UNI DESIGN JEWELLERY P. LTD, V. ITO 8(3)(4),

MA 191/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7025 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 28-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: VIJAY KUMAR S BIRYANI
• Keywords: Bonafide mistake

Judgement Text

1 MA N O.191/M/2011,UNI-DESIGN JEWELLERY PVT. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B BEFORE SHRI D. K. AGARWAL, J.M. AND SHRI R.K. PANDA , A.M. M.A. NO. 191/MUM/2011 ARISING OUT OF ITA NO. 9042/MUM/2004 ASSESSMENT YEAR 2001-02 M/S UNI DESIGN JEWELLERY PVT. LTD., PLOT NOS. 4,5 & 6 (PART), SEEPZ, ANDHERI (E), MUMBAI 400 093. PAN AAACU0572G VS. I.T.O. 8(3)(4), AAYAKAR BHAWAN, M.K. ROAD, MUMBAI. 20 APPLICANT RESPONDENT APPLICANT BY SHRI VIJAY KUMAR S. BIRYANI RESPONDENT BY SHRI P.K.B. MENON DATE OF HEARING 29.7.2011 DATE OF PRONOUNCEMENT 23.9.2011 PER R.K. PANDA, A.M. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N REQUESTS THE TRIBUNAL TO RECALL THE ORDER FOR FRESH ADJUDICATION OF ASSESSEES APPEAL IN ITA NO. 9042/MUM/2004 FOR A.Y. 2001-02 ORDER DT. 30.10. 2009 SINCE CERTAIN MISTAKES HAVE CREPT IN THE SAID ORDER. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT WHILE DISMISSING THE GROUND NO. 2 OF ASSESSEES APPEAL, THE HONBLE MEM BERS HAVE OBSERVED THAT LOSS OF ` 3,55,076 HAS ARISEN FROM THE TRADING ACTIVITY CARR IED ON AT THE HEAD OFFICE AT MUMBAI. ADMITTEDLY, THE ACTIVITY OF TRAD ING AT THE HEAD OFFICE IS UNCONNECTED WITH THE SECTION 10A UNIT. HOWEVER, THE Y HAVE THEREAFTER WRONGLY OBSERVED AS UNDER:- 2 MA N O.191/M/2011,UNI-DESIGN JEWELLERY PVT. LTD. 2 WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF THE CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN R ESTRICTING THE DEDUCTION U/S 10A TO ` 1,43,12,012/- AS AGAINST THE CLAIM OF DEDUCTION OF ` 1,46,67,908/- MADE BY THE ASSESSEE. THIS GROUND BY THE ASSESSEE IS ACCORDINGLY DISMISSED. 3. SHE SUBMITTED THAT THIS BEING A BONAFIDE MISTAKE , THE MATTER MAY BE RECALLED FOR FRESH ADJUDICATION OR APPROPRIATE ORDE R MAY BE PASSED. 4. THE LD. D.R. ON THE OTHER HAND OPPOSED THE MISCE LLANEOUS APPLICATION. 5. AFTER HEARING BOTH THE SIDES WE FIND SOME FORCE IN THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. WE F IND THE TRIBUNAL AT PARA 9 OF THE ORDER HAS RECORDED THE SUBMISSION OF THE LD. CO UNSEL WHICH IS AS UNDER:- THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO P AGE 32 OF THE PAPER BOOK SUBMITTED THAT THE CITY OFFICE HAS SHOWN LOSS OF ` 3,36,541/-. THIS IS DUE TO TRADING ACTIVITY CARRIED OUT AT THE CITY OFFICE. S HE SUBMITTED THAT THE ACTIVITIES AT THE CITY OFFICE ARE INDEPENDENT ACTIVITIES AND THE ASSESSEE IS ENTITLED TO GET FULL BENEFIT UNDER SECTION 10A OF THE ACT. SHE ALSO SUB MITTED THAT ALL THE THREE UNITS SHOULD BE TREATED AS DIFFERENT UNITS FOR THE PURPOS E OF CALCULATION OF DEDUCTION UNDER SECTION 10A. 5.1 WE FIND THE TRIBUNAL HAD GIVEN A FINDING THAT T HE ACTIVITY OF TRADING AT THE H.O. IS UNCONNECTED WITH THE SECTION 10A UNIT. HOW EVER, THE TRIBUNAL HAS DISMISSED THE GROUND RAISED BY THE ASSESSEE. SINCE THIS IS A BONAFIDE MISTAKE, THEREFORE, WE RECALL THE ORDER OF THE TRIBUNAL FOR THE LIMITED PURPOSE OF DECIDING GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE. THE RE GISTRY IS DIRECTED TO ISSUE NOTICE IN NORMAL COURSE. 3 MA N O.191/M/2011,UNI-DESIGN JEWELLERY PVT. LTD. 3 6. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED ON 23.9.2011. SD/- SD/- (D. K. AGARWAL) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI, DATED 23.9.2011. RK COPY TOTHE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) - CONCERNED, MUMBAI 3. THE CIT, CONCERNED, MUMBAI 4. THE DR BENCH, J 5. MASTER FILE TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 MA N O.191/M/2011,UNI-DESIGN JEWELLERY PVT. LTD. 4 DATE INITIALS 1. DRAFT DICTATED 8.9.11, 20.9.11 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 8.9.2011, 20.9.11 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER. 5 MA N O.191/M/2011,UNI-DESIGN JEWELLERY PVT. LTD. 5