ACIT 21(3), Mumbai V. M/s Shradha Apparels Worldwide, Mumbai

MA 205/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5401 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH JALAN
• Keywords: Bogus purchase
• Section: 205; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “एस एम सी”, मुंबई ᮰ी िवकास अव᭭थी, ᭠याियक सद᭭य के समᭃ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER एम.ए.सं. 205/मुं/2021 इन.आ.अ.सं.2716/मुं/2019 (िन.व.2009-10) M.A. NO.205/MUM/2021 in ITA No. 2716/MUM/2019 (A.Y.2009-10) एम.ए.सं. 206/मुं/2021 इन.आ.अ.सं.2717/मुं/2019 (िन.व.2010-11) M.A. NO.206/MUM/2021 in ITA No. 2717/MUM/2019 (A.Y.2010-11) एम.ए.सं. 207/मुं/2021 इन.आ.अ.सं.2718/मुं/2019 (िन.व.2011-12) M.A. NO.207/MUM/2021 in ITA No. 2718/MUM/2019 (A.Y.2011-12) ACIT-21(3), Room No. 209, 2 nd Floor, Piramal Chambers, Lalbaug, Mumbai-400012. ...... ᮧाथᭅक/Applicant बनाम Vs. M/s Shradha Apparels Worldwide, 201, Jogani Industrial Estate, 541, Senapati Bapat Marg, Dadar (W), Mumbai-400028 ..... ᮧितवादी/Respondent ᮧाथᭅक ᳇ारा/ Applicant by : Sh. T. Sankar ᮧितवादी ᳇ारा/Respondent by : Sh. Subhash Jalan सुनवाई कᳱ ितिथ/ Date of hearing : 07/01/2022 घोषणा कᳱ ितिथ/ Date of pronouncement : 07/01/2022 आदेश/ ORDER PER VIKAS AWASTHY, J.M: These three Miscellaneous Applications (MAs) under section 254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) have been filed by the Revenue for recalling the order of Tribunal common for ITA Nos. 2716, 2717 & 2718/Mum/2019, dated 13.11.2020. 2 एम.ए.सं. 205 to 207/मुं/2021 (िन.व.2009-10 to 2011-12) M.A. NO.205 to 207/MUM/2021 (A.Y.2009-10 to 2011-12) 2. Sh. T. Sankar representing the Department submitted that the Revenue had filed appeals in ITA No. 2716, 2717 & 2718/Mum/2019 for AYs 2009-10, 2010-11 & 2011-12, respectively against the order of CIT(A)-33 Mumbai dated 28.02.2019 common for the impugned AYs. The asssessee had also filed cross appeals against the aforesaid order of the CIT(A) in ITA No. 3255, 3256 & 3257/Mum/2019 for AY 2009-10 to 2011-12, respectively. The Tribunal vide order dated 17.09.2020 decided the appeals of the asssessee allowing part relief. Subsequently, the appals of the Revenue were separately decided/dismissed vide order dated 13.11.2020 by another bench of the Tribunal. 3. The ld. Departmental Representative (DR) pointed that the appeals by the Revenue and the asssessee should have been heard together and disposed of vide common order. Thus, there is mistake apparent on record in not decided the cross appeals against the same order of CIT(A) for the impugned AYs. 4. Submissions made by ld. DR heard, relevant documents/orders on record examined. The Revenue has filed MA for recalling the order of Tribunal in ITA No. 2716, 2717 & 2718/Mum/2019 (supra). The aforesaid appeals by the Revenue were not decided by the Tribunal along with the cross appeals filed by the asssessee in ITA No. 3255, 3256 & 3257/Mum/2019 (supra) against the same order of CIT(A). Insofar as argument of ld. DR that the cross appeals for the same AY are to be heard and disposed of together, there is no dispute about this proposition. The Hon’ble Supreme Court of India in the case of CST Vs. Vijay International Udyog, 152 ITR 111 has held that cross appeals should be heard together. 3 एम.ए.सं. 205 to 207/मुं/2021 (िन.व.2009-10 to 2011-12) M.A. NO.205 to 207/MUM/2021 (A.Y.2009-10 to 2011-12) 5. The issue involved in these cross appeals relate to estimated addition made in respect of bogus purchases. In assessment proceedings, the Assessing Officer (AO) made addition of the entire alleged bogus purchases in the AYs under appeal. In First Appellate Proceeding, the CIT(A) restricted the addition to 12.5% of bogus purchases. Against the findings of CIT(A), the Revenue filed appeal assailing the relief granted by the CIT(A) and the asssessee also filed appeal before the Tribunal against the same order of CIT(A) impugning the addition confirmed. The appeals of the asssessee came up for hearing on 15.09.2020, since, none appeared on behalf of the asssessee, the appeals were heard by the Bench in ex-parte proceedings. The Tribunal vide order dated 17.09.2020 granted part relief to the asssessee by restricting addition on account of bogus purchases to 11% in each of the impugned AYs. The ld. DR representing the Department at the time of hearing of assessee’s appeals never pointed to the Bench that the Revenue has also filed appeals against the same order of CIT(A) and those appeals are listed for hearing on some other day. Consequently, the appeals of the asssessee were heard by the Bench oblivious of the fact that there were cross appeals by the Revenue for the same AYs. 6. Subsequently, the appeals of the Revenue in ITA No. 2716, 2717 & 2718/Mum2019 (supra) came up for hearing on 22.10.2020 and they were decided by the Bench vide order dated 13.11.2020. Even during hearing of appeals by the Revenue, the ld. DR never pointed that the cross appeals by the asssessee have already been heard and order has been pronounced by the Co- ordinate Bench. Hence, the appeals of the Revenue were separately decided by the Bench dismissing all the three appeal. It is pertinent to mention here that the asssessee never appeared either during hearing of the appeals filed by the Revenue or the appeals filed by the asssessee. 4 एम.ए.सं. 205 to 207/मुं/2021 (िन.व.2009-10 to 2011-12) M.A. NO.205 to 207/MUM/2021 (A.Y.2009-10 to 2011-12) 7. Be that as it may, the separate orders passed by the Tribunal in these cross appeals are not conflicting in any manner whatsoever. While disposing of the appeals of the asssessee part relief has been granted to the asssessee, whereas, the appeals of the Revenue have been dismissed by separate order. Even if, these appeals would have been heard together, the net result would have been same. The purpose for hearing cross appeals together is to avoid conflicting judgments against the same impugned order. In any case, there is no conflict in the two separate orders of the Tribunal in cross appeals against the same order of CIT(A). 8. Dehors, the above observations, no useful purpose would be served by recalling the order dated 13.11.2020 in the appeals filed by the Revenue alone as the order passed by the Tribunal in the appeals by the asssessee would still be alive if not recalled. There is no application for recalling the order of Tribunal in the appeals by asssessee. Recalling the order of Tribunal dated 13.11.2020 vide which appeals of the Revenue were decided alone would not serve the desired purpose. Except for the fact that the cross appeals have been decided separately no other mistake apparent on record in the order of Tribunal dated 13.11.2020 has been pointed by the ld. DR. I find no merit in the applications of Revenue, hence, dismissed. 9. Consequently, all these three MAs filed by the Revenue are dismissed. Order pronounced in the open court on Friday, the 07 th day of January, 2022. Sd/- (VIKAS AWASTHY) ᭠याियक सद᭭य / JUDICIAL MEMBER मुंबई/Mumbai, ᳰदनांक/Dated: 07/01/2022 SK, Sr.PS ᮧितिलिप अᮕेिषतCopy of the Order forwarded to : 5 एम.ए.सं. 205 to 207/मुं/2021 (िन.व.2009-10 to 2011-12) M.A. NO.205 to 207/MUM/2021 (A.Y.2009-10 to 2011-12) 1. अपीलाथᱮ/The Appellant , 2. ᮧितवादी/ The Respondent. 3. आयकर आयुᲦ(अ)/ The CIT(A)- 4. आयकर आयुᲦ CIT 5. िवभागीय ᮧितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाडᭅ फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai