Sh. Mahesh Chand Goyal Prop., Jammu V. The Additional Commissioner of Income Tax, Jammu

MA 22/ASR/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9661 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Keywords: Capital receipt
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.22(ASR)/2010 (ARISING OUT OF I.T.A. NO.432(ASR)/2009) ASSESSMENT YEAR:2005-06 PAN : SHRI MAHESH CHAND GOYAL VS. THE ADDL. CIT, JAMMU. RANGE-1, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. ASHOK GUPTA, CA RESPONDENT BY:SH. R.L. CHHANALIA, DR DATE OF HEARING: 28/12/2012 DATE OF PRONOUNCEMENT:28/12/2012 ORDER PER BENCH ; THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION WHICH ARISES FROM THE ORDER OF THE TRIBUNAL DATED 18.12.2 009 PASSED IN ITA NO.432(ASR)/2009. THE ASSESSEE HAS FILED WRITTEN S UBMISSIONS, THE CONTENTS OF THE SAME ARE AS UNDER: A MISCELLANEOUS APPLICATIOPN IN THE ABOVE CASE AGA INST THE TRIBUNALS ORDER DATED 18.12.2009 WAS FILED ON 02.0 3.2010 SEEKING RECALL OF THE ORDER ON THE GROUND THAT NO REASONABL E OR EFFECTIVE OPPORTUNITY OF HEARING WAS PROVIDED TO ASSESSEE BY THE TRIBUNAL BEFORE PASSING THE SAID ORDER. MA NO.22(ASR)/2010 2 2. IN THE INTERREGNUM, THE APPEAL FILED U/S 260(A) OF THE I.T. ACT, 1961 AGAISNT THE TRIBUNALS ORDER CAME TO BE HEARD BY THE HONBLE HIGH COURT OF JAMMU & KASHMIR. 3. FINALLY ON 31.01.2011, THE HONBLE HIGH COURT, I N A BATCH MATTER, DECIDED THE APPEAL ITSELF U/S 260A OF THE A CT. WHILE SO DOING THE ORDER OF THE TRIBUNAL WAS REVERSED BY THE HIGH COURT. 4. IN THE CIRCUMSTANCES, THE ORDER OF THE TRIBUNAL NOW STANDS MERGED IN THE ORDER OF THE HIGH COURT AS SUCH AND T HE TRIBUNAL CANNOT INTERFERE IN THIS CASE OR CONSIDERING ANY RELIEF, W E REQUEST YOU TO KINDLY SET-ASIDE THE ORDER PASSED BY YOUR GOODSELF. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE HONBLE HIGH COURT OF JAMMU & KASHMIR HAS SET ASIDE THE ORDER OF THIS BENCH VIDE ORDER DATED 31.01.2011 AND DIRECTED THIS BENCH TO PASS A CONSEQUENTIAL ORDER IN ACCORDANCE WITH LAW IN VIEW OF THE FINDINGS RECORDED IN ITS ORDER DATED 31.01.2011. HE HAS ALSO PRODUCED PHOTOCOPY OF THE SAID ORDER OF THE HONBLE HIGH COURT, DATED 31.01.2011 AND STATED THAT THE HONBLE HIGH COURT OF JAMMU & KASHMIR IN A BATCH D ECIDED MANY APPEALS WHICH INCLUDES THE APPEAL OF THE ASSESSEE AND DECID ED THE ISSUE IN DISPUTE IN FAVOUR OF THE ASSESSEE BY DECLARING EXCISE DUTY RE FUND AS CAPITAL RECEIPT. HE FURTHER REQUESTED THAT THE APPLICATION FILED BY THE ASSESSEE MAY BE ALLOWED AND THE ORDER PASSED BY THIS BENCH IN ITA NO.432(AS R)/2009 DATED 18.12.2009 MAY BE CANCELLED AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE AS DIRECTED BY THE HONBLE JURISDICTIONAL HIGH COUR T OF J & K. 3. ON THE CONTRARY, THE LD. DR AGREED WITH THE ARGU MENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. MA NO.22(ASR)/2010 3 4. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED TH E SUBMISSIONS MADE. WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE I N DISPUTE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS VS. C IT & ANOTHER (SUPRA). THUS, IT IS A FIT CASE FOR RECALL OF THE ORDER OF T HE TRIBUNAL DATED 18.12.2008 ACCORDINGLY, WE RECALL THE AFORESAID ORDER OF THE TRIBUNAL AND FIX THE CASE FOR HEARING ON 28.12.2012. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, M.A. NO.22(ASR)/2010 OF THE ASSES SEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH DECEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH DECEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.MAHESH CHAND GOYAL, JAMMU. 2. THE ADDL. CIT, R-1, JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER