Mehta Charitable Prajnalaya Trust, Delhi V. ITO (E), New Delhi

MA 182/DEL/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6623 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 17-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Assessee Lawyers: S KRISHNAN; V RAJAKUMAR ADVOVATES
• Keywords: Bonafide mistake

Judgement Text

1 MA NO. 182/DEL/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY-A NEW DELHI BEFORE SHRI G. S. PANNU, VICE PRESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER MISC. APPLICATION NO. 1 82/DEL/2020 IN ITA NO. 134/DEL/2017) ( A.Y. 2010-11) MEHTA CHARITABLE PRAJNALAYA TRUST, 104, TILAK BAZAR CHOWK, DELHI 110 006. (PAN : AAAFM 2171 L) (APPELLANT) VS ITO(E) TRUST WARD-IV NEW DELHI. (RESPONDENT) APPELLANT BY S/SHRI S. KRISHNAN & V. RAJAKUMAR, ADVOVATES RESPONDENT BY SH. PRAKASH DUBEY, SR. DR. ORDER PER SUCHITRA KAMBLE, JM THIS MISC. APPLICATION IS FILED BY THE ASSESSEE IN RESPECT OF ORDER DATED 31.12.2019 WHICH IS A CONSOLIDATED ORDER PASS ED BY THIS TRIBUNAL. 2. THE LD. AR SUBMITTED THAT THE ASSESSEE VIDE APPL ICATION DATED 17.12.2019 SOUGHT PERMISSION TO WITHDRAW THE APPEAL S FOR THE ASSESSMENT YEARS 1992-93 TO 19994-95, 2001-02, 2005-06 TO 2008 -09 AND 2010-11 TO 2012-13. THE LD. AR FURTHER SUBMITTED THAT AT THE T IME OF WITHDRAWAL OF APPLICATION, THE ASSESSES APPREHENSION WAS THAT TH E PROPER RELIEF WILL BE GRANTED IN RESPECT OF APPEAL EFFECT ORDERS TO THE D IRECTIONS OF THE CIT(A) IN THOSE CASES. AFTER WITHDRAWING THE APPEALS, THE ASS ESSEE FOUND THAT THERE IS ONE DIFFERENCE BETWEEN ITA NO. 134/DEL/2017 FOR AY 2010-11 AND OTHER GROUP CASES. THE LD. AR POINTED OUT THAT THE CIT(A) IN ASSESSMENT YEAR DATE OF HEARING 29.01.2021 DATE OF PRONOUNCEMENT 29.01.2021 2 MA NO. 182/DEL/2020 2010-11 HAS ALSO GIVEN A COMMON DIRECTION BUT THE ASSESSING OFFICER VIDE ORDER DATED 27.01.2017 ADDITIONALLY PUT THE ASSESSE E TO TAX A LONG TERM CAPITAL GAIN AMOUNTING TO RS. 10,75,77,958/-. THUS, THE LD. AR SUBMITTED THAT THE FACTS IN THE ASSESSMENT YEAR 2010-11 RELAT ING TO ITA NO. 134/DEL/2017 ARE DIFFERENT AND THE SAME ARE NOT ID ENTICAL. THEREFORE, THE LD. AR SUBMITTED THAT THE WITHDRAWAL WILL ADVERSELY AFFECT THE ASSESSEE IN THIS PARTICULAR ASSESSMENT YEAR I.E. AY 2010-11. 3. THE LD. AR SPECIFICALLY PRAYED THAT THE REASON F OR RESTORATION OF ITA NO. 134/DEL/2017 (AY 2010-11) WAS SOUGHT BY THE ASS ESSEE IS THAT THE MATTER IS NOT HEARD ON MERIT AND ALSO THAT RELEVANT APPLICATION UNDER VIVAD SE VISHWAS SCHEME, 2020 CAN BE MOVED. THE LD. AR AC CORDINGLY FILED THE AFFIDAVIT DATED 29.01.2021 OF THE FOUNDER TRUSTEE O F THE ASSESSEE, SH. RAJ KUMAR MEHTA. 4. THE LD. DR SUBMITTED THAT THERE IS NO MISTAKE AP PARENT ON RECORD, THEREFORE, THE PRESENT MISC. APPLICATION SHOULD NOT BE ENTERTAINED. BUT THE LD. DR FURTHER ADMITTED THAT THE MATTER WAS NOT HEA RD ON MERIT. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIALS AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT T HE ASSESSING OFFICERS ORDER DATED 27.01.2017 HAS GIVEN SPECIFIC CALCULATIONS RE LATING TO ADDITION OF RS. 10,75,77,958/- AS LONG TERM CAPITAL GAIN WHICH IS NOT AT ALL IDENTICAL IN ANY OF THE EARLIER ASSESSMENT YEARS. FROM THE P RESENT MISC. APPLICATION THE REASON FOR RESTORATION OF APPEAL FOR ASSESSMENT YEAR 2010-11 STATED BY THE ASSESSEE APPEARS TO BE GENUINE AS THE ASSESSEE WANTS TO TAKE THE BENEFIT OF THE VIVAD SE VISHWAS SCHEME, 2020 AS WEL L AS IF THE ASSESSEE DOES NOT SUCCEED THE ASSESSEE NEEDS TO CONTEST THIS MATTER ON MERIT BEFORE THE TRIBUNAL. SINCE THE FACTUAL ASPECT WERE NOT DIS CUSSED AT THE TIME OF WITHDRAWAL APPLICATION AND THE DISMISSAL OF THE CON SOLIDATED APPEALS, THE BONAFIDE MISTAKE MADE BY THE ASSESSEE SHOULD NOT TA KE AWAY THE RIGHT TO PLEAD THE CASE AT THE APPROPRIATE FORUM. FURTHER, T HE ASSESSEE WAS NOT HEARD ON MERIT FOR ASSESSMENT YEAR 2010-11. THEREF ORE, PRIMA FACIE THE ASSESSEE HAS PROVED THAT THE TRIBUNALS ORDER DATED 31.12.2019 SHOULD BE 3 MA NO. 182/DEL/2020 RECALLED ONLY IN RESPECT OF ITA NO. 134/DEL/2017 (A Y 2010-11). WE ACCORDINGLY, RESTORE THIS APPEAL. THE MISC. APPLIC ATION IS ALLOWED. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES UPON CONCLUSION OF VIRTUAL HEARING ON 29 TH DAY OF JANUARY, 2021. SD/- SD/- (G. S. PANNU) (SUCHITRA KAMBLE) VICE PRESIDENT JUDIC IAL MEMBER DATED: 29/01/2021 SRB/R.N COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 MA NO. 182/DEL/2020