INCOME TAX OFFICER 27 (3) (4), MUMBAI V. UDAY NAMDEO SALUNKHE, MUMBAI

MA 193/MUM/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7827 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 07-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Period of limitation

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE SHRI SHAMIM YAHYA , A M AND HONBLE SHRI SANDEEP GOSAIN, J M M .A. NO . 193/MUM/2017 (IN ITA NO 6188 /MUM/201 4 ) ( / ASSESSMENT YEAR: 2005 - 06 ) ITO 27(3)(4) 4 TH FLOOR, ROOM NO. 427, TOWER NO. 6, VASHI RLY STATION COMPLEX, VASHI, NAVI MUMBAI - 400 705 / VS. SHRI UDAY NAMDEO SALUNKHE, B - 70 & 71, MADHURIRI CHS, V. N. PURAV MARG, CHEMBUR, MUMBAI - 400 071 ./ ./ PAN/GIR NO. A BSPS4204K ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAJESH YADAV , DR / RESPONDENT BY : SHRI M. SUBRAMANIAN , AR / DATE OF HEARING : 28/09 /201 8 / DATE OF PRONOUNCEMENT : 26.12.2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE RE VENUE AGAINST THE ORDER DATED 06.05.16 PASSED IN ITA NO. 6188 TO 6194 /MUM/14 FOR ASSESSMENT YEAR 2005 - 06 TO 2011 - 12 . 2 M A NO. 193 /MUM/2017 SHRI UDAY NAMDEO SALUNKHE 2. AT THE VERY OUTS ET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO THE WRITTEN SUBMISSION FILED BY THE ASSESSEE WHEREIN SPECIFIC PLEA HAS BEEN RAISED WITH REGARD TO THE MAINTAINABILITY OF THE PRESENT MISC. APPLICATION FILED BY THE REVENUE ON THE GROUND THAT THE SAME IS BARRED BY LIMITATION AS THE ORDER IN T HE PRESENT CASE WAS PASSED ON 06.05 .16 AND THE TIME PERIOD PRESCRIBED FOR FILING MA AS PER SECTION 254(2) OF THE ACT IS 6 MONTHS FROM THE END OF THE MONTH, IN WHICH THE ORDER WAS PASSED. THUS IN THIS W AY, THE PRESENT APPLICATION MOVED BY THE REVENUE IS BARRED BY LIMITATION. 3. AFTER HEARING THE PARTIES AT LENGTH ON THIS LEGAL ISSUE WITH REGARD TO THE MAINTAINABILITY OF THIS APPLICATION AND AFTER PERUSING THE RECORDS, WE FIND THAT THE ORDER WAS PASSED B Y THE TRIBUNAL IN THIS CASE ON 06.05 .16 AND ACCORDINGLY, THE PRESCRIBED PERIOD AS PE R SECTION 254(2) OF THE ACT IS 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IN THIS WAY, THE TIME PERIOD FOR FILING THE MA WAS UP TO 30 TH NOV, 2016 , BU T THIS MISC. APPLICATION HAS BEEN FILED BY THE REVENUE ON 05 .04.17 I.E. MUCH BEYOND THE PRESCRIBED PERIOD. 4. WE ALSO FIND THAT THE IDENTICAL ISSUE IN RESPECT OF SECTION 254(2) OF THE ACT HAS ALREADY BEEN DISCUSSED AND INTERPRETED BY THE COORDINATE BENCH OF ITAT IN THE CASE OF M/S SHAMSUNISSA BEGUM VRS DCIT (2017) 83 TAXMAN.COM 96 3 M A NO. 193 /MUM/2017 SHRI UDAY NAMDEO SALUNKHE (BAN - TRIB), WHEREIN IT WAS HELD THAT WHERE PETITION FOR RECALLING TRIBUNALS ORDER WAS FILED BEYOND PERIOD OF 6 MONTHS FROM DATE OF TRIBUNALS ORDER, IN ABSENCE OF ANY PROVISION TO CONDONE DELAY UNDER ACT, SAME WOULD BE BARRED BY LIMITATION U/S 254(2) OF THE ACT AND ALSO IN THE CASE OF SRINIVAS SASHIDHAR CHAGANTY VRS. ITO (2017) 88 TASMANN.COM 883(HYD - TRIB) , WHEREIN IT WAS HELD THAT SECTION 254 OF THE IT. ACT 1961 APPELLATE TRI BUNAL POWERS OF (SCOPE OF POWER) ASSESSMENT YEAR 2007 - 08 SECTION 254(2) REFERS TO PERIOD OF LIMITATION RECKONING FROM END OF MONTH IN WHICH ORDER IS PASSED AND NOT FROM DATE OF RECEIPT OF ORDER. 5. APART FROM ABOVE, IT WAS ALSO SUBMITTED BY THE LD. DR THAT THE REVENUE HAS ALSO APPEALED TO THE HONBLE HIGH COURT OF BOMBAY AGAINST THE ORDER PASSED BY THE BENCH. THUS, IN THIS WAY, NO PARRELLEL PROCEEDINGS ARE MAINTAINABLE. 6. AFTER PERUSING THE CONTENTS OF THE PRESENT M.A, WE FIND THAT THE REVENUE HAS NOT BEEN ABLE TO PIN POINT ANY ERROR APPARENT FROM THE RECORD. THE BENCH HAD CONSIDERED ALL THE SUBMISSIONS OF BOTH THE PARTIES AND HAD DEALT WITH THE GROUNDS SPECIFICALLY RAISED BY THE REVENUE. WE ALSO PLACE RELIANCE ON THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR & BROS . PVT. LTD. (176 ITR 535) WHEREIN IT WAS HELD THAT THE DECISION 4 M A NO. 193 /MUM/2017 SHRI UDAY NAMDEO SALUNKHE OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WH ETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGEMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. 7. I N VIEW OF THE ABOVE DISCUSSION AS NO GLARING, OBVIOUS OR PATENT MISTAKE HAS BEEN POINTED OUT BY THE ASSESSEE WHICH IS APPARENT FROM THE RECORD AND EVEN OTHERWISE THE PRESENT APPLICATION IS BARRED BY LIMITATION, THEREFORE WE ARE INCLINED TO DISM ISS THE MA FILED BY THE REVENUE . 5 M A NO. 193 /MUM/2017 SHRI UDAY NAMDEO SALUNKHE 8 . IN THE NET RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE STANDS DISMISS ED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DEC , 201 8 SD/ - SD/ - ( SHAMIM YAHYA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 26 .12 .201 8 SR.PS DHANANJAY. / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FI LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI