JITENDRA MANSUKHLAL SHAH, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 45, MUMBAI

MA 173/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1272 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 09-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATI
• Keywords: Additional evidence
• Section: 40(a)(ia); 201(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI C.N. PRASAD, JM MA NO. 173/MUM/2018 (ARISING OUT OF ITA NO.2294/MUM/2013) ( ASSESSMENT YEAR: 2006-07) JITENDRA MANSUKHLAL SHAH, 191, PILLA BUILDING, NAGDEVI STREET, MUMBAI- 400003. VS. D.C.I.T., CENTRAL CIRCLE-45, MUMBAI PAN/GIR NO.AADPS 1282 P (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI VIMAL PUNMIYA (AR) REVENUE BY SHRI R. BHOOPATI (DR) DATE OF HEARING 13/12/2019 DATE OF PRONOUNCEMENT 16/12/2019 / O R D E R PER: R.C. SHARMA, A.M. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY TH E ASSESSEE TO RECTIFY AN APPARENT MISTAKE IN THE ORDER OF TRIBUNA L DATED 04/03/2015 PASSED IN ITA NO. 2294/MUM/2013 FOR THE A.Y. 2006-0 7. 2. IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE TH AT THE ADDITIONAL GROUND WAS RAISED BEFORE THE BENCH ON 27/2/2015 ALO NGWITH ADDITIONAL EVIDENCE BUT THE SAME WAS NOT CONSIDERED AND DECIDE D BY THE TRIBUNAL WHILE DISPOSING THE APPEAL. THE ADDITIONAL GROUND S O RAISED BY THE ASSESSEE READS AS UNDER: ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DISALLOWANCE OF LABOUR CHARGES U/S 40(A)(IA) OF RS. 97,93,037/- IS ERRONEOUS ON FOLLOWING 2 ND PROVISO TO SECTION 40(A)(IA) AS THE APPELLANT IS NO T DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE 1 ST PROVISO TO SECTION 201(1) OF THE ACT. MA NO. 173/MUM/2018 JITENDRA MANSUKHLAL SHAH VS DCIT 2 3. IN VIEW OF THE ABOVE, IT WAS CONTENDED BY THE LD AR THAT THERE WAS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNA L AND SAME SHOULD BE RECTIFIED U/S 254(2) OF THE ACT. 4. ON THE OTHER HAND, THE LD DR HAS CONTENDED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY PERUSED THE ORDER OF THE TRIBUNAL DATED 04/03/2015 AND FOUN D FROM RECORDS THAT DURING THE COURSE OF HEARING ON 27/02/2015, THE LD AR HAS RAISED ADDITIONAL GROUND AS AN ALTERNATE PLEA AND ALSO FIL ED ADDITIONAL EVIDENCE IN SUPPORT OF THE CONTENTION THAT THE ASSESSEE WAS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SECT ION 201(1) OF THE ACT. HOWEVER, WHILE PASSING THE ORDER ON 04/03/2015 DUE TO OVERSIGHT THE ADDITIONAL GROUND SO RAISED WAS NEITHER CONSIDERED NOR DECIDED BY THE TRIBUNAL. EVEN THE ADDITIONAL EVIDENCES WERE NOT CO NSIDERED BY THE TRIBUNAL. WE FOUND THAT THE ORDER WAS PASSED BASED ON A SINGLE GROUND OF APPEAL I.E. GROUND NO. 4(B). THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PARMANAND BUILDERS PVT. LTD. VS CIT & ANR. (2017) 390 ITR 40 (HC) HAS HELD THAT THE TRIBUNAL IS BOUND IN LAW TO CONSIDER THE ALTERNATIVE PLEA RAISED BY THE ASSESSEE AT THE HEAR ING OF THE APPEALS. SINCE THE TRIBUNAL FAILED TO DO SO, THE MISC. APPLI CATION POINTING OUT THE ERROR OUGHT TO BE ALLOWED. MA NO. 173/MUM/2018 JITENDRA MANSUKHLAL SHAH VS DCIT 3 6. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, WE REC ALL THE ORDER OF THE TRIBUNAL DATED 04/03/2015 TO A LIMITED EXTENT T O DECIDE THE ADDITIONAL GROUND SO RAISED BY THE ASSESSEE AS STAT ED ABOVE. 7. IN THE RESULT, THIS MISC. APPLICATION IS ALLOWED IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2019. SD/- (C.N. PRASAD) SD/- (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 16/12/2019 *RANJAN 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//