Shri Devendra Kumar Shah, Kanpur V. Income Tax Officer- 3(5), Kanpur

MA 18/LKW/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5174 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI

Judgement Text

M.A. No.18/Lkw/2021 Assessment year:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘SMC’, LUCKNOW (THROUGH VIRTUAL HEARING) BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER M. A. No.18/Lkw/2021 (Arising out of I.T.A. No.319/Lkw/2018) Assessment year:2013-14 Shri Devendra Kumar Shah, 701 Urvashi Apartment, 7/292, Tilak Nagar, Kanpur. PAN:ABMPS9132J Vs. Income Tax Officer-3(5), Kanpur. (Applicant) (Respondent) O R D E R This Misc. Application has been filed by the assessee against the order of the Tribunal dated 17/08/2021 passed in I.T.A. No.319/Lkw/2018. 2. Learned counsel for the assessee submitted that the above appeal was filed on legal issues and on the merits of the case but at the time of hearing only legal ground was heard and during hearing it was prayed that since the hearing had taken place only on legal ground therefore, rest of the grounds may be dismissed as having become infructuous but in the Applicant by Shri Rakesh Garg, Advocate Respondent by Shri Harish Gidwani, D.R. Date of hearing 11/02/2022 Date of pronouncement 17/02/2022 M.A. No.18/Lkw/2021 Assessment year:2013-14 2 order, passed by the Bench, in para 7, it has been mentioned that nothing was argued on merits of the case therefore, rest of the grounds are dismissed as not pressed. It was submitted that the Bench had heard only on legal issues and merits of the case was never given up by the counsel therefore, there is a mistake apparent in the order of the Tribunal which may be rectified and instead of writing ‘nothing was argued on merits of the case’ it may be written as ‘since the appeal has been allowed on legal issues, rest of the grounds have become infructuous and hence, dismissed.’ 3. Learned D. R., on the other hand, submitted that there is no significant difference between the finding recorded by the Tribunal as under both the circumstances, the rest of the grounds have to be dismissed. Learned counsel for the assessee, in his rejoinder, submitted that once it is mentioned in the order of the Tribunal that the merits were not argued and hence, dismissed, in the higher courts, if some occasion arose, the higher court may not entertain the appeal of the assessee/Revenue on merits therefore, the said line may be rectified. 4. I have heard the rival parties and have gone through the material placed on record. I find that after the relief given to the assessee on legal issues, the following has been mentioned in the order in para 7: “In view of the above facts and circumstances and judicial precedents, the argument taken by assessee is valid and therefore ground nos. 1 & 2 are allowed. Nothing was argued on merits of the case therefore, rest of the grounds are dismissed as not pressed.” 4.1 Since Learned counsel for the assessee had no occasion to argue the issue on merits therefore, the other grounds cannot be dismissed as not pressed and rather they have become infructuous and therefore, the M.A. No.18/Lkw/2021 Assessment year:2013-14 3 mistake in the order of the Tribunal needs to be rectified. Therefore, I rectify para No. 7, which may be read as under: “In view of the above facts and circumstances and judicial precedents, the argument taken by assessee is valid and therefore, ground No. 1 & 2 are allowed. Since I have allowed the relief to the assessee on legal issue, nothing survives for adjudication and therefore, rest of the grounds are dismissed as having become infructuous.” 5. In the result, the Misc. Application filed by the assessee stands allowed. (Order pronounced in the open court on 17/02/2022) Sd/. ( T. S. KAPOOR ) Accountant Member Dated:17/02/2022 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Asstt. Registrar