TANNA FINANCIAL SERVICES PRIVATE LIMITED, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME T CIR 4(2), MUMBAI

MA 154/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6244 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: PRAKASH JHUNJUNWALLA
• Keywords: Rectification of order; Retrospective amendment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E, M UMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI R AMIT KOCHAR ACCOUNTANT MEMBER M.A. NO. 154/MUM/2017 IN ITA NO.206/MUM/2011 A Y : 2006-07 TANNA FINANCIAL SERVICES PVT. LTD. OFFICE NO. 5, 36, HAMAM STREET, FORT, MUMBAI- 400023 PAN: AABCC5330R VS. ACIT, CIRCLE-4(2), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH JHUN JUNWALLA (AR) REVENUE BY : MS. N.HEMALATHA (SR.DR) DATE OF HEARING : 16.02.2018 DATE OF ORDER : 16.02.2018 ORDER UNDER SECTION 254(2) OF INCOME-TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION (MA) IS DIRECTED BY ASSESSEE FOR RECTIFICATION OF ALLEGED MISTAKE IN ORDER DATED 19. 09.2016 IN ITA NO. 206/MUM/2011 FOR AY 2006-07. THE CONTENTS OF THE AP PLICATION OF THE ASSESSEE IS EXTRACTED BELOW: THE HON'BLE ITAT CONFIRMED THE LEVY OF PENALTY U/S 271(1)(C) OF RS. 8,41,500/- IN RESPECT OF ADDITION MADE OF SHARE CAPITAL RECEIV ED DURING THE YEAR OF RS 25,00,000/- ON DISMISSING THE VARIOUS GROUNDS RAISE D BY THE APPELLANT STATED AS UNDER :- A) THE NOTICE U/S.274 HAS BEEN ISSUED IN MECHANICAL MANNER WITHOUT SPECIFYING THE REASON WHETHER THE PENALTY IS INITIA TED FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME; B) THE LD. AO, IN ASSESSMENT ORDER HAS NOT SPECIFIED T HE LIMB UNDER 2 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. WHICH THE PENALTY IS INITIATED VIZ. FOR CONCEALMENT OF INCOME OR FOR FURNISHING THE INACCURATE PARTICULARS OF INCOME; C) THE LD. AO INITIATED THE PENALTY IN RANDOM MANNER A ND NOT QUA- EACH ADDITION MADE IN THE ASSESSMENT ORDER; D) THE PENALTY HAS BEEN LEVIED UNDER DUAL CHARGE OF CO NCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME IMPERMISSIBLE IN LAW; E) ON MERITS, THE BONAFIDE EXPLANATION OUGHT TO HAVE BEEN CONSIDE RED UNDER WHICH CIRCUMSTANCES THE LEVY OF PENALTY IS UNJUSTIF IED. MISTAKE APPARENT ON RECORD A) THE 2 ND APPEAL ORDER HAS BEEN PASSED BEYOND THE PRESCRIBED PERIOD OF 90 DAYS SINCE THE HEARING OF THE APPEAL WAS CONCLUDED ON 03 /06/2016 AND IMPUGNED APPEAL ORDER WAS PRONOUNCED ON 19/09/2016; B) THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CA SE OF SAMSUN PERINCHERY (ITA-1154 OF 2014), AND SUPREME COURT IN THE CASE OF SSA'S EMERALD MEADOWS (73 TAXMANN.COM 248) AND OTHER ITATS LAID THE LAW THAT THE NOTICE U/S 274 ISSUED IN MECHANICAL MANNER WITHOUT SPECIFYING THE REASON FOR INITIATION OF PENALTY IS BAD IN LAW; C) THE SUBSEQUENT DECISIONS OF JURISDICTIONAL HIGH COU RT AND APEX COURT WOULD CONSTITUTE A MISTAKE APPARENT ON RECORD SINCE ARE THE INTERPRETATION OF THE EXISTING LAW AND ITS IMPL ICATION SHALL HAVE RETROSPECTIVE EFFECT; D) THE HON'BLE ITAT DID NOT CONSIDER THE BONAFIDE EXPL ANATION THAT THE APPELLANT OFFERED THE ADDITIONAL INCOME TO BUY A PE ACE OF MIND AND APPELLANT HAD STRONG CASE ON MERITS SINCE COMPLETE IDENTITY OF THE SHARE HOLDERS WERE PROVEN AND DIRECT JUDICIAL DECISIONS SUPPORTED THE CASE OF THE APPELLANT. IN THE PRAYER CLAUSE OF THE MISCELLANEOUS APPLICATI ON THE ASSESSEE/APPLICANT PRAYED TO RECALL THE ORDER OF TRIBUNAL FOR RE-ADJUD ICATION. 2. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE. T HE LD. AR OF THE ASSESSEE ARGUED THAT THE TRIBUNAL HAS PASSED THE OR DER IN CONTRAVENTION OF RULE 34(5)(C) OF INCOME-TAX (APPELLATE TRIBUNAL) RU LES, 1963. THE APPEAL WAS HEARD ON 03.06.2016 AND THE ORDER WAS PRONOUNCE D ON 19.09.2016 AND 3 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. THUS, THERE IS APPARENT MISTAKE ON THE FACE OF RECO RD AND THE ORDER IS LIABLE TO BE RECALLED FOR FRESH HEARING. IT WAS ARGUED THAT T HE HONBLE APEX COURT IN CASE OF CIT VS. EMERALD MEADOWS [2016] 73 TAXMANN.C OM 248 (SC) LAID DOWN THE LAW THAT NOTICE ISSUED UNDER SECTION 274 I N A MECHANICAL WAY WITHOUT SPECIFYING THE REASONS FOR INITIATION OF PE NALTY IS BAD IN LAW. IT WAS ARGUED THAT NON-CONSIDERATION OF SUBSEQUENT DECISIO N OF APEX COURT OR THE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APP ARENT ON RECORD. IN SUPPORT OF HIS SUBMISSION, THE LD. AR OF THE ASSESS EE RELIED UPON THE FOLLOWING DECISION: (1) OTTERS CLUB VS. DIT (EXEM) W.P. N. 2889/2016 DA TED 12.01.2017 (2) SHIVSAGAR VEG RESTAURANT VS. ACIT 317 ITR 0433 (HC-BOM) (3) CIT VS. SSAS EMERALD MEADOWS 73 TAXMANN.COM 24 8 (SC) (4) CIT VS. SAMSON PERINCHERY (ITA NO. 1154, 953, 1 997 & 1226 OF 2014 (HC-BOM) (5) CBDT CIRCULAR NO. 68 REPORTED IN 83 ITR (STATUE ) 61 (6) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 3 05 ITR 227 (SC) (7) SUHRID GEIGY LTD. VS. COMM OF SURTAX (237 ITR 8 34 (HC-GUJ) 3. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF TRIBUNAL. IT WAS ARGUED THAT THERE IS NO MISTAKE, W HICH MAY BE STATED TO BE APPARENT ON RECORD. THE TRIBUNAL HAS CONSIDERED ALL THE DECISION RELIED BY LD. AR OF THE ASSESSEE WHICH HAS BEEN REFERRED IN THE D ECISION ITSELF. THE JURISDICTION OF THE TRIBUNAL IS VERY LIMITED WHILE CONSIDERING THE RECTIFICATION OF MISTAKE IN THE ORDER. THE TRIBUNAL HAS NO POWER TO REWRITE THE DECISION 4 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. WHICH WAS PASSED AFTER CONSIDERING THE MERIT OF THE CASE. IT WAS FURTHER ARGUED BY LD. DR FOR THE REVENUE THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. THE ASSESSEE MAY APPROACH THE HONBL E JURISDICTIONAL HIGH COURT, IF THEY HAVE ANY GRIEVANCES AGAINST THE DECI SION OF THE TRIBUNAL. IT WAS FURTHER ARGUED THAT PRONOUNCING THE ORDER BEYON D THE 90 DAYS MAY BE AN IRREGULARITY BUT CERTAINLY NOT MISTAKE APPARENT ON RECORD. THE LD. DR FOR THE REVENUE PRAYED FOR DISMISSAL OF THE APPLICATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE VARIOUS DECISION RELIED BY LD. AR OF TH E ASSESSEE. WE HAVE ALSO GONE THROUGH THE ORDER PASSED BY TRIBUNAL ON 19.09. 2016. THE APPEAL WAS HEARD ON 03.06.2016 AND WAS RESERVED FOR ORDER. THE MAIN GRIEVANCE OF THE LD. AR OF THE ASSESSEE IS THAT THE ORDER WAS PASSED IN CONTRAVENTION OF RULE 34(5)(C) INCOME TAX (APPELLATE TRIBUNALS RULE), 19 63. THE CO-ORDINATE BENCH OF MUMBAI TRIBUNAL IN G. SHOE EXPORTS VS. ACI T [2018] 89 TAXMANN.COM 308 (MUM. TRIB.) ON SIMILAR CONTENTION RAISED IN APPLICATION IN THAT CASE FOR RECALLING OF ORDER PASSED BEYOND THE PERIOD PRESCRIBED UNDER ITAT RULES 34(5) AND HELD AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG. RESTAURANT V/S. ACIT (SUPRA) HAS OBSERVED AND DIREC TED AS UNDER: 11. HAVING SAID SO, THE INORDINATE UNEXPLAINED DELA Y IN PRONOUNCEMENT OF THE IMPUGNED JUDGMENT HAS ALSO RENDERED IT VULNERAB LE. 5 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. 12. THE LEARNED COUNSEL FOR THE APPELLANT HAS REFER RED TO VARIOUS JUDGMENTS OF THE APEX COURT AS WELL AS OF THIS COURT AND VARI OUS OTHER HIGH COURTS TO SHOW THAT ONLY ON THE GROUND OF DELAY IN RENDERI NG THE JUDGMENT FOR PERIOD RANGING FROM FOUR MONTHS TO 10 MONTHS, JUDGM ENTS WERE HELD TO BE BAD IN LAW AND SET ASIDE. IT HAS BEEN HELD TIME AND AGAIN THAT JUSTICE SHOULD NOT ONLY BE DONE BUT SHOULD APPEAR TO HAVE BEEN DON E AND THAT JUSTICE DELAYED IS JUSTICE DENIED. JUSTICE WITHHELD IS EVEN WORSE THAN THAT. THE APEX COURT IN THE CASE OF MADHAV HAYAWADAR RAO HOSKOT V. STATE OF MAHARASHTRA [1978] 3 SCC 544 HAS AN OCCASION TO TAKE SERIOUS N OTE OF THE PREJUDICE NORMALLY CAUSED TO THE LITIGANT DUE TO DE LAYED DELIVERY OR PRONOUNCEMENT OF THE JUDGMENT FOR THE REASONS WHICH ARE NOT ATTRIBUTABLE EITHER TO THE LITIGANT OR TO THE STATE OR TO THE LE GAL PROFESSION. 13. IN R.C. SHARMA V. UNION OF INDIA [1976] 3 SCC 754, THE APEX COURT AFTER NOTICING ABSENCE OF THE PROVISION IN THE CODE OF CIVIL PROCEDURE IN THE MATTER OF TIME FRAME IN DELIVERY OF JUDGMENT, O BSERVED AS UNDER : 'NEVERTHELESS, WE THINK THAT AN UNREASONABLE DELAY BETWEEN HEARING OF ARGUMENTS AND DELIVERY OF A JUDGMENT, UNLESS EXPLAI NED BY EXCEPTIONAL OR EXTRAORDINARY CIRCUMSTANCES, IS HIGHLY UNDESIRABLE EVEN WHEN WRITTEN ARGUMENTS ARE SUBMITTED. IT IS NOT UNLIKELY THAT SO ME POINTS WHICH THE LITIGANT CONSIDERS IMPORTANT MAY HAVE ESCAPED NOTIC E. BUT, WHAT IS MORE IMPORTANT IS THAT LITIGANTS MUST HAVE COMPLETE CONF IDENCE IN THE RESULTS OF LITIGATION. THIS CONFIDENCE TENDS TO BE SHAKEN IF T HERE IS EXCESSIVE DELAY BETWEEN HEARING OF ARGUMENTS AND DELIVERY OF JUDGME NTS. JUSTICE, AS WE HAVE OFTEN OBSERVED, MUST NOT ONLY BE DONE BUT MUST MANIFESTLY APPEAR TO BE DONE.' (P. 578) 14. RECENTLY, THE APEX COURT IN THE CASE OF ANIL RAI V. STATE OF BIHAR [2001] 7 SCC 318 HAS ALSO RECONSIDERED THE SERIOUS ISSUE OF DELAYED DELIVERY OF JUDGMENT BY SOME OF THE HIGH COURTS AND LAID DOWN CERTAIN GUIDE-LINES IN THE MATTER OF PRONOUNCEMENT OF JUDGM ENTS BY THE HIGH COURTS. 6 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. 15. IN THE CASE OF DEVANG RASIKLAL VORA V. UNION OF INDIA 2004 (3) BCR 450, THE DIVISION BENCH OF THIS COURT TO WHICH ONE OF US IS A PARTY (DAGA, J.) HAD AN OCCASION TO ISSUE DIRECTIONS TO THE PRES IDENT OF THE CENTRAL EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, MUMBA I TO FRAME AND LAY DOWN THE GUIDE- LINES ON THE SIMILAR LINES AS WERE LAID DOWN BY THE APEX COURT IN THE CASE OF ANIL RAI (SUPRA ) AND TO ISSUE APPROPRIATE ADMINISTRATIVE DIRECTIONS TO ALL THE BENCHES OF THE SAID TRIBUNAL. THE SIMILAR GUIDE-LINES CAN CONVENIENTLY BE LAID DOWN F OR THE COURTS, TRIBUNALS AND QUASI-JUDICIAL AUTHORITIES PRESCRIBED UNDER THE INCOME-TAX ACT , 1961 ('ACT' FOR SHORT) SO AS TO PREVENT DELAYED D ELIVERY OF THE JUDGMENT AND/OR ORDER WHICH AT THE END OF THE DAY R ESULTS IN DENIAL OF JUSTICE AS HAPPENED IN THE INSTANT CASE. 16. WE, THEREFORE, DIRECT THE PRESIDENT OF THE APPE LLATE TRIBUNAL TO FRAME AND LAY DOWN THE GUIDELINES IN THE SIMILAR LINES AS ARE LAID DOWN BY THE APEX COURT IN THE CASE OF ANIL RAI (SUPRA) AND TO I SSUE APPROPRIATE ADMINISTRATIVE DIRECTIONS TO ALL THE BENCHES OF THE TRIBUNAL IN THAT BEHALF. WE HOPE AND TRUST THAT SUITABLE GUIDELINES SHALL BE FRAMED AND ISSUED BY THE PRESIDENT OF THE APPELLATE TRIBUNAL WITHIN SHOR TEST REASONABLE TIME AND FOLLOWED STRICTLY BY ALL THE BENCHES OF THE TRIBUNA L. IN THE MEANWHILE, ALL THE REVISIONAL AND APPELLATE AUTHORITIES UNDER THE INCOME-TAX ACT ARE DIRECTED TO DECIDE MATTERS HEARD BY THEM WITHIN A P ERIOD OF THREE MONTHS FROM THE DATE CASE IS CLOSED FOR JUDGMENT. 7. FROM THE ABOVE, WE FIND THAT THE HON'BLE JURISDI CTIONAL HIGH COURT IN THE CASE REFERRED ABOVE HAS HELD THAT UNEXPLAINED DELAY IN PRONOUNCEMENT OF THE ORDER RENDERS IT VULNERABLE. IT WAS HELD THAT SUCH JUDGMENTS WERE BAD IN LAW AND WERE TO BE SET ASIDE. IT WAS EXPOUNDED THAT JUS TICE SHOULD NOT ONLY BE DONE, BUT SHOULD APPEAR TO HAVE BEEN DONE AND THAT JUSTICE DELAYED IS JUSTICE DENIED. THE HON'BLE HIGH COURT HAS ALSO REFERRED TO HON'BLE APEX COURT DECISION WHERE SERIOUS NOTE WAS TAKEN OF THE PREJUD ICE CAUSED TO THE LITIGANT DUE TO DELAY IN DELIVERY OR PRONOUNCEMENT OF THE JU DGMENT FOR THE REASONS 7 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. NOT ATTRIBUTABLE EITHER WITH THE LITIGANT OR TO THE STATE OR TO THE LEGAL PROFESSION. 8. FURTHERMORE, WE FIND THAT THE ITAT RULES VIDE RU LE 34(5) PROVIDE RULES AS FOR THE DELIVERY OF JUDGMENTS, WHICH PROVIDE FOR A MAXIMUM PERIOD OF 3 MONTHS FOR THE PRONOUNCEMENT OF JUDGEMENT AFTER COM PLETION OF HEARING. THE SAID RULE READ AS UNDER: ORDER TO BE PRONOUNCED, SIGNED AND DATED 34. (1) ....... (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWIN G MANNERS :-- (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY UPON THE CONCLUSION OF THE HEARING. (C) IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS GI VEN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONO UNCE THE ORDER WITHIN 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE C ASE WAS CONCLUDED BUT, WHERE IT IS NOT PRACTICABLE SO TO DO ON THE GROUND OF EXCEPTIONAL AND EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY BE A DAY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE O F THE DAY SO FIXED SHALL BE GIVEN ON THE NOTICE BOARD. (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMMEDIATELY ON THE CONCLUSION OF THE HEA RING, THE BENCH SHALL GIVE A DATE FOR PRONOUNCEMENT. 9. FURTHERMORE, WE NOTE THAT THE HON'BLE JURISDICTI ONAL HIGH COURT IN THE CASE OF OTTERS CLUB VS. DIT (E), IN WRIT PETITION NO. 28 89 OF 2016 VIDE ORDER DATED 12.01.2017 HAS HELD THAT THE TRIBUNAL CANNOT PASS THE ORDER BEYOND THREE MONTHS OF THE CONCLUSION OF THE HEARING OF TH E APPEAL. THE FACTS IN THE CASE AND THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN BRIEF ARE AS UNDER: THE TRIBUNAL PASSED AN ORDER DATED 3RD FEBRUARY, 20 16 BEYOND A PERIOD OF 90 DAYS AFTER THE HEARING OF THE APPEAL WAS CONC LUDED ON 22ND SEPTEMBER, 2015. THE ASSESSEE CLAIMED THAT THIS WAS IN BREACH OF RULE 34(5)(C) OF THE INCOME TAX APPELLATE TRIBUNAL RULES , 1963 (TRIBUNAL 8 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. RULES) AS ALSO OF THE BINDING DECISION OF THIS COUR T IN SHIVSAGAR VEG. RESTAURANT V/S. ACIT 317 ITR 433. IT WAS ALSO CLAIM ED THAT THE DELAY HAS ALSO RESULTED IN PREJUDICE TO THE PARTIES AS BINDIN G DECISIONS OF THE COORDINATE BENCHES THOUGH REFERRED TO WERE IGNORED IN THE ORDER DATED 3RD FEBRUARY, 2016. HELD BY THE HIGH COURT UPHOLDIN G THE PLEA: (I) THE ORDER OF THE TRIBUNAL WHILE REJECTING THE R ECTIFICATION APPLICATION DOES NOT DISPUTE THE FACT THAT THE ORDER DATED 3RD FEBRUARY, 2016 PASSED UNDER SECTION 254(1) OF THE ACT WAS PASSED BEYOND T HE PERIOD OF 90 DAYS FROM THE DATE OF CONCLUSION OF ITS HEARING ON 22ND SEPTEMBER, 2015. HOWEVER, IT RECORDS THAT ADMINISTRATIVE CLEARANCE H AD BEEN TAKEN TO PASS SUCH AN ORDER BEYOND THE PERIOD OF 90 DAYS. WE ARE AT A LOSS TO UNDERSTAND WHAT IS MEANT BY 'ADMINISTRATIVE CLEARANCE' AND THE BASIS FOR THE SAME. BESIDES WHEN, HOW AND FROM WHOM THE ADMINISTRATIVE CLEARANCE WAS RECEIVED, ARE ALL QUESTIONS STILL AT LARGE. MR. SUR ESH KUMAR, THE LEARNED COUNSEL WHO APPEARS FOR ALL THE RESPONDENTS, INCLUD ING THE REGISTRY OF THE TRIBUNAL IS UNABLE TO SHED ANY LIGHT ON THE SAME. M OREOVER, WE ARE UNABLE TO COMPREHEND THE MEANING OF 'ADMINISTRATIVE CLEARA NCE' IN THE FACE OF RULE 34 (5)(C) READ WITH RULE 34(8) OF THE TRIBUNAL RULES. IT IS CLEAR THAT THE ABOVE PROVISIONS MANDATE THE TRIBUNAL TO PRONOU NCE ITS ORDER AT THE VERY LATEST ON OR BEFORE THE 90TH DAY, AFTER THE CO NCLUSION OF THE HEARING. IN FACT, THIS COURT IN SHIVSAGAR VEG. RESTAURANT (SUPR A) AFTER REFERRING TO VARIOUS DECISIONS OF THE APEX COURT DIRECTED THE PR ESIDENT OF THE TRIBUNAL TO FRAME GUIDELINES TO PREVENT DELAY IN DELIVERY OF ORDERS/JUDGMENTS. IT ALSO DIRECTED ALL THE REVISIONAL AND APPELLATE AUTH ORITIES (INCLUDING TRIBUNAL) UNDER THE ACT TO DECIDE THE MATTERS HEARD BY THEM WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF THE CONCLUS ION OF THE HEARING. THIS IS FURTHER COMPOUNDED BY THE FACT THAT THE SUBMISSI ON OF THE PETITIONER IN RESPECT OF THE ENTIRE ISSUE BEING COVERED BY ORDERS OF COORDINATE BENCHES WAS ACCORDING TO THE PETITIONER, LOST SIGHT OF WHIL E PASSING THE ORDER DATED 3RD FEBRUARY, 2016. (II) IN THE ABOVE VIEW, THE IMPUGNED ORDER REJECTIN G RECTIFICATION APPLICATION HAS NOT CONSIDERED THE AFORESAID RULES AND THE BINDING DECISIONS OF THIS COURT. THEREFORE ON THE AFORESAID GROUND ALONE, THE IMPUGNED ORDER IS NOT SUSTAINABLE. 10. FROM THE ABOVE, IT IS ABUNDANTLY CLEAR THAT THE ORDERS HAVE TO BE PASSED IN VARIABLY WITHIN THREE MONTHS OF THE COMPLETION OF H EARING OF THE CASE. IN THIS CASE, ADMITTEDLY THE ORDER WAS PASSED BEYOND THREE MONTHS. NO REASON WHATSOEVER FOR THE DELAY HAS BEEN RECORDED. AS HELD BY THE HON'BLE 9 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. JURISDICTIONAL HIGH COURT ABOVE, SUCH DELAY IS INCU RABLE AND EVEN ADMINISTRATIVE CLEARANCE CANNOT CURE THE SAME. AS H ELD BY THE HON'BLE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD.[2008] 305 ITR 227 (SC), ANY ORDER OF THE TRIBUNAL WITHOUT CON SIDERING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OR THE HON'BLE AP EX COURT JUDGEMENT EVEN IF NOT BOUGHT TO THE NOTICE OF THE TRIBUNAL, RESULT S IN THE ORDER OF THE TRIBUNAL BEING LIABLE FOR MA NO.25/MUM/2017 (A.Y.2010-11) M/ S. G. SHOE EXPORTS VS. ACIT RECTIFICATION UPON FILING OF AN APPLICATIO N UNDER SECTION 254(2) OF THE ACT FOR CONTAINING MISTAKE APPARENT FROM THE RECORD . ADMITTEDLY, IN THIS CASE, THE IMPUGNED COMMON TRIBUNAL ORDERS ARE NOT IN ACCO RDANCE WITH THE ABOVE TWO JURISDICTIONAL HIGH COURT'S DECISION WHICH CLEA RLY MANDATE THAT THE ORDER OF THE TRIBUNAL SHOULD BE PRONOUNCED WITHIN A PERIO D OF THREE MONTHS OF THE HEARING OF THE APPEAL. THE INCOME TAX APPELLATE TRI BUNAL RULE 34(5) AS MENTIONED HEREINABOVE ALSO PROVIDES THE SAME. HENCE , IN ACCORDANCE WITH THE RATIO OF THE ABOVE HON'BLE HIGH COURT AND HON'BLE S UPREME COURT JUDGEMENTS, SUCH DECISIONS RENDERED AFTER 3 MONTHS NEED TO BE R ECALLED AND HEARD AFRESH AS THEY ARE LIABLE FOR MISTAKE APPARENT FROM RECORD. A CCORDINGLY, WE RECALL THE AFORE-SAID COMMON ORDERS OF THE TRIBUNAL DUE TO DEL AY BEYOND THREE MONTHS IN PRONOUNCING THE ORDER IN ACCORDANCE WITH THE HON'BL E JURISDICTIONAL HIGH COURT DECISION AS ABOVE. THE REGISTRY IS DIRECTED T O FIX THE APPEALS IN NORMAL COURSE FOR HEARING. 5. CONSIDERING THE DECISION OF CO-ORDINATE BENCH IN G. SHOE EXPORT (SUPRA), DECISION OF JURISDICTIONAL HIGH COURT IN OTTERS CLU B (SUPRA) AND SHIVSAGAR VEG RESTAURANT (SUPRA) AND RESPECTFULLY FOLLOWING T HE RATIO OF DECISION, WE RECALL THE ORDER DATED 19.09.2016 DUE TO DELAY IN P RONOUNCING THE ORDER. AS WE HAVE RECALL THE ORDER DATED 19.09.2016, THE DISC USSION ON OTHER CONTENTION RAISED BY ASSESSEE IN ITS APPLICATION BE COME ACADEMIC. THE 10 M.A.NO. 154/MUM/2017 TANNA FINANCIAL SERVICES PVT. LTD. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING AFRESH BY REGULAR BENCH. THE PARTIES BE INFORMED THROUGH PROPER NOTICE IN ACCORD ANCE WITH RULES. 6. IN THE RESULT, MA FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON TH IS 16 TH DAY OF FEBRUARY 2018. SD/- SD/- (RAMIT KOCHAR) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 16/02 /2018 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. //TRUE COPY/