SHRI RAJEEV LOCHAN MUCHHAL, Indore V. THE ITO 1(3), Indore

MA 16/IND/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5606 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER SHRI RAJEEV LOCHAN MUCHHAL, INDORE V. ITO-1(3), INDORE / APPELLANT / RESPONDENT . . ./ PAN:ACRPM6653L / APPELLANT BY SHRI MANJEET SACHDEVA, ADV. SHRI ABHINASH GAUR, ADV. / RESPONDENT BY SHRI MOHD. JAVED, SR. DR / DATE OF HEARING 19.05.2017 / DATE OF PRONOUNCEMENT 24.05.2017 / O R D E R PER O.P. MEENA, ACCOUNTANT MEMBER. THROUGH THIS MISC. APPLICATION, THE ASSESSEE IS SEE KING RECALL OF THE ORDER OF TRIBUNAL IN I.T.A. NO. 904/IND/2016 FO R ASSESSMENT YEAR 2008-09 DATED 05.01.2017 WHEREBY THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE ON CONSIDERATI ON OF CASE LAWS SUBMITTED OUT OF WHICH THREE AUTHORITIES REFER RED WERE OF INDORE BENCH. M.A. NO.16/IND/2017 ARISING OUT .../ I.T.A. NO.904/IND/2016 &( ( / ASSESSMENT YEAR:2008-09 RAJEEV LOCHAN MUCHHAL/MANO.16/IND/2017 ARISING OUT OF ITA NO.904/ IND/2016/A.Y.:08-09 PAGE 2 OF 4 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL WHILE DISMISSING THE ASSESSEES APPEAL ERRED IN NOT CONSIDERING THE CASE LAWS SUBMITTED VIDE SUBMISSIONS DATED 15.1 2.2016 BEFORE THE TRIBUNAL. THE THREE CASE LAWS REFERRED T O WHEREFROM THE INDORE BENCH WHICH WERE ITO WARD-2, RATLAM VS. SMT. JAISHREE CHAPRODE I.T.A. NO. 686/IND/2005 I.T.A.T., INDORE BENCH, INDORE, SHRI GURUMUKHDAS SALUJA VS. ACIT (20 13) 21 ITJ 168 (INDORE BENCH, INDORE), SHRI DEEPENDRA THORE, M ANDASUR VS. ITO, MANDASUR (2005) 3 ITJ 111 (INDORE BENCH, INDOR E). IT WAS FURTHER SUBMITTED THAT THE CIT(A) GAVE TIME OF JUST TWO DAYS DURING THE HEARING OF APPEAL ON 22.4.2016 TO PRODUC E THE BOOKS OF ACCOUNTS AND THE ORDER WAS PASSED ON 24.4.2016. SINCE THE MATTER WAS MORE THAN SIX YEARS OLD AND THE ACCOUNTA NT HAS BEEN CHANGED THEREFORE, IT WAS NOT POSSIBLE TO PRODUCE T HE BOOKS OF ACCOUNTS, THEREFORE, THE CIT((A) HAS WRONGLY DISMIS SED THE APPEAL OF THE ASSESSEE AND THEREBY THE TRIBUNAL HAS ALSO N OT ALLOWED THE OPPORTUNITY AND CONSIDERATION OF THE CASE LAWS. IT WAS ALSO POINTED OUT THAT NON-CONSIDERATION OF CASE LAW CITE D BY THE ASSESSEE IS A MISTAKE AND TRIBUNAL HAS GOT POWER TO RECONSIDER THE CASE AS HELD IN THE CASE OF CIT VS. FIVE STAR RUGS (2007) CTR 246 (P & H)/ 164 TAXMANN 348 (P & H) WHEREIN THE HO N'BLE HIGH COURT HAS OBSERVED THAT THE DR HAD CITED VARIOUS JU DGMENTS OF THE HON'BLE SUPREME COURT AND HIGH COURT ON THE ISSUE BUT IS STILL THE TRIBUNAL HAS CHOS EN TO FOLLOW THE EARLIER ORDERS PASSED BY IT WITHOUT E VEN ADVERTING TO THIS JUDGMENT AND POINTING OUT ANY POINT OF DISTINC TION THEREIN VIS--VIS THE FACTS OF THE PRESENT CASE. THEREFORE, THE LD. AR REQUESTED TO RECALL THE ORDER FOR DECISION ON MERIT S. RAJEEV LOCHAN MUCHHAL/MANO.16/IND/2017 ARISING OUT OF ITA NO.904/ IND/2016/A.Y.:08-09 PAGE 3 OF 4 3. WE HAVE CONSIDERED THE FACTS AND FIND THAT THE ASSESSEE HAS CITED ABOVE CASE LAWS BY WAY OF ORAL ARGUMENTS AND WRITTEN SUBMISSION BUT SAME REMAINED TO BE CONSIDERED THROU GH OVERSIGHT. THE LD. AR RELIED IN THE CASE OF CIT VS . FIVE STAR RUGS (2007) 293 ITR 553 (P & H)/ 164 TAXMAN 348/207 CTR 246 (P & H) OF WHICH RELEVANT PARA 7 OF THIS DECISION IS REP RODUCED AS UNDER: BEFORE PARTING WITH THE ORDER, WE ARE CONSTRAINED TO DEPRECATE THE MANNER IN WHICH THE ISSUE HAS BEEN DEALT WITH BY THE TRIBUNAL WHICH IS AGAINST THE SETTLED NORMS OF JUDICIAL DISCIPLINE AND PROPRIETY. THE DEP ARTMENTAL REPRESENTATIVE HAD CITED VARIOUS JUDGMENTS OF THE HONBLE SUPREME COURT AND DIFFERENT HIGH COURTS ON THE ISSUE, SUCH AS STERLING FOODS CASE ( SUPRA), CIT V. VISHWANATHAN & CO. [2003] 261 ITR 737 (MAD.), CIT V. JAMEEL LEATHERS & UPPERS [2000] 246 ITR 97 1 (MAD.) AND CIT V. RITESH INDUSTRIES LTD. [2004] 274 ITR 324 2 (DELHI) BUT STILL, THE TRIBUNAL CHOSE TO FOLLOW TH E EARLIER ORDERS PASSED BY IT WITHOUT EVEN ADVERTING TO THESE JUDGMENTS AND POINTING OUT ANY POINT OF DISTINCTION THEREIN VIS-A -VIS THE FACTS OF THE PRESENT CASE. STILL FURTHER THE TRIBUNAL IN ITS WISDOM HAS CHOSEN TO IGNORE THE ORDER PASSED BY IT EARLIER IN THE CASE OF LIBERTY INDIA ( SUPRA) UPHELD BY THIS COURT VIDE ORDER DATED 22-9-2006 ON THE BASIS OF TH E JUDGMENT OF DELHI HIGH COURT IN RITESH INDUSTRIES LTD.S CASE (SUPRA), MER ELY FOR THE REASON THAT THERE IS NO JUDGMENT OF THIS COURT ON THIS ISSUE. IT LOST SIGHT OF THE FACT THAT THE EARLIER ORDER OF THE TRIBUNAL WAS PERTAINING TO THE AREA WI THIN THE JURISDICTION OF THIS COURT. AS AGAINST THIS, THE TRIBUNAL HAS CHOSEN TO FOLLOW THE ORDERS PASSED BY IT IN OTHER CASES. THE REASON GIVEN BY THE TRIBUNAL FO R IGNORING THE EARLIER ORDER PASSED BY IT IN THE CASE OF LIBERTY INDIA (SUPRA) I S NOT AT ALL CONVINCING. AN ORDER PASSED, FOLLOWING A JUDGMENT OF THE HIGH COUR T, SHOULD NOT HAVE BEEN IGNORED IN THE MANNER IT HAS BEEN DONE. SUCH A PRAC TICE HAS ALREADY BEEN DEPRECATED BY THIS COURT IN ITS JUDGMENT IN CIT V. ABHISHEK INDUSTRIES LTD. [2006] 286 ITR 1 3 . 4. SIMILARLY IN THE CASE OF CIT VS. ABHISHEKH INDUS TRIES (2006) 286 ITR (P & H)/ 156 TAXMAN 257 (P & H)/ 205 CTR 30 4 (P & H) IT WAS OBSERVED THAT IT IS THE DUTY OF THE TRIBUNAL TO DECIDE THE CASES ON THE BASIS OF LAW LAID DOWN BY THE SUPREME COURT/ HIGH COURT AND NOT THE WHAT THE TRIBUNAL DECIDES ON THE PARTICULAR ISSUE. IN THE LIGHT OF ABOVE, DECISIONS, THE NON-CO NSIDERATION OF DECISION CITED BEFORE US IS THE MISTAKE OF LAW ON R ECORDS. HENCE, RAJEEV LOCHAN MUCHHAL/MANO.16/IND/2017 ARISING OUT OF ITA NO.904/ IND/2016/A.Y.:08-09 PAGE 4 OF 4 CONSIDERING THE VIEW, WE DEEM IT FIT TO RECALL THE SAID APPEAL ORDER AND RESTORE TO THE FILE OF THE REGISTRY FOR CONSIDE RING THE SAME ON MERITS AND ON LAW, ACCORDINGLY, THE HEARING IS FIXE D ON 10.8.2017 FOR WHICH NO HEARING NOTICE WILL BE ISSUED SEPARATE LY. 5. IN THE RESULT, MISC. APPLICATION FILED BY THE AS SESSEE STANDS ALLOWED. 6. THE ORDER PRONOUNCED IN THE OPEN COURT ON 24.05 .2017 SD/- SD/- ( .. ) /(C.M. GARG) (..) /(O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER DATED: 24 .05.2017 SB*