M/S Rahman Exports Private Limited, Kanpur V. Dy. Commissioner of Income Tax- VI, Kanpur

MA 15/LKW/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1868 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-03-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 15-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 15 /LKW/1 3 ( ARISING OUT OF I.T.A. NO. 11 /LKW/ 2013 ) ASSESSMENT YEARS: 2002 - 03 M/S RAHMAN EXPORTS PVT. LTD., 184/167, WAZIDPUR JANMAU, KANPUR. PAN:AAACR6862N VS. DY.C.I.T. - VI, KANPUR. (APPLICANT) (RESPONDENT) ORDER PER SUNIL KUMAR Y ADAV, J.M,: TH IS MISC. APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE POINTING OUT CERTAIN MISTAKES APPARENT FROM THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. 2. IT WAS POINTED OUT THAT IN THIRD LINE OF PARA 2 OF THE ORDER OF THE TRIBUNAL, THE TRIBUNAL HAS INADVERTENTLY MENTIONED THE ASSESSMENT YEAR AS 2001 - 2002 IN PLACE OF ASSESSMENT YEAR 2002 - 2003, THEREFORE, THE SAME MAY KINDLY BE RECTIFIED. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT THAT IN PARA 10 OF ITS ORDER, THE TRIBUNAL HAS KNOCKED DOWN THE REOPENING OF THE ASSESSMENT U/S 147 OF THE ACT IN THE LIGHT OF THE APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI P. K. DEY, D.R. DATE OF HEARING 07/03/2014 DATE OF PRONOUNCEMENT 11/04/2014 2 JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORTS VS COMMISSIONER OF INCOME - TAX [2012] 348 ITR 391 (GUJ) . BESIDES, THE TRIBUNAL HAS ALSO EXAMINED THE OTHER GROUNDS RAISED IN THIS APPEAL AND FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA VS COMMISSIONER OF INCOME - TAX [2009] 317 ITR 218 (SC) APPROV ED THE ACTION OF THE ASSESSING OFFICER, WHICH WAS LATER ON CONFIRMED BY CIT(A). THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT ONCE THE TRIBUNAL HAS KNOCKED DOWN THE ASSESSMENT FRAMED CONSEQUENT TO THE ILLEGAL REOPENING , THE FINDING ON MERIT WAS NOT REQUIRED. THEREFORE, PARA 14 OF THE TRIBUNAL ORDER WAS NOT CALLED FOR AND THE RESULT OF THE APPEAL SHOULD HAVE BEEN FULLY ALLOWED IN PLACE OF PARTLY ALLOWED. 3 . LEARNED D.R., ON THE OTHER HAND, HAS CONTENDED THAT IN PARA 14, THE TRIBUNAL HAS GIVEN A FI NDING ON MERIT , BESIDES ADJUDICATING THE PRELIMINARY ISSUE . THE TRIBUNAL IS NOT DEBARRED BY ANY PROVISIONS OF THE ACT THAT ONCE IT KNOCKED DOWN THE ASSESSMENT, IT CANNOT ADJUDICATE THE ISSUES RAISED ON MERIT. THEREFORE, THE FINDING OF THE TRIBUNAL ON MER IT ARE PROPER AND IT WAS GIVEN IN THE LIGHT OF THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA (SUPRA), AND ONCE THE TRIBUNAL HAS DECIDED THE ISSUE ON MERIT IN FAVOUR OF THE REVENUE, THE APPEAL OF THE ASSESSEE CAN ONLY BE PARTLY ALLOWED. T HEREFORE, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. 4 . SO FAR AS WRONG MENTIONING OF THE ASSESSMENT YEAR IN PARA 2 OF THE TRIBUNAL ORDER IS CONCERNED, THE LEARNED D.R. SUBMITTED THAT IT WAS A TYPOGRAPHICAL ERROR. 5 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF ORDER OF THE TRIBUNAL VIS - - VIS THE MISC. APPLICATION, WE FIND THAT IN THIRD LINE OF PARA 2 OF THE ORDER , THE TRIBUNAL 3 HAS INADVERTENTLY MENTIONED THE ASSESSMENT YEAR AS 2001 - 2 002 IN PLACE OF ASSESSMENT YEAR 2002 - 2003 . WE, THEREFORE, MODIFY THE SAME BY REPLACING THE ASSESSMENT YEAR 2001 - 2002 BY 2002 - 2003. 6 . SO FAR AS THE FINDING GIVEN IN PARA 14 IS CONCERNED, WE ARE OF THE VIEW THAT IN PARA 10, THE TRIBUNAL HAS KNOCKED DOWN T HE REOPENING OF THE ASSESSMENT IN THE LIGHT OF THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORTS VS COMMISSIONER OF INCOME - TAX (SUPRA) AND NOBODY HAS ANY GRIEVANCE WITH REGARD TO THIS FINDING GIVEN IN PARA 10. BUT SO FAR AS PARA 14 I S CONCERNED, THE TRIBUNAL HAS ADJUDICATED THE ISSUE ON MERIT IN THE LIGHT OF THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA (SUPRA). THE TRIBUNAL IS WITHIN ITS P OWERS TO ADJUDICATE THE APPEAL ON MERIT, THEREFORE, THERE IS NO ERROR APPAREN T IN PARA 14 OF THE TRIBUNAL ORDER . ONCE THE ISSUE RAISED ON MERIT IS DECIDED AGAINST THE ASSESSEE, THE RESULT OF THE APPEAL WOULD ONLY BE PARTLY ALLOWED AS THE PRELIMINARY ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. THEREFORE, WE FIND NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IN THIS REGARD. 7 . IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2014 ) SD/. SD/. ( A. K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11/04/2014 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR