ACIT, Chettur V. M/s. India Cements Capital and Finance Ltd., CHENNAI

MA 202/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6558 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-03-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 17-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: R VIJAYARAGHAVAN

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M .P.NO . 2 02 / CHNY /2017 [IN M.P. NO. 273/CHNY/2016 IN I.T.A. NO. 1 626 / CHNY /20 1 2 ] ASSESSMENT YEAR : 20 06 - 07 THE INCOME TAX OFFICER , CORPORATE WARD 2(4), CHENNAI 34. VS. M/S. INDIA CEMENTS CAPITAL & FINANCE LIMITED , NO. 827, ANNA SALAI, CHENNAI 600 002. [PAN: AAACA3071C] ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI N. MADHAVAN, ADDL. JCIT / RESPONDENT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE / DATE OF HEARING : 09 .0 3 .2018 / DATE OF P RONOUNCEMENT : 03 . 0 5 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION , THE REVENUE SEEKS TO REC ALL /RECTIFY THE ORDER PASSED BY THE TRIBUNAL IN M.P. NO. 273/MDS/2016 DATED 17.02 .2017 IN I.T.A. NO. 1 626 /MDS/20 1 2 DATED 11 .0 8 .201 6 RELEVANT TO THE ASSESSMENT YEAR 20 06 - 07 . BY REFERRING TO THE PETITION, THE LD. DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IN I.T.A. NO.1 626 /MDS/201 2 DATED 11 .0 8 .201 6 MAY BE RECALLED AND ADJUDICATED AFRESH SINCE THERE IS MISTAKE M .P. NO . 2 02 / CHNY/1 7 2 APPARENT ON RECORD. MOREOVER, IT WAS THE SUBMISSION OF THE LD. DR THAT VIDE ORDER DATED 07.12.2017 IN T.C.A. NO. 588 OF 2017, THE HON BLE HIGH COURT OF JUDICATURE AT MADRAS SET ASIDE THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 1626/MDS/2 0 12 DATED 11.08.2016 AND REMANDED THE MATTER TO THE TRIBUNAL FOR FRESH CONSIDERATION. 2. THE LD. COUNSEL FOR THE ASSESSEE DID NOT OBJECT TO THE SUBMISSIONS OF THE LD. DR . 3. WE HAVE HEARD BOTH SIDES AND PERUSED THE PETITION FILED BY THE REVENUE . AGAI NST THE ORDER OF THE TRIBUNAL IN I.T.A. NO.1 626 /MDS/201 2 DATED 11 .0 8 .201 6, THE ASSESSEE FILED MISCELLANEOUS PETITION SEEKING RECALL THE ORDER OF THE TRIBUNAL SINCE THERE IS MISTAKE APPARENT ON RECORD AND, BY RECTIFYING THE MISTAKE IN PARA 8 OF THE ORDER OF THE TRIBUNAL AS TO BE READ AS PARTLY ALLOWED INSTEAD OF DISMISSED , VIDE ITS ORDER IN M.P. NO. 273/MDS/2016 DATED 17.02.2017 , THE TRIBUNAL PARTLY ALLOWED THE MP FILED BY THE ASSESSEE. AGAINST THE ORDER OF THE TRIBUNAL IN M.P. NO. 273/MDS/2016 DATED 17.02 .2017 ARISING OUT OF ORDER IN I.T.A. NO.1 626 /MDS/201 2 DATED 11 .0 8 .201 6, THE REVENUE FILED THE PRESENT MISCELLANEOUS PETITION RAISING THE FOLLOWING GROUNDS: 1. THE ABOVE APPEAL WAS DISPOSED OF BY THE HON'BLE TRIBUNAL BY ITS ORDER DATED 17.02.2017. THE APP ELLANT, IN THE ASSESSMENT YEAR MENTIONED, BEG TO PRESENT THIS PETITION FOR RECTIFICATION OF A MISTAKE, WHICH IS APPARENT FROM RECORD, IN THE SAID ORDER. M .P. NO . 2 02 / CHNY/1 7 3 2. THE APPELLANT HAS COME ON MISCELLANEOUS PETITION BEFORE THE HON'BLE TRIBUNAL WITH A GRIEVANCE THA T THE HON'BLE TRIBUNAL ERRED ON THE FOLLOWING GROUNDS: 3. THE ALTERNATE GROUND RAISED AND DECIDED BY THE HON'BLE TRIBUNAL WAS NEVER RAISED BEFORE THE ASSESSING OFFICER AND HE HAD NO OCCASION TO VERIFY THE ASSERTIONS MADE BY THE ASSESSEE. 4. THE ALTER NATE GROUND RAISED AS DECIDED BY THE HON'BLE TRIBUNAL WAS NEVER RAISED BY THE ASSESSEE AT ANY TIME EARLIER BEFORE THE HON'BLE TRIBUNAL. THE HON'BLE TRIBUNAL ERRED IN ADJUDICATING THE ISSUE WHICH WAS NOT THE SUBJECT MATTER OF APPEAL, UNDER THE COVER OF A MI SCELLANEOUS PETITION. 5. EVEN WHILE ALLOWING THE MISCELLANEOUS PETITION OF THE ASSESSEE, THE HON'BLE TRIBUNAL ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO EXAMINE WHETHER THE TRANSACTIONS MADE IN THE BOOKS OF THE SPY ATTRACTED ANY TAX LIABILITY. 6. THE ABOVE VIEWS SUPPORTS THE CASE OF THE REVENUE. HOWEVER, THE HON'BLE TRIBUNAL FINALLY ADJUDICATED THE ABOVE ISSUE IN FAVOUR OF THE ASSESSEE. HENCE, IT IS REQUESTED THAT THE HON'BLE TRIBUNAL PASS APPROPRIATE ORDER AS IT MAY DEEM FIT TO DO SO. 7. THE APPELLANT, THEREFORE, PRAYS THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO DISPOSE OF THE MISCELLANEOUS PETITION AT THE EARLIEST CONVENIENCE. 4. MEANWHILE, AGAINST THE ORDER OF THE TRIBUNAL DATED 11.08.2016 IN I.T.A. NO. 1626/MDS/2012, THE ASSESSEE PREFERR ED FURTHER APPEAL AND VIDE ITS ORDER IN T.C.A. NO. 588 OF 2017 DATED 07.12.2017, WHILE REMANDING THE MATTER BACK TO THE TRIBUNAL FOR FRESH CONSIDERATION, THE HON BLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: 9. ACCORDINGLY, THE ABOVE TAX CASE APPEAL IS ALLOWED, THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMANDED TO THE TRIBUNAL FOR A FRESH CONSIDERATION UNINFLUENCED BY THE OBSERVATIONS MADE IN PARAGRAPH 13 OF THE EARLIER ORDER PASSED BY THE TRIBUNAL DATED 03.04.2012. SINCE WE HAVE REMANDED THE MATTER FOR A FRESH CONSIDERATION, IT IS OPEN TO BOTH PARTIES TO RAISE ALL FACTUAL AND LEGAL CONTENTIONS BEFORE THE TRIBUNAL. NO COSTS. M .P. NO . 2 02 / CHNY/1 7 4 5. IN VIEW OF THE SPECIFIC DIRECTIONS OF THE HON BLE MADRAS HIGH COURT THAT IT IS OPEN TO BOTH THE PARTIES TO RAISE AL L FACTUAL AND LEGAL CONTENTIONS BEFORE THE TRIBUNAL , PRIMA FACIE, THE ORDER OF THE TRIBUNAL IN THE APPEAL FILED BY THE REVENUE IN I.T.A. NO. 1626/CHNY/2016 DATED 11.08.2016 IS RECALLED AND POSTED FOR HEARING ON 09.05.2018 AND THE SAME WAS PRONOUNCED IN THE OPEN COURT. SINCE, THE LD. COUNSEL FOR THE ASSESSEE ENDORSED IN THE ORDER SHEET HAVING NOTED THE DATE OF HEARING OF THE APPEAL, NO SEPARATE NOTICE WOULD SERVED ON BOTH THE PARTIES. ACCORDINGLY, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IN M.P. NO. 202/CHNY/2017 IS DISPOSED OF. ORDER PRONOUNCED ON THE 03 RD MAY , 201 8 AT CHENNAI. SD/ - SD/ - ( ABRAHAM P. GEORGE ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 03 .0 5 . 201 8 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.