Dr. Tej Prakash Singh, Sonebhadra V. ITO, Mirzapur

MA 23/ALLD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8523 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 01-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER M. A NO. 23/ALLD/2010 [ARISING OUT OF ITA NO.38/ALLD/2009] ASSESSMENT YEAR: 2003 - 04 DR. TEJ PRA K ASH SINGH BYE PASS ROAD, ROBERTSGANJ SONEBHADRA V. ITO RANGE 3(3), MIRZAPUR PAN: AUIPS0731L (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. PRAVEEN GODBOLE, C.A. RESPONDENT BY: SHRI. Y.P.SRIVASTAVA, D.R. DATE OF HEARING: 31.05.2012 DATE OF PRONOUN CEMENT: 01.06.2012 O R D E R PER S UNIL KUMAR YADAV : THIS MISCELLANEOUS APPLICATION PREFERRED BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL DATED 30.3.2010 IN ITA NO.38/ALLD/2009, WITH THE SUBMISSION THAT THE JUDGMENTS REFERRED TO BY THE ASS ESSEE WERE NOT CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL ON MERIT. THER E FORE, AN ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL IS CREPT THEREIN , WHICH CALLS FOR RECTIFICATION. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE ASSESSEE HAS FILED A BUNCH OF JUDGMENTS DURING THE COURSE OF HEARING OF THE APPEAL THROUGH ITS COVERING LETTER DATED 17.11.2009, BUT THE TRIBUNAL HAS NOT CONSIDERED ANY OF THE JUDGMENT WHILE : - 2 - : DISPOSING OF THE APPEAL ON MER IT. COPIES OF THE JUDGMENTS REFERRED TO BY THE ASSESSEE ARE AGAIN PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT THE TRIBUNAL VIDE ITS ORDER DATED 30.3.2010 HAS CONFIRMED THE REOPENING OF ASSESSMENT MADE ON THE BASIS OF DVOS R EPORT AND NOW THE LEGAL POSITION IS THAT THE ASSESSMENT CANNOT BE REOPENED ON THE BASIS OF DVOS REPORT AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF ACIT V. M/S DHARIYA CONSTRUCTION COMPANY, 328 ITR 515 (SC) . THE LD. COUNSEL FOR THE ASSESSEE FURTHER C ONTENDED THAT SINCE THE ORDER OF THE TRIBUNAL IS CONTRARY TO THE LEGAL PROPOSITION LAID DOWN BY THE HON'BLE APEX COURT, THE SAME DESERVES TO BE RECALLED. HE HAS ALSO PLACED RELIANCE UPON THE ORDER OF THE ALLAHABAD BENCH OF THE TRIBUNAL IN THE CASE OF ACIT V. M/S D. K. AGARWAL (HUF) IN ITA NO.277/ALLD/2010 IN WHICH THE TRIBUNAL FOLLOWING THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF ACIT V. M/S DHARIYA CONSTRUCTION COMPANY (SUPRA) , HAS CATEGORICALLY HELD THAT ON THE BASIS OF THE DVOS REPORT ASSESSM ENT CANNOT BE REOPENED. 3 . THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT NO MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL HAS BEEN POINTED OUT, T HEREFORE, NO RECTIFICATION IS CALLED FOR. 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE MISCELLANEOUS APPLICATION VIS - - VIS THE ORDER DATED 30.3.2010 OF THE TRIBUNAL ALONG WITH THE JUDGMENTS PLACED BEFORE THE TRIBUNAL FOR CONSIDERATION AT THE TIME OF HEARING OF THE APPEAL, WE FIND THAT THE COPIES OF THE JUDG MENTS PLACED BY THE ASSESSEE THROUGH COVERING LETTER DATED 17.11.2009 , THOUGH AVAILABLE ON RECORD , WERE NOT CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL. WE HAVE ALSO CAREFULLY PERUSED THE ORDER OF THE THIRD MEMBER OF THE TRIBUNAL IN THE CASE OF B. KARAMCHAND PIARELAL V. ITO [2005] 95 TTJ (ASR)(TM) 329 IN WHICH THE TRIBUNAL HAS HELD THAT NON - CONSIDERATION OF RELEVANT ARGUMENTS AND THE JUDGMENTS REFERRED TO ON BEHALF OF THE ASSESSEE AMOUNTS TO MISTAKE : - 3 - : APPARENT FROM THE ORDER OF THE TRIBUNAL AND IT WAS PROPER FOR THE TRIBUNAL TO RECALL ITS ORDER FOR CONSIDERATION OF THE ARGUMENTS AND JUDGMENTS WHICH HA VE ESCAPED CONSIDERATION WHILE PASSING THE ORIGINAL ORDER. MOREOVER, THE LEGAL POSITION WITH REGARD TO REOPENING OF THE ASSESSMENT HAS ALSO BEEN MA DE CLEAR BY THE HON'BLE APEX COURT THROUGH ITS JUDGMENT IN THE CASE OF ACIT V. M/S DHARIYA CONSTRUCTION COMPANY (SUPRA). THEREFORE, KEEPING IN VIEW THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT BY NOT CONSIDERING THE JUDGMEN TS PLACED BEFORE THE TRIBUNAL AND THE LEGAL POSITION , AN ERROR I S CREPT IN THE ORDER OF THE TRIBUNAL. WE, THEREFORE, RECALL THE ORDER OF THE TRIBUNAL DATED 30.3.2010 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING AFRESH IN THE DUE COURSE BY ISSUIN G NOTICE TO THE PARTIES. 5 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1.6.2012. SD/ - SD/ - [ S. V. MEHROTRA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1.6.2012 J J: 3105 COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR