M/s.Komet Precision Tools India Private Limited, Bangalore V. Assistant Commissioner of Income Tax, Circle-4(1)(1), Bangalore

MA 174/BANG/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1148 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 29-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR PALANI KUMAR S
• Assessee Lawyers: S V RAVISHANKAR
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.P. NO. 174/BANG/2018 (IN ITA NO. 1 309 /BANG/201 6 ) ASSESSMENT YEAR : 201 0 - 11 M/S. KOMET PRECISION TOOLS INDIA PVT. LTD., 16J, ATTIBELE INDUSTRIAL AREA, BANGALORE 560 107. PAN: AABCK4981E VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 4 (1) (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI S.V. RAVISHANKAR, ADVOCATE REVENUE BY : DR. PALANI KUMAR S. , ADDL. CIT (DR) DATE OF HEARING : 06 .0 9 .2019 DATE OF PRONOUNCEMENT : 13 . 0 9 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS M.P. IS FILED BY THE ASSESSEE SEEKING RECALL OF EX-PARTE TRIBUNAL ORDER DATED 06.12.2017. 2. IT IS SUBMITTED IN THE M.P. FILED BY THE ASSESSEE THAT ADJOURNMENT PETITION WAS MOVED BY THE ASSESSEE SEEKING ADJOURNMENT AND THIS IS NOTED BY THE TRIBUNAL ALSO IN PARA 5.1 OF THE IMPUGNED TRIBUNAL ORDER THAT AN ADJOURNMENT PETITION WAS FILED BY M/S. MANOHAR CHOWDHRY ASSOCIATES, CHARTERED ACCOUNTANTS BUT THIS PETITION WAS REJECTED ON THIS BASIS THAT THE ISSUE IN THE APPEAL IS COVERED BY THE TRIBUNAL IN AN EARLIER YEAR. 3. IN COURSE OF HEARING, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT ALTHOUGH IN PARA 6 OF THE TRIBUNAL ORDER, THE TRIBUNAL HAS REPRODUCED RELEVANT PARAS FROM THE EARLIER TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008- 09 BUT THEREAFTER, THE TRIBUNAL HAS ALSO NOTED ABOUT THE JUDGMENT OF HONBLE M.P. NO. 174/BANG/2018 (IN ITA NO. 1309/BANG/2016) PAGE 2 OF 3 PUNJAB & HARYANA HIGH COURT RENDERED IN THE CASE OF THUKRAL REGAL SHOES VS. CIT (391 ITR 119 ) (P&H) AND THEREAFTER, THE APPEAL WAS DECIDED ON THIS BASIS THAT NO MATERIAL WAS BROUGHT ON RECORD TO SHOW THAT THE LAND WAS PUT TO USE AND THEREFORE, THE PROVISO TO SECTION 36(1)(III) IS SQUARELY APPLICABLE. HE SUBMITTED THAT FORM THIS FINDING OF IMPUGNED TRIBUNAL ORDER, THIS IS CLEAR THAT THIS IS NOT THE CASE OF A COVERED ISSUE BY THE TRIBUNAL ORDER IN ASSESSEES OWN CASE IN EARLIER YEAR AND THEREFORE, THE APPEAL OF THE ASSESSEE STANDS DECIDED WITHOUT GRANTING APPROPRIATE OPPORTUNITY TO ASSESSEE AND HENCE, THIS EX-PARTE TRIBUNAL ORDER SHOULD BE RECALLED. THE LD. DR OF REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER AND THEREFORE THE M.P. OF THE ASSESSEE SHOULD BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA NO. 5.1 FROM THE IMPUGNED TRIBUNAL ORDER WHICH READS AS UNDER. 5.1 ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE AND IN FACT, AN ADJOURNMENT PETITION FROM M/S.MANOHAR CHOWDHRY ASSOCIATES, CHARTERED ACCOUNTANTS, WAS MOVED BY THE MANAGER OF THE SAID FIRM AND THIS PETITION WAS REJECTED FOR SIMPLY REASON THAT THE ISSUE IN APPEAL IS COVERED BY THE ORDER OF THIS TRIBUNAL IN EARLIER YEAR. 5. NOW WE ALSO REPRODUCE THE FINAL DECISION OF THE TRIBUNAL FROM PAGE NO. 6 OF THE IMPUGNED TRIBUNAL ORDER. EVEN DURING THIS YEAR, THERE IS NO MATERIAL ON RECORD TO SHOW THAT LAND WAS PUT TO USE AND THEREFORE, THE PROVISO TO SECTION 36(1)(III) IS SQUARELY APPLICABLE. THE CIT(A), WITHOUT CONSIDERING THE PROVISIONS OF PROVISO TO SECTION 36(1)(III) HAD GRANTED RELIEF. THEREFORE, WE REVERSE THE ORDER OF THE CIT(A). 6. FROM THE ABOVE PARAS REPRODUCED FROM THE TRIBUNAL ORDER, IT IS SEEN THAT ALTHOUGH ADJUDICATION PETITION WAS REJECTED ON THIS BASIS THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR EARLIER YEAR BUT THE APPEAL WAS DECIDED ON A DIFFERENT BASIS I.E. ON THIS BASIS THAT NO MATERIAL WAS BROUGHT ON RECORD TO SHOW THAT LAND WAS PUT TO USE AND THEREFORE, THE PROVISO TO SECTION 36(1)(III) IS SQUARELY APPLICABLE. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THIS TRIBUNAL ORDER IS WITHOUT GRANTING APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ADJOURNMENT PETITION WAS REJECTED ON A BASIS DIFFERENT THAN THE BASIS ON WHICH THE APPEAL WAS ULTIMATELY DECIDED. HENCE, WE FEEL IT PROPER TO RECALL THIS TRIBUNAL ORDER WHICH IS AKIN TO PASSING OF EX-PARTE TRIBUNAL ORDER WITHOUT PROPER BASIS. WE M.P. NO. 174/BANG/2018 (IN ITA NO. 1309/BANG/2016) PAGE 3 OF 3 ORDER ACCORDINGLY AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING ON 26.11.2019. SINCE THE DATE OF HEARING IS PRONOUNCED IN THE OPEN COURT, NO SEPARATE NOTICE OF HEARING IS REQUIRED TO BE ISSUED. 7. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONO UNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH SEPTEMBER, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.