KARP IMPEX LTD, V. DCIT 5(2),

MA 177/MUM/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9860 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-01-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 19-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B V JHAVERI; MANJU SI SODIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI DINESH KUMAR AGARWAL, JM AND RAJENDRA SINGH, AM M.A. NO. 177/MUM/2012 ARISING OUT OF ITA NO. 5775/MUM/2012 (ASSESSMENT YEAR 2001-02) M/S KARP IMPEX LTD., PRASAD CHAMBERS, OPERA HOUSE, MUMBAI 400 004. PAN: AABCK1823F DY. COMMISSIONER OF INCOME- TAX 5(2), MUMBAI. APPLICANT V/S RESPONDENT DATE OF HEARING : 18- 1-2013 DATE OF PRONOUNCEMENT : 23-01-201 3 APPLICANT BY : SHRI B.V. JHAVERI & MS. MANJU SI SODIA RESPONDENT BY : SHRI RAJARSHI D WIVEDY O R D E R PER DINESH KUMAR AGARWAL (JM) THIS MISC. APPLICATION FILED BY THE ASSESSEE IS DIR ECTED AGAINST THE ORDER DTD. 31-1-2012 PASSED BY THE TRIBUNAL IN ITA NO. 57 75/MUM/2009 FOR A.Y. 2001-02. 2. IN THE MISC. APPLICATION DTD. 16-3-2012 IT WAS, INTER ALIA, SUBMITTED THAT IN PARA 8 OF THE ORDER OF THE TRIBUNAL IT HAS BEEN HELD THAT LEARNED COUNSEL FOR THE ASSESSEE DID NOT ARGUE ON ANY OF THE ORIGIN AL GROUNDS OF APPEAL AND STATED THAT THE SAME ARE COVERED AGAINST HIM. IN T HIS VIEW OF THE MATTER, THESE GROUNDS OF APPEAL ARE TREATED AS NOT PRESSED . IT WAS FURTHER SUBMITTED THAT AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN MAIN GROUNDS IS COVERED AGAINST THE ASSESS EE IN VIEW OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN CIT VS. CIT V. KALP ATARU COLOURS AND CHEMICALS (2010) 328 ITR 451 (BOM). IT WAS FURTHER SUBMITTED THAT SINCE THE MA 177/MUM/2012 2 SAID DECISION HAS BEEN REVERSED BY THE HONBLE SUPR EME COURT IN TOPMAN EXPORTS VS. CIT (2012) 342 ITR 49 (SC), THEREFORE, THE A.O. MAY BE DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE DECISION OF HONBLE APEX COURT (SUPRA) WHICH WAS NOT DISPUTED BY THE LD. D.R . 3. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE ISSUE IN THE MAIN GROUNDS WAS DISMISSED ON THE GROUND THAT AT THAT TI ME THE SAME WAS COVERED AGAINST THE ASSESSEE. HOWEVER, THE HONBLE SUPREME COURT IN TOPMAN EXPORTS (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. IN ASSTT. CIT VS. SAURASHTRA KUTCH STOCK EXCHANG E LTD. (2008) 305 ITR 227 (SC) IT HAS HELD THAT FAILURE TO TAKE INTO CONS IDERATION THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT OR THE HONBLE SU PREME COURT CONSTITUTE A MISTAKE APPARENT FROM RECORD AND THE SAME COULD BE RECTIFIED BY THE TRIBUNAL U/S 254(2) OF THE ACT. JUDICIAL DECISION OF THE HO NBLE SUPREME COURT ACTS RETROSPECTIVELY. 5. RESPECTFULLY FOLLOWING THE RATIO OF THE ABOVE DE CISIONS, WE ARE OF THE VIEW THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNA L AND, HENCE, THE A.O. IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN T HE LIGHT OF THE DECISION OF THE HONBLE SUPREME COURT IN TOPMAN EXPORTS (SUPRA). T O THIS EXTENT, THE ORDER PASSED BY THE TRIBUNAL IS MODIFIED. ACCORDINGLY THE MISS. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. MA 177/MUM/2012 3 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE A SSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-01-2013 SD/- SD/ - (RAJENDRA SINGH) (DINESH KUMAR AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED : 23-01-2013 RK.: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT , CONCERNED, MUMBAI 4. CIT(A) CONCERNED, MUMBAI 5. DR D BENCH 6. GUARD FILE. BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI