Shri Kanchanlal Punjalal Shah, Ahmedabad V. The Income tax Officer, Ward-13(4), Ahmedabad

MA 180/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7932 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1996-1997
• Appeal Filed On: 04-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.180/AHD/2010 IN I.T.A. NO.3048/AHD/2004 (ASSESSMENT YEAR 1996-97.) SMT. KANCHANLAL PUNJALAL SHAH, B/5, PADMAVATI APARTMENT, PALDI, AHMEDABAD VS. ITO, WARD 13(4), AHMEDABAD PAN/GIR NO. : CWCPS8541L (APPELLANT) .. (RESPONDENT) APPELLANT BY: NONE (WRITTEN SUBMISSION) RESPONDENT BY: SHRI VINOD TANWANI, SR.DR DATE OF HEARING: 02.03.2012 DATE OF PRONOUNCEMENT: 13. 04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE. IT HAS BEEN SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT THE APPEAL OF THE REVENUE AND THE APPEAL OF THE ASSESSEE WERE DISPOSED OFF BY WAY OF COMMON ORDER OF THE TRIBUNAL DATED 31.03.2008. IT IS FURTHER SU BMITTED THAT THE APPEAL OF THE REVENUE WAS DISMISSED IN VIEW OF BOARDS INSTRU CTION NO.2705/05 DATED 24.10.2005 AND BY FOLLOWING THE JUDGMENT OF H ONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS PITHWA EN GINEERING WORKS (276 ITR 519). IT IS FURTHER SUBMITTED THAT HE C.O . OF THE ASSESSEE WAS ALSO DISMISSED AS WITHDRAWN BUT NO APPLICATION WAS MOVED BY THE ASSESSEE FOR WITHDRAWING OF THE C.O. OF THE ASSESSE E. IT IS FURTHER M.A.NO.180 /AHD/2010 2 SUBMITTED BY THE ASSESSEE IN THE MISCELLANEOUS APPL ICATION THAT THE ASSESSEE HAD NOT AUTHORIZED THE AR MR. M J SHAH WHO HAD APPEARED BEFORE THE TRIBUNAL TO WITHDRAW THE C.O. IT IS SUB MITTED THAT IN VIEW OF THIS, THE ORDER OF THE TRIBUNAL REGARDING DISMISSAL OF THE C.O. IS A MISTAKE APPARENT FROM RECORD AND THEREFORE, THIS TRIBUNAL O RDER REGARDING DISMISSAL OF THE C.O. SHOULD BE RECALLED AND THE C. O. OF THE ASSESSEE SHOULD BE DECIDED ON MERIT AFTER HEARING BOTH THE P ARTIES. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING OF THE MISCELLANEOUS APPLICATION BUT IT WAS SUBMITTED THAT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE MAY BE DI SPOSED OFF BY CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE FILED ON 10.12.2010. WE, THEREFORE, DECIDE THIS MISCELLANEOUS APPLICATIO N OF THE ASSESSEE AFTER HEARING THE LD. D.R. AND AFTER CONSIDERING THE WRIT TEN SUBMISSIONS OF THE ASSESSEE WHICH ARE AVAILABLE ON RECORD. IT IS SUBM ITTED BY THE LD. D.R. THAT SINCE THE APPEAL OF THE REVENUE WAS DISMISSED, THE C.O. FILED BY THE ASSESSEE CANNOT SURVIVE AND, THEREFORE, THERE IS NO MISTAKE IN THE TRIBUNAL ORDER. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. AND HAVE ALSO GONE THROUGH THE WRITTEN SUBMISSIONS FILED BY THE A SSESSEE. SINCE THE APPEAL OF THE REVENUE WAS DISMISSED AS NOT ADMISSIB LE IN VIEW OF LOW TAX EFFECT, THE C.O. OF THE ASSESSEE CANNOT SURVIVE BEC AUSE WHENEVER APPEAL OF THE REVENUE IS NOT ADMITTED, THERE IS NO OCCASIO N OR VALIDITY OF FILING OF C.O. BY THE ASSESSEE. HENCE, WE MODIFY THE TRIBUNA L ORDER REGARDING DISMISSAL OF THE C.O. OF THE ASSESSEE. WE HOLD THA T INSTEAD OF DISMISSAL OF THE C.O. BECAUSE OF WITHDRAWAL BY THE ASSESSEE, THE C.O. OF THE ASSESSEE STANDS DISMISSED BECAUSE APPEAL OF THE REV ENUE WAS DISMISSED AS NOT MAINTAINABLE IN VIEW OF LOW TAX EFFECT AND IN T HE ABSENCE OF ANY M.A.NO.180 /AHD/2010 3 APPEAL OF THE REVENUE, THERE CANNOT BE ANY CROSS OB JECTION OF THE ASSESSEE. THE TRIBUNAL ORDER REGARDING DISMISSAL OF THE C.O. IS MODIFIED AS PER ABOVE, ALTHOUGH END RESULT REMAINS THE SAME. 4. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS DISPOSED OFF IN TERMS INDICATED ABOVE. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 30/3 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2/4.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 13/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.13/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13/4/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .