BHARAT R. RUIA(HUF), MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 47, MUMBAI

MA 202/MUM/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8067 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMA
• Section: 271(1)(c); 254(2); 154

Judgement Text

1 MA NOS. 202-205/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.202 /MUM/2017 (ARISING OUT OF ITA NO.750/MUM/2014) (ASSESSMENT YEAR: 2005-06) & M.A. NO.203 /MUM/2017 (ARISING OUT OF ITA NO.751/MUM/2014) (ASSESSMENT YEAR: 2006-07) & M.A. NO.204 /MUM/2017 (ARISING OUT OF ITA NO.752/MUM/2014) (ASSESSMENT YEAR: 2007-08) & M.A. NO.205 /MUM/2017 (ARISING OUT OF ITA NO.753/MUM/2014) (ASSESSMENT YEAR: 2008-09) BHARAT R. RUIA (HUF) PROP. B.R.INTERNATIONAL RUIA HOUSE 19, BHAUSAHEB HIRE MARG MALABAR HILLS MUMBAI-400 006 PAN : AACHB3596E VS ACIT, CENTRAL CIRCLE - 47 MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI VIJAY MEHTA, AR RESPONDENT BY SHRI. KUMAR PADMAPANI BORA, DR DATE OF HEARING 03.01.2020 DATE OF PRONOUNCEMENT 20 .01.2020 2 MA NOS. 202-205/MUM/2017 O R D ER PER G MANJUNATHA: AM THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLICAT IONS U/S 254(2) OF THE I.T.ACT, 1961 AGAINST THE ORDER OF TH E TRIBUNAL, DATED 08/02/2017 IN ITA NOS. 750 TO 753/MUM/2014 FOR AY S 2005-06 TO 2008- 09. 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL, DA TED 08/02/2017 AND THE CONTENTS OF MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ALL FOUR YEARS IS MORE OR LESS IDENTICAL. THEREFORE, FO R THE SAKE OF BREVITY, THE CONTENTS OF MISCELLANEOUS APPLICATIONS FILED FOR AY 2005-06 IN M.A. NO. 202/MUM/2017 ARE REPRODUCED AS UNDER:- THE ABOVE MENTIONED APPEALS WERE DISPOSED OFF BY TH E HON'BLE APPELLATE TRIBUNAL MUMBAI BENCH 'B VIDE ORDER DATED 08-02-20 17. THE APPELLANT IS MOVING THIS APPLICATION BEFORE THE HON'BLE ITAT 'B BENCH MUMBAI AS CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE O RDER. THE APPELLANT REQUEST TO RECTIFY THE MISTAKES APPARENT FROM THE R ECORD BRINGS THE FOLLOWING FACTS FOR YOUR HONOURS CONSIDERATIONS WHICH ARE AS STATED HERE UNDER; THE SAID ORDER SUFFERS FROM MISTAKE WHICH IS APPARE NT FROM RECORDS AS THE HON'BLE MEMBERS OF THE BENCH SHOULD HAVE CONSIDERED OUR ADJOURNMENT APPLICATION WHICH WAS AVAILABLE ON RECORD BEFORE CO NFIRMING THE PENALTY ORDER PENDING THE DISPOSABLE OF THE QUANTUM ORDER PENDING THE DISPOSABLE OF THE QUANTUM ORDER AND SHOULD HAVE CONSIDERED THE ADDITI ONAL GROUNDS OF APPEAL WHICH THE APPELLANT HAD FILED BEFORE ITAT ON 25.05. 2015 AND THEREFORE THE DISPOSAL OF THE PENALTY ORDER WHEN QUANTUM, IS PEND ING WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD WHICH HAS CREPT INTO T HE ORDER HAS PERHAPS BEEN OVER LOOKED DUE TO OVER SIGHT YOUR HONOUR MAY KINDLY CONSIDER THE FOLLOWING CHORO LOGY OF THE EVENTS ARE AS FOLLOWS: AY 2005-06 DATE PARTICULARS REMARKS 31-01-2014 APPELLANT FILED THE APPEAL AGAINST THE ORDER OF THE CIT (A) 38 ORDER RECEIVED ON 6 TH DECEMBER 2013. APPEAL NO ITA 750 TO 753/MUM/ MATTER FIXED ONL3- 07-2015. 3 MA NOS. 202-205/MUM/2017 2014. 25-05-2015 & 22-07-2015 DEPARTMENT ALSO FILED THE APPEAL AGAINST THE ORDER OF THE CIT (A) 38 ORDER RECEIVED ON 6* DECEMBER 2013. APPEAL NO ITA 949 TO 952/MUM/ 2014. MATTER FIXED ON 22-07-2015 03-07-2015 THE APPELLANT FILED THE PAPER BOOK FOR AY 2005-06 15-02-2016 & 18-02-2016 THE APPELLANT FILED A LETTER REQUESTING FOR AN ADJOURNMENT OF THE MATTER ON THE GROUNDS THAT THE APPELLANT HAD FILED AN APPEAL AGAINST THE REJECTION THE AQ'S ORDER AGAINST THE APPLICATION MADE U/S 154 ON 31 ST MARCH 2015 TO CIT (A) - 50 RAISING CERTAIN LEGAL ISSUES ON THE QUANTUM AND THE MATTER WAS PENDING BEFORE THE CIT (A)- 50 THE ITAT ADJOURNED THE MATTER FOR AY 2005-06 MATTER FIXED ON 13- 07-2016 07-07-2016 & 13-07-2016 THE APPELLANT FILED A LETTER REQUESTING THE MATTER ADJOURNED AS THE CIT (A) 50 HAD STILL NOT DISPOSED OFF THE APPEAL FILED ON THE QUANTUM. THE ITAT ADJOURNED THE MATTER WHICH WAS FIXED FOR HEARING ON FOR ALL THE AY I,E. FOR AY 2005-06 MATTER FIXED ON 24- 08-2016 22-08-2016 & 24-08 2016 THE APPELLANT FILED A LETTER REQUESTING THE MATTER TO BE ADJOURNED AS THE CIT (A) 50 HAD STILL NOT DISPOSED OFF THE APPEAL FILED ON THE QUANTUM. THE ITAT ADJOURNED THE MATTER FOR FOR AY 2005-06 MATTER FIXED ON 11- 01-2017 11-01 2017 THE APPELLANTS REPRESENTATIVE CA CHANDRASHEKHAR COULD NOT APPEAR NOR SEEK AN ADJOURNMENT AND THE REASONS FOR THE SAME HAVE BEEN EXPLAINED IN THE AFFIDAVIT ATTACHED HEREWITH AND ANNEXED AS ANNEXURE A 4 MA NOS. 202-205/MUM/2017 ON THE BASIS OF THE ABOVE MENTIONED WE MAY REQUEST YOUR HONOUR'S TO RECALL YOUR ORDER WHICH WAS PASSED ON 08-02-2017 EX-PARTE AS NON APPEARED, ACE IT IS SUBMITTED THAT WHEN QUANTUM APPEAL IS PENDING AND IN THE INTEREST OF JUSTICE PENALTY MATTER SHOULD HAVE BEEN KEPT IN ABE YANCE UNTIL DISPOSAL OF THE QUANTUM APPEAL. WE MAY FURTHER INVITE YOUR HONORS' ATTENTION THAT O N THE BASIS OF OUR ADJOURNMENT LETTER FILED EARLIER FOR REASONS STATED HEREIN IN ABOVE YOUR HONORS 1 HAD GIVEN US THREE ADJOURNMENT ON THE GROUNDS THAT THE QUANTUM ORDER HAVE BEEN PENDING TO BE DISPOSED OF BY THE CI T (A) - 50 AND THAT THE PENALTY MATTER MAY BE TAKEN UP ONLY AFTER THE QUANT UM MATTER HAS REACHED ITS FINALITY . SINCE THE FACTS ARE THE SAME WE MAY REQU EST YOUR HONORS 1 TO RECALL PENALTY ORDER SO PASSED ON 08-02-2017 AS IT WOULD A MOUNT TO MISTAKE APPARENT ON RECORD TO CONFIRM A PENALTY ORDER WHEN THE QUANTUM ORDER IS PENDING BEFORE THE CIT (A) 50. WE WOULD LIKE TO RELY ON THE FOLLOWING DECISIONS WH ERE THE COURTS HAVE GIVEN THE POWERS TO THE HONBLE TRIBUNAL TO EXERCISE ITS POWERS OF RECTIFICATION UNDER SECTION 254(2) TO RECALL ITS ORDER IN ENTIRETY: 1} HONDA SIEL POWER PRODUCTS LTD VS CIT - 295 1TR 4 66 (SC) ORDER DATED 26-11-2007. 2) LACHMAN DASS BHATIA HINGWAILA (P) LTD V AC1T (20 11) 330 1TR 243 (DELHI) THE APPELLANT SUBMIT THAT THE HONBLE ITAT SHOULD HAVE CONSIDERED OUR ADJOURNMENT APPLICATION WHICH WAS AVAILABLE ON RECO RD BEFORE CONFIRMING THE PENALTY ORDER PENDING THE DISPOSABLE OF THE QUANTUM ORDER AND SHOULD HAVE CONSIDERED THE ADDITIONAL GROUNDS OF APPEAL WHICH T HE APPELLANT HAD FILED BEFORE ITAT ON 2505-2015 AND THEREFORE THE DISPOSAL OF THE PENALTY ORDER WHEN QUANTUM, IS PENDING WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD WHICH HAS CREPT INTO THE ORDER. PRAYER; 1) THE HONBLE BENCH MAY BE PLEASED TO RECTIFY THE MISTAKE AS POINTED OUT HEREIN ABOVE AND RECALL THE ORDER DATED 08-02-2017 AND PASS A FRESH ORDER IN TERMS OF SECTION 254 (1) OF THE ACT. 2) THE HONBLE BENCH MAY RECALL THE ORDER DATED 08- 02-2017 AND PASS AN APPROPRIATE ORDER IN TERMS OF SECTION 254(1) OR MODIFY OR AMEND THE ORDER ALREADY PASSED. 3) ANY OTHER RELIEF WHICH THE HONBLE BENCH MAY DEE M FIT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE C ONTENTS OF THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AL ONG WITH ORDER OF THE TRIBUNAL, DATED 08/02/2017. WE FIND THAT THE TRIBUN AL HAS DISPOSED OF 5 MA NOS. 202-205/MUM/2017 APPEALS FILED BY THE ASSESSEE IN ITA NO. 750-753/MU M/2014 CHALLENGING LEVY OF PENALTY U/S 271(1)(C) OF THE I.T.ACT, 1961. WE FIND THAT THE TRIBUNAL HAS DISPOSED OF THE APPEAL OF THE ASSESEE EX-PARTE FOR NON APPEARANCE OF THE ASSESSEE. THE CONTENTIONS OF THE ASSESSEE IS THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL, INA SMUCH AS IN DISPOSING OF PENALTY APPEALS, WHEN THE QUANTUM APPEAL WAS PENDIN G BEFORE THE LD.CIT(A). WE FIND THAT WHEN, THE QUANTUM APPEAL IS PENDING BEFORE THE LOWER AUTHORITIES, DISPOSING OF PENALTY APPEAL ON T HE SAME ISSUES ON WHICH PENALTY HAS BEEN LEVIED WOULD CONSTITUTE A MI STAKE APPARENT ON RECORD. THEREFORE, WE ARE OF THE CONSIDERED VIEW TH AT THERE IS A MERIT IN THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE E AND ACCORDINGLY, THE ORDER OF THE TRIBUNAL IN ITA. NOS. 750 TO 753/ MUM/2014 IS RECALLED AND THE APPEALS ARE POSTED FOR HEARING ON 26/02/202 0, FOR WHICH NO SEPARATE NOTICE WILL BE ISSUED TO EITHER PARTIES. 4. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ALL AYS ARE DISPOSED OF IN TERMS OF OUR OBSERVATIO NS GIVEN HEREINABOVE ORDER PRONOUNCED IN THE OPEN COURT ON 20 .01.2020 SD/- SD/- MAHAVIR SINGH G M ANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 20.01.2020 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 6 MA NOS. 202-205/MUM/2017 BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//