The D.C.I.T., Bhopal V. M/s. Gurukripa Constructions, Bhopal

MA 15/IND/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3767 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: SSH M C MEHTA; H CHIMNANI CAS
• Keywords: Tax effect

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER MISCELLANEOUS PETITOIN NOS.15 & 16/IND/2010 (ARISING OUT OF IT(SS)A NOS.217 & 218/IND/2007) A.YS. - 2004-05 & 2005-06 ACIT-1(1), BHOPAL APPLICANT VS. M/S. GURUKRIPA CONSTRUCTION, BHOPAL PAN AAFFG 6001 Q RESPONDENT APPLICANT BY : SHRI P.K. MITRA, SR. DR RESPONDENT BY : S/SH. M.C.MEHTA & H.CHIMNANI, CAS O R D E R PER JOGINDER SINGH BOTH THE MISCELLANEOUS PETITIONS U/S 254(2) OF THE ACT ARE FILED BY THE REVENUE SEEKING RECALLING OF THE RESPECTIVE ORDERS OF TRIBUNAL DATED 17.10.2008 AND 13.3.2009. DURING HEARING OF T HESE PETITIONS, THE LD. SR. DR SHRI P.K. MITRA POINTED OUT THAT THE DEP ARTMENT FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD. CIT(A) DATED 2 25.9.2007, WHICH WAS DISMISSED BY TRIBUNAL IN VIEW OF THE CBDT INSTRUCTION NO. 05/2008 DATED 15.5.2008 (F.NO.279/M ISC.-142/2007- ITJ) PRESCRIBING MONETARY LIMIT OF RS.2 LACS. IT WA S FURTHER SUBMITTED THAT IN THESE INSTRUCTIONS, IT HAS BEEN PRESCRIBED THAT IN CASE OF COMPOSITE ORDER OF ANY APPELLATE AUTHORITY, WHICH I NVOLVES MORE THAN ONE YEAR, APPEALS SHALL BE FILED IN RESPECT OF ALL ASSESSMENT YEARS EVEN IF TAX EFFECT IS LESS THAN THE PRESCRIBED MONETAR Y LIMIT. IT WAS PLEADED THAT THE ORDER FOR ASSESSMENT YEAR 2004-05 FOR IT(SS)A NO.217 OF 2007 MAY BE RECALLED. FOR IT(SS) A NO.218 OF 200 7, THE LD. SR. DR TOOK IDENTICAL PLEA. 2. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE SHRI M.C. MEHTA ALONG WITH SHRI HITESH CHIMNANI CONTENDED THA T EXACTLY COMMON ISSUES ARE INVOLVED IN BOTH THE APPEALS AND IT(SS)A NO.218/IND/2007 WAS DISMISSED ON MERITS BY THE BENCH AND NOT ON MON ETARY LIMIT. THE CRUX OF THE ARGUMENTS IS THAT EVEN SINCE THE AFORES AID APPEAL WAS DECIDED ON MERITS, THEREFORE, THE APPEAL IN IT(SS)A NO.217/IND/2007 IS COVERED BY THE DECISION DATED 13.3.2009 TAKEN IN IT (SS)A NO.218/IND/2007. THIS FACTUAL MATRIX WAS NOT CONTRO VERTED BY THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO 3 DISPUTE TO THE FACT THAT THE BENCH VIDE ORDER DATED 17.10.2008 [IT(SS)NO.217 OF 2007] BY FOLLOWING VARIOUS DECISIO NS INCLUDING HONBLE JURISDICTIONAL HIGH COURT DISMISSED THE APPEAL OF T HE REVENUE ON PRESCRIBED MONETARY LIMIT WHEREAS ON THE SAME FACTS , THE APPEAL IN IT(SS)A NO.218 OF 2007 WAS DECIDED ON MERITS VIDE O RDER DATED 13.3.2009. EVEN IF THE ASSERTION OF THE LD. SR. DR IS CONSIDERED, THE FACT REMAINS THAT EXACTLY ON THE COMMON ISSUE, THE APPEA L OF THE REVENUE IN IT(SS)A NO.217 OF 2007 WILL NOT SURVIVE EVEN IF THE ORDER IS RECALLED AND AGAIN DECIDED ON MERIT BECAUSE THE RESULT WILL REMAIN THE SAME. THE REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY CONTR ARY DECISION FROM ANY HONBLE HIGHER FORUM CONTRARY TO THE DECISION T AKEN IN IT(SS)A NO.218 OF 2007. ON A QUERY FROM THE BENCH TO THE LD . DR, WHETHER ANY PURPOSE WILL BE SERVED IF THE ORDER IS RECALLED, MR . MITRA VERY FAIRLY/JUSTIFIABLY ADMITTED THAT FIRSTLY, NO USEFUL PURPOSE WILL BE SERVED AND SECONDLY, IT WILL BE A FUTILE EXERCISE EVEN IF THE ORDER IS RECALLED BECAUSE THE RESULT WILL REMAIN THE SAME. IN VIEW OF THESE FACTS, THERE IS NO MERIT IN THESE MISCELLANEOUS PETITIONS OF THE REVENUE. EVEN OTHERWISE, THE POWERS OF THE TRIBUNAL U/S 254(2) OF THE ACT ARE VERY LIMITED UNLESS AND UNTIL ANY CLERICAL, ARITHMETICAL OR MISTAKE OF FACT IS POINTED OUT. IN VIEW OF THESE FACTS, BOTH THESE MIS CELLANEOUS PETITIONS OF THE REVENUE ARE DISMISSED. 4 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON THE MISCELLANEOUS PETITIONS ON 2.7.2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2.7.2010 {VYAS} COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE