Benjamin Marcus, CHENNAI V. ACIT, CHENNAI

MA 154/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4740 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 23-06-2016
• Court: TRIBUNAL
• Department Lawyers: DURAI
• Assessee Lawyers: T N SEETHARAMAN

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO. 154/MDS/2016 [IN I.T.A.NO. 98 /MDS/2016 ] / ASSESSMENT YEAR :200 8 - 09 SHRI BENJAMIN MARCUS, NO. 18, 9 TH STREET, ABIRAMI AVENUE, KAVIGNAR KANNADHASAN NAGAR, KODUNGAIYUR, CHENNAI 600 118. [PAN: A A F P M 6883L ] VS. THE ASSIST ANT COMMISSIONER OF INCOME TAX , CIRCLE XI, [NOW ACIT, NCC 5] CHENNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI T.N. SEETHARAMAN, ADVOCATE / RESPONDENT BY : SHRI DURAIPANDI AN , J CIT / DATE OF HEARING : 22 . 0 7 .201 6 / DATE OF P RONOUNCEMENT : 21 . 0 9 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO GET RECALLED T HE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO.9 8 /MDS/201 6 DATED 25 . 05 .2016 RELEVANT TO THE ASSESSMENT YEAR 20 0 8 - 0 9 . BY RELYING ON THE PETITION FILED BY THE ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ABOVE ORDER PASSED BY THE TRIBUNAL DISMISSING THE APPEAL FILED BY THE ASSESSEE IS QUITE CONTRARY TO THE PRONOUNCEMENT MADE BY THE M.P . NO . 154 /M/ 16 2 HON BLE MEMBERS OF THE BENCH IMMEDIATELY AFTER THE HEARING OF THE CASE THAT THE CASE WILL BE REMITTED TO THE ASSESSING OFFICER FOR DE NOVO CONSIDERATION . HE FURT HER SUBMITTED THAT THE SUBMISSIONS MADE BY THE LD. AR DURING THE COURSE OF APPEAL HEARING WERE NOT BROUGHT ON RECORD AND THEREFORE, HE PLEADED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED AND POSTED FOR FRESH HEARING. 2. ON THE OTHER HAND, THE LD. DR DID NOT SERIOUSLY OBJECT TO THE SUBMISSIONS OF THE ASSESSEE. 3 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE PUNE BENCHES OF THE TRIBUNAL IN THE CASE OF CIT V. JINENDRA SMELTING & ROLLING MILLS [2008] 15 DTR 22 HAS HELD THAT PRONOUNCEMENT MADE BY THE B ENCH IMMEDIATELY AFTER HEARING BOTH THE SIDES CANNOT BE SAID TO BE AN ORDER PASSED UNDER SECTION 254(1) OF THE INCOME TAX ACT AND HENCE, THERE WAS NO RECTIFIABLE MISTAKE IN THE WRITTEN ORDER PASSED SUBSEQUENTLY FOR THE REASON THAT IT WAS NOT IN CONFORMITY WITH THE SAID PRONOUNCEMENT; HOWEVER, THE TRIBUNAL COMMITTED APPARENT MISTAKE AS THE STATEMENT UNDER SECTION 132(4) MADE BY A PARTY WAS NOT CONSIDERED VIS - - VIS AN ORDER OF THE SUPREME COURT CLAIMED TO BE CITED. 4 . IN VIEW OF THE ABOVE DECISION OF THE P UNE BENCHES OF THE TRIBUNAL, IT IS AMPLY CLEAR THAT PRONOUNCEMENT MADE BY THE TRIBUNAL IMMEDIATELY AFTER M.P . NO . 154 /M/ 16 3 HEARING BOTH THE SIDES CANNOT BE SAID TO BE AN ORDER PASSED UNDER SECTION 254(1) OF THE ACT. ACCORDINGLY, THIS GROUND OF THE PETITION DOES NOT SURVIVE. 5 . HOWEVER, BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ARGUMENTS ADVANCED AT THE TIME OF HEARING WAS NOT BROUGHT ON RECORD AND PLEADED THAT THE ORDER OF THE TRIBUNAL DATED 25.05.2016 MAY PLEASE BE RECALLED AND HEARD AFRESH. ON GOING THROUGH THE ORDER OF THE TRIBUNAL, WE FIND THAT BY OVERSIGHT, THE SUBMISSIONS MADE DURING THE COURSE OF HEARING WERE NOT BROUGHT ON RECORD. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER PASSED BY THE TRIBUNAL DATED 25.05.2016 SHOULD BE RE CALLED AND POSTED FOR FRESH HEARING. THUS, WE RECALL THE ORDER PASSED BY THE TRIBUNAL DATED 25.05.2016 AND DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING ON REGULAR COURSE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON THE 21 ST SEPTEMBER , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 21 . 0 9 .201 6 VM/ - M.P . NO . 154 /M/ 16 4 / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.