M /S Nirma Ltd, Ahmedabad V. The D C I T,(Ass) Sr -8, Ahmedabad

MA 174/AHD/2009

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3956 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-02-2016
• Assessment Year: 1993-1994
• Appeal Filed On: 26-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: S N SOPARKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI RAJPAL YADAV, JUDICIAL MEMBER) M.A. NO: 174/AHD/2009 (IN ITA NO: 1905/AHD/2005) (ASSESSMENT YEAR: 1993-94) NIRMA LTD., NIRMA HOUSE, ASHRAM ROAD, AHMEDABAD V/S THE DY. COMMISSIONER OF INCOME-TAX (ASST.), SR-8, AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.N. SOPARKAR, AR RESPONDENT BY : MS. SONIA KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 05 -02-20 16 DATE OF PRONOUNCEMENT : 10 -02-2016 PER RAJPAL YADAV, JUDICIAL MEMBER: 1. THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF ASSESSEE POINTING OUT AN APPARENT ERROR COMMITTED B Y THE TRIBUNAL WHILE DECIDING THE ITA NO. 1905/AHD/2005 FOR ASSESS MENT YEAR 1993- 94. 2. IT IS PLEADED IN THE APPLICATION THAT ASSESSEE HAS FILED MISCELLANEOUS APPLICATION BEFORE THE TRIBUNAL ON 21 ST MAY, 2005 FOR ASSESSMENT ORDER M.A NO. 174/AHD/09 (I N ITA NO.1905/A/05) . A.Y. 1993-94 2 1993-94. IN THE MISCELLANEOUS APPLICATION, ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL. THE TRIBUNAL HAS DECID ED THE APPEAL OF THE ASSESSEE I.E. ITA NO. 1905/AHD/2005 FOR A.Y. 19 93-94 VIDE ORDER DATED 23 RD SEPTEMBER, 2005. THE TRIBUNAL FAIL TO TAKE COGNIZA NCE OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BY WHICH IT HAS PRAYED FOR PERMISSION TO RAISE ADDITIONAL GROUNDS O F APPEAL. THUS ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, TRIBUNAL HAS COMMITTED AN APPARENT ERROR. HE PRAYED THAT THE ORD ER OF THE TRIBUNAL BE MODIFIED TO THIS EXTENT THAT THE APPLICATION OF THE ASSESSEE DATED 15 TH FEBRUARY, 2005 BE TAKEN FOR HEARING. 3. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVE, WE H AVE PERUSED THE RECORD. WE FIND THAT THIS MISCELLANEOUS APPLICATION WAS LISTED FOR HEARING BEFORE THE TRIBUNAL ON 19 TH MARCH, 2010. A REPORT WAS CALLED FOR FROM THE REGISTRY ABOUT THE FACT OF FILING OF M ISCELLANEOUS APPLICATION BEFORE ADJUDICATION OF THE APPEAL. THE DEPUTY REGISTRAR HAS SUBMITTED A REPORT ON 26 TH JULY, 2010, THE REPORT READS AS UNDER:- AS DIRECTED BY HONBLE S/SHRI MAHAVIR SINGH, JM & A. N. PAHUJA, AM THE FOLLOWING REPORT IS SUBMITTED FOR KIND PERUSAL OF H ONBLE MEMBERS. M/S. NIRMA LTD. HAS SUBMITTED THIS ADDITIONAL GROUNDS TO THIS OFFER THROUGH ASSISTANT REGISTRAR ON 21-05-2005, FOR TWO A.YS. I. E. 1998-99 & 1993-94. IN BOTH THIS ADDITIONAL GROUND ASSISTANT REGISTRAR HAS INIT IATED ON 21-02-2005 BUT ONLY ONE NUMBER I.E. 207 WAS GIVEN FOR BOTH ADDITIONAL G ROUNDS. WHICH IS EVIDENT FROM THE ENTRIES IN THECBENCH INWARD DIARISING REGISTE R (ZEROX COPY ENCLOSED) FLAG-A AS PER OUR OFFICE PROCEDURE AND ITAT MANUAL P ARA-24(PAGE NO. 24) SUCH ADDITIONAL GROUNDS SHOULD BE PLACED BEFORE THE BENC H FOR ORDERS FOR PLACING THEM ON RECORD AND FOR SENDING A COPY THEREOF TO THE OPP OSITE PARTY FOR INFORMATION, IF BENCH SO DIRECTS COPY THEREOF SHOULD BE ENDORSED T O THE OPPOSITE PARTY. UNDER PARA-29 OF THE ITAT (PAGE NO. 24 & 25) M ANUAL THERE IS A PROCEDURE PRESCRIBED FOR FILING ADDITIONAL GROUNDS (FLAG-B). M.A NO. 174/AHD/09 (I N ITA NO.1905/A/05) . A.Y. 1993-94 3 INCOME TAX APPELLATE TRIBUNAL RULES 1963 ALSO PRESCRIBES THE PROCEDURE FOR DEALING THE SAME (FLAG-C). ON PURSUING ON THE FILES, IT IS SEEN THAT THIS OFFICE HAD NOT SUBMITTED THESE ADDITIONAL GROUNDS BEFORE HONBLE BENCH FOR FURTHER ORDERS ON ADMISSION FOR KEEPING THIS AS PART AND PARCEL OF APPEAL RECORDS - -------------- EXECUTIVE DIRECTIONS. HOWEVER, IT IS A FACT THAT THE APPELLANT HAS F ILED THIS ADDITIONAL GROUNDS WELL BEFORE THE FIRST HEARING ITSELF (DATED 28.03.2005) SUBMITTED FOR KIND PERUSAL AND ORDERS. DEPUTY REGISTRAR HONBLE S/S MAHAVEER SINGH JM/A.N. PAHUJA AM 4. ALONG WITH THE REPORT, COPY OF THE STOCK REGISTER F ORM, COPY OF THE APPLICATION FILED BY THE ASSESSEE AND COPY OF THE O FFICE MANUAL AS WELL AS THE COPIES OF THE RELEVANT RULE OF ITAT HAVE BEE N PLACED ON RECORD. AT THIS STAGE, WE DEEM IT APPROPRIATE TO TAKE NOTE OF INSTRUCTIONS CONTAINED IN DEPARTMENT MANUAL IN CHAPTER V WHICH A RE TO BE ADHERED BY THE REGISTRY FOR CONDUCTING ITS BUSINESS. FOLLOW ING INSTRUCTIONS ARE WORTH TO NOTE IN THIS CONNECTION. 24. IF ANY AFFIDAVIT, MISCELLANEOUS APPLICATION OR OTHER DOCUMENTS OR ADDITIONAL GROUNDS OF APPEAL ARE FILED, THE SAME ARE TO BE PLA CED BEFORE THE BENCH FOR ORDER FOR PLACING THEM ON RECORD AND FOR SENDING A COPY T HEREOF TO THE -OPPOSITE PARTY FOR INFORMATION. IF THE BENCH SO DIRECTS, COPY THER EOF IS ENDORSED TO THE OPPOSITE PARTY . 29. ADDITIONAL GROUNDS OF APPEAL. UNDER RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL ) RULES, 1963, THE APPELLANT IS NOT, EXCEPT BY LEAVE OF THE TRIBUNAL, TO URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET OUT IN THE MEMO OF APPEAL. IN CASE A NY ADDITIONAL GROUND IS PREFERRED, IT IS TO BE PUT UP BEFORE THE BENCH FOR ORDER AND WILL BE KEPT ON THE FILE M.A NO. 174/AHD/09 (I N ITA NO.1905/A/05) . A.Y. 1993-94 4 SUBJECT TO ALL JUST EXCEPTIONS WHICH MAY BE TAKEN A T THE TIME OF HEARING REGARDING ITS ADMISSIBILITY ETC., AND A COPY THEREOF IS TO BE SENT TO THE RESPONDENT FOR INFORMATION. IT SHOULD BE PREFERRED IN TRIPLICATE. WHILE DECIDING THE APPEAL, THE TRIBUNAL IS NOT TO C ONFINE TO THE GROUNDS OF APPEAL SET OUT IN THE MEMORANDUM OF APPEAL OR TAKEN BY LEA VE UNDER THE AFORESAID RULE. THE TRIBUNAL SHALL ALSO NOT REST ITS DECISION ON AN Y OTHER GROUNDS UNLESS THE PARTY WHICH MAY BE AFFECTED THEREBY HAS HAD A SUFFICIENT OPPORTUNITY OF BEING HEARD ON THAT ADDITIONAL GROUND. 5. THE LD. D.R. ON THE OTHER HAND WAS UNABLE TO MAKE A NY COMMENTS. SHE POINTED OUT THAT IT BE VERIFIED FROM THE RECORD AND THEREAFTER APPROPRIATE DECISION MAY BE TAKEN. 6. ON DUE CONSIDERATION OF THE RECORD, WE ARE SATISFIE D THAT ASSESSEE HAS MOVED AN APPLICATION BEFORE THE APPEAL WAS TAKEN UP FOR ADJUDICATION. DUE TO SOME INADVERTENT MISTAKE, THIS APPLICATION R EMAINED TO BE BROUGHT TO THE NOTICE OF THE BENCH WHILE HEARING OF THE APPEAL WAS TAKEN UP. DUE TO THIS REASON ITS COGNIZANCE COULD N OT BE TAKEN. TO OVER MIND, IT IS AN APPARENT MISTAKE WHICH IS CREPT IN THE PROCEEDINGS WHICH REQUIRED TO BE RECTIFIED. WE MODIFY THE ORDER OF THE TRIBUNAL, TO THE EXTENT, THAT APPEAL OF THE ASSESSEE IS RESTORED FOR A LIMITED PURPOSE NAMELY (A) THE APPLICATION OF THE ASSESSEE FOR PERMISSION TO RAISE ADDITIONAL GROUND OF APPEAL IS TO BE TAKEN UP FOR HEARING AND IF TRIBUNAL WOULD BE SATISFIED THAT THIS GROUND DESERV ES TO BE ADJUDICATED THAN THIS GROUND WOULD BE TAKEN UP FOR ADJUDICATION ON MERIT. 7. IN THE PRESENT MISCELLANEOUS APPLICATION, THE ISSUE BEFORE US IS A VERY LIMITED I.E. POSTING OF THE MISCELLANEOUS APPLICATI ON DATED 15 TH FEBRUARY, 2005 FILED DURING THE COURSE OF HEARING O F APPEAL FOR PERMISSION TO RAISE ADDITIONAL GROUND OF APPEAL. WE RECALL THE ORDER OF M.A NO. 174/AHD/09 (I N ITA NO.1905/A/05) . A.Y. 1993-94 5 THE TRIBUNAL TO THIS EXTENT AND RESTORE THE APPEAL TO ITS ORIGINAL NUMBER. FOR CONSIDERING THE APPLICATION MOVED BY TH E ASSESSEE FOR PERMISSION TO RAISE ADDITIONAL GROUNDS OF APPEAL. 8. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 10 - 02 - 201 6. SD/- SD/- (PRAMOD KUMAR) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD