The ITO, Ward-2, Palanpur V. M/s. Hiralal & Sons, Banaskantha

MA 19/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1026 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: N C AMIN

Judgement Text

M.A NO 19/AHD/2013 ( IN ITA NO. 1223/A/13 . A.Y. 2008- 09 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) M. A. NO. 19 /AHD/2013 (IN ITA NO. 12 23/AHD/2011) (ASSESSMENT YE AR:2008-09) THE I.T. O. WARD-2, PALANPUR (APPELLANT) VS. M/S. HIRALAL & SONS GANDHI CHOWK, RISALA BAZAR, DEESA- 385235 TAL. DEESA DIST. BANASKANTHA. (RESPONDENT) PAN: AABHF 2769L APPELLANT BY : SHRI P.L. KUREEL, SR. D.R . RESPONDENT BY : SHRI N. C. AMIN ( )/ ORDER DATE OF HEARING : 18-10-2013 DATE OF PRONOUNCEMENT : 22-11-2013 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS M.A. THE REVENUE HAS SUBMITTED FOR RECAL LING OF THE EX-PARTE ORDER DATED 21.09.2012 OF TRIBUNAL IN ITA. NO. 1223/AHD/2 011 DATED 25.05.2012. 2. REVENUE HAS SUBMITTED THAT THE HON. TRIBUNAL VI DE ITS ORDER DATED 21.09.2012 HAS RECALLED ITS ORDER DATED 25.05.2012, FOR ADJUDICATING THE LEGAL GROUNDS WHICH WERE NOT ADJUDICATED WHILE DISPOSING THE APPEAL. M.A NO 19/AHD/2013 ( IN ITA NO. 1223/A/13 . A.Y. 2008- 09 2 3. THE LD. D.R. SUBMITTED THAT HON. TRIBUNAL HAD DE CIDED THE MATTER BOTH ON FACTS AS WELL AS IN LAW AND THEREFORE THERE WAS NO MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECALLING ITS EARLIER ORDER O N ASSESSEES MISCELLANEOUS APPLICATION (M.A). HE THEREFORE SUBMITTED THAT THE M.A. OF ASSESSEE RECALLING THE ORDER BE WITHDRAWN. THE LD. A.R. ON THE OTHER H AND SUBMITTED THAT THE HON. TRIBUNAL DID NOT CONSIDER THE DECISION OF HON. GUJARAT HIGH COURT IN THE CASE OF NITIN GARG 208 TAXMAN 16 AND THEREFORE THE NON CONSIDERATION OF DECISION OF JURISDICTIONAL HIGH COURT WAS A MISTAKE APPARENT FROM RECORD AND THEREFORE THE ORDER WAS RIGHTLY RECALLED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT VIDE M.A. NO. 111/AHD/2012 ORDER DATED 21 .09.2012, THE ORDER DATED 25.05.2012 WAS RECALLED FOR THE LIMITED PURPO SE OF DECIDING THE LEGAL ISSUE NAMELY THE GROUNDS RAISED BY THE ASSESSEE WER E COVERED BY THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF ITO V S. NITIN GARG (SUPRA). 5. THE HON. GUJARAT HIGH COURT IN THE CASE OF SUHR ID GEIGY LTD. VS. COMMISSIONER OF SURTAX (1999) 237 ITR 834 HAS HELD THAT IF THE POINT IS COVERED BY A DECISION OF JURISDICTIONAL COURT RENDE RED PRIOR OR EVEN SUBSEQUENT TO THE ORDER OF RECTIFICATION, IT COULD BE SAID TO BE MISTAKE APPARENT FROM THE RECORD UNDER SECTION 254(2) OF T HE ACT AND COULD BE RECTIFIED BY THE TRIBUNAL. 6. THE HON. SUPREME COURT IN THE CASE OF A.C.I.T. VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 HAS HELD THAT NON CONSIDERATION OF A DECISION OF JURISDICTIONAL COURT OR OF THE SUPREME COURT CAN BE SAID TO BE MISTAKE APPARENT FROM THE RECORD WHICH COULD BE R ECTIFIED UNDER SECTION 254(2). M.A NO 19/AHD/2013 ( IN ITA NO. 1223/A/13 . A.Y. 2008- 09 3 7. IN THE PRESENT CASE, SINCE THE DECISION OF JURI SDICTIONAL HIGH COURT WAS NOT CONSIDERED, THE ORDER WAS RECALLED FOR A LIMITED PU RPOSE. IN VIEW OF THE AFORESAID DECISIONS OF HON. SUPREME COURT AND HIGH COURT, WE ARE OF THE VIEW THAT THE ORDER RECALLING FOR THE LIMITED PURPO SE OF DECIDING LEGAL ISSUE WAS CORRECT ON FACTS AND LAW. IN VIEW OF THE AFORES AID FACTS, THE PRESENT M.A. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22 - 11 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRA R ITAT, AHMEDABAD