Sushee Infra Pvt. Ltd., V. Dy. CIT,C-3(2),Hyd.,

MA 225/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1393 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 26-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARITHA
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APLN. NO.225HYD/2013 (IN ITA NO.22/HYD/2013) : ASSESSMENT YEAR 2006 - 07 M/S. SUS HEE INFRA PRIVATE LTD., HYDERABAD ( PAN - AACCS 8560 Q) V/S. DY. COMMISSIONER OF INCOME - TAX CIRCLE 3(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.RAMA RAO RESPONDENT BY : SMT. HARITHA DR DATE OF HEARING 20.12.2013 DATE OF PRONOUNCEMENT 24.1.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE ACT, THE APPLICANT ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 23.8.2013 IN ITA NO.22/HYD/2013 FOR THE ASSESSMENT YEAR 2006 - 07, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD H AVE CREPT INTO THE SAME. 2. AT THE OUTSET, IT MAY BE NOTED THAT THOUGH ORIGINALLY AN ELABORATE APPLICATION RUNNING INTO OVER 15 PAGES, WHICH ALSO CONTAINS A TABULATION RUNNING INTO 10 PAGES, WHEREIN VARIOUS OBSERVATIONS/FINDINGS OF THE TRIBUNAL IN ITS ORDER, NUMBERING TO AS MANY AS 10, HAVE BEEN DISPUTED WITH THE EXPLANATION OF THE ASSESSEE IN RELATION THERETO, SUBSEQUENTLY THE ASSESSEE HAS FILED A REVISED APPLICATION, WHICH IS A PRECISE ONE, SEEKING RECALL OF THE ORDER OF THIS TRIBUNAL DATED 23.8.2013 . WE ACCORDINGLY , ACCEDING TO THE PRAYER OF THE ASSESSEE, PROCEED TO DISPOSE OF THIS APPLICATION, ON THE BASIS OF REVISED ONE FILED BY THE ASSESSEE. MA NO.22 5 /HYD2013 (IN ITA NO. 22 /HYD/201 3 ) M/S. SUSHEE INFRA PVT. LTD.,HYDERABAD 2 3. IT IS THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE COURSE OF HEARING ON THE APPEAL OF THE REVENUE, ITA NO.22/HYD/2013, AGAINST THE ACTION OF THE CIT(A) IN DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER S.271(1)(C) OF THE A C T, ASSESSEE HAS FILED WRITTEN SUBMISSIONS DATED 4.8.2013, AND ALSO PLACED RELIANCE ON THE FOLLOWING DECISIOSN - ( A ) CIT V/S. HARSHAVARDHAN CHEMICALS LTD. (259ITR 212) - RAJ. ( B ) NAVBHARAT ENTERPRISES PVT. LTYD. V/S. ACIT(309 ITR (AT)_ 79 ( C ) COMMISSIONER OF INCOME - TAX C/S. H.P. STATE FOREST CORPORATION LTD. (340ITR 240) - HP ( D ) RELIANCE PETRO PRODUCTS PVT. LTD. (322 ITR 158) - SC ( E ) CIT V/S. DHARAMPAL PREMCHAND LTD. (329 ITR 572).DEL. IT IS SUBMITTED THAT THOUGH THE ABOVE CASE - LAW HAS BEEN NOTED BY THE TRIBUNAL AT PARA 12 ON PA GE 6, T HE SAME WERE NOT CONSIDERED WHILE RENDERING THE ULTIMATE DECISION, SETTING ASIDE THE ORDER OF THE CIT(A) AND RESTORING THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE CONTRARY, SUPPORTING THE ORDER OF THE TRIBUNAL SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD. 5. WE HEARD BOTH SIDES AND PERUSED THE ORDER OF THE TRIBUNAL IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. THE GRIEVANCE OF THE ASSESSEE IN THIS APPLICATION IS THAT WHILE ADJU DICATING ON THE APPEAL OF THE REVENUE, THE TRIBUNAL HAS NOT CONSIDERED AND GIVEN ANY FINDINGS ON THE APPLICABILITY OF THE JUDGMENTS RELIED UPON BY THE ASSESSEE TO THE FACTS OF THE CASE. ACCORDING TO THE LEARNED COUNSEL, THE JUDGMENTS RELIED UPON BY THE L EARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING ON APPEAL ARE APPLICABLE TO THE FACTS OF THE CASE, AND THE TRIBUNAL SHOULD HAVE EITHER APPLIED THE RATIO OF THOSE DECISIONS TO THE FACTS OF THE PRESENT CASE, OR IT SHOULD HAVE DISTINGUISHED THE SAME ON DUE CONSIDERATION. MA NO.22 5 /HYD2013 (IN ITA NO. 22 /HYD/201 3 ) M/S. SUSHEE INFRA PVT. LTD.,HYDERABAD 3 NON - CONSIDERATION OF THOSE JUDGMENTS IS A MISTAKE APPARENT FROM RECORD. ADMITTEDLY, THE JUDGMENTS CITED BY THE ASSESSEES COUNSEL WERE MENTIONED BY THE TRIBUNAL IN ITS ORDER. HOWEVER, THE TRIBUNAL INADVERTENTLY HAS NOT GIVEN ANY FI NDINGS ON THE APPLICABILITY OF THOSE JUDGMENTS TO THE CASE OF THE ASSESSEE EITHER BY FOLLOWING THEM OR DISTINGUISHING THEM. IN OUR OPINION NON - CONSIDERATION OF THOSE JUDGMENTS IS A MISTAKE APPARENT FROM RECORD, AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE AND ALSO AS HELD BY THE GUJARAT COURT IN THE CASE OF DATTANI & CO. V/S ITO IN TAX APPEAL NOS.847 TO 849 OF 2013 DATED 21.10.2013, WHEREIN IT WAS HELD AT PARA 4 THAT WHENEVER ANY DECISION HAS BEEN RELIED UPON AND IS CITED BY THE ASSESSEE AND OR ANY PARTY, THE AUTHORITY/TRIBUNAL IS BOUND TO CONSIDER AND OR DEAL WITH THE SAME AND DECIDE THE APPLICABILITY OF THE SAID DECISION . IN TH A T CA S E THE TRIBUNAL DID NO T CONSIDER THE DECI SI ON RELIED UPON BY THE ASSESSEE, AND THE HONBLE HIGH COU R T SET ASIDE THE MAT T ER TO THE FILE O F THE TRIBUNAL. FURTHER, NON - CONSIDERATION OF THE JUDGMENT CITED OR NON - CONSIDERATION OF THE COORDINATE BENCH DECISION WAS MISTAKE APPARENT ON RECORD AS HELD IN THE FOLLOWING CASES - (A) MOHAN MEAKIN LTD. V/S. ITO (84 TTJ 1) (DEL) (B) HONDA SIEL POWER PRODUCTS LTD. V/S. CIT (295 ITR 466) - SC (C) GEHNA V/S. ITO (137 TTJ (JP) (UO) 17) (D) RAKESH RAMANI V/S. ITO (5 SOT 547) - MUM BEING SO, IN OUR CONSIDERED OPINION , NON - CONSIDERATION OF THE JU D GMENTS CITED BY THE ASSESSEE BEFORE THIS TRIBUNAL DURING APPEAL HEARING, IS MI S TAKE APPARENT FROM THE RECORD, AND HENCE THE MATTER WARRANTS RECONSIDERATION BY TH E TRIBUNAL. ACCOR D INGLY, IN THE INTER E S T S OF JU S TICE, WE RECALL OUR ORDER DATED 23.8.2013 AND DIRECT TH E R E GISTRY TO POST THE APPEAL OF THE R E VENUE FOR FRESH HEARING AND DISPOSAL IN REGULAR C OURS E. PRESENT APPLICATION OF THE ASSESSEE IS ACCORDINGLY ALLOWED. MA NO.22 5 /HYD2013 (IN ITA NO. 22 /HYD/201 3 ) M/S. SUSHEE INFRA PVT. LTD.,HYDERABAD 4 6 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 24 TH JANUARY, 2014 SD/ - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 24 TH JANUARY, 2014 COPY FORWARDED TO: 1. M/S. SUS HEE INFRA PRIVATE LTD., C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3 - 6 - 643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2 . DY. COMMISSIONER OF INCOME - TAX CIRCLE 3 ( 2 ), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) IV, HYDERABAD 4. COMMISSIONER OF INCOME - TAX III HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S