BEEN FILED AS PER DIRECTI ONS OF THE HONBLE ITAT DATED JULY 9, 2009. THIS DOCUMENT HAS TO BE READ AS A WHOLE AND EFFECT FOR THE BOTH RECEIPTS AND TDS IS TO BE GIVEN. THE HONBLE ITAT NEITHER DISCUSSED NOR DECID ED THIS ISSUE. SD/- DEPONENT VERIFICATION I THE ABOVE MENTIONED DEPONENT DO HEREBY FURTHER SO LEMNLY DECLARE AND AFFIRM THAT THE ABOVE STATEMENT IS TRU E AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. NOTHING HAS BEEN CONCEALED OR MISREPRESENTED HEREIN. SD/- DATED : 24.03.2012 DEPONENT 4 3. SH. K.R. JAIN, ADVOCATE, REQUESTED THAT IN VIEW OF THE ABOVE AVERMENT MADE BY THE ASSESSEE AS WELL AS HIS AFFIDAVIT SUPPO RTING THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISC. APPLICATION, TH E ORDER DATED 30.10.2009 PASSED BY THIS BENCH MAY BE RECALLED AND THE MAIN A PPEAL MAY BE DECIDED ON MERITS AFTER AFFORDING OPPORTUNITY TO THE ASSESS EE. 4. ON THE CONTRARY, THE LD. DR RELIED UPON THE ORDE R PASSED BY THIS BENCH AND STATED THAT THERE IS NO MISTAKE APPARENT FROM RECORD AND THEREFORE, THE REQUEST OF THE ASSESSEE MAY BE REJECTED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORD ESPECIALLY THE ORDER PASSED BY THIS BENCH DATED 30. 10.2009 ALONG WITH THE CONTENTION RAISED BY THE ASSESSEE IN THE PRESENT MI SC. APPLICATION, WHICH IS SUPPORTED BY THE AFIDAVIT FROM SR. COUNSEL, SH. K .R. JAIN, ADV. WHO APPEARED AND ARGUED THE CASE OF THE ASSESSEE. WE AR E OF THE VIEW THAT THE DECISION OF ITAT AMRITSAR BENCH IN THE CASE OF SH. SHASHI SINGLA S/O SH. SHRIRAM SINGLA PROP. M/S. SINGLA RICE MILLS, RAMPUR APHOOL VS. ITO WARD 1(3), BATHINDA (PBP 24-40) HAS NOT BEEN CONSIDERED BY THIS BENCH AT THE TIME OF PASSING THE ORDER WHICH AMOUNTS TO APPARENT MISTAKE ON RECORD. THEREFORE, THE ORDER OF THIS BENCH DATED 30.10.2009 IN ITA NO.233(ASR)/2009 FOR THE ASSESSMENT YEAR 2005-06, D ESERVED TO BE RECALLED AND WE RECALL THE SAME BY ALLOWING THE MISC. APPLIC ATION FILED BY THE ASSESSEE. THE REGISTRY IS DIRECTED TO FIX THE PRESE NT APPEAL I.E. IN ITA 5 NO.233(ASR)/2009 FOR HEARING BEFORE THE BENCH ON 22 .05.2012. THERE IS NO NEED TO ISSUE NOTICE TO THE PARTIES BECAUSE THE ORD ER HAS BEEN PRONOUNCED IN THE OPEN COURT AND DATE OF HEARING HAS BEEN NOTED B Y THE PARTIES. THUS, MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH MARCH, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SH. GURMEET SINGH CONTRACTR (L&C), FAR IDKOT. 2. THE ITO WARD III(4), FARIDKOT. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, ITAT, AMRITSAR.S TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.