DCIT CEN CIR 33, V. AKASH FABRICS P. LTD,

MA 243/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1295 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: BHUMIKA VORA MANI JAIN
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI . . , , BEFORE SHRI B. R. MITTAL, JM AND SHRI SANJAY ARORA , AM ! ' . / MA NO. 243/MUM/2013 (ARISING OUT OF ITA NO.7288/MUM/2011) ( / ASSESSMENT YEAR: 2008-09) DY. CIT, CENTRAL CIRCLE-33, MUMBAI / VS. AKASH FABRICS PVT. LTD. RAGHUVANSHI MILL COMPOUND, SENAPATI BAPAT MARG, LOWER PAREL (W), MUMBAI-400 013 $ ./% ./PAN/GIR NO. AAACA 3967 F APPLICANT : RESPONDENT APPLICANT BY : SHRI SURENDRA KUMAR RESPONDENT BY : SHRI BHUMIKA VORA / MANI JAIN & ' ' ( ) / DATE OF HEARING : 13.12.2013 *+, ( ) / DATE OF PRONOUNCEMENT : 13.12.2013 - / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION MOVED BY THE REVEN UE FOLLOWING THE DISMISSAL IN LIMINE OF ITS CAPTIONED APPEAL BY THE TRIBUNAL VIDE ITS O RDER U/S.254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 19.02.2 013. 2.1 THE TRIBUNAL DISMISSED THE REVENUES APPEAL AS THE SAME WAS NOT MAINTAINABLE EX FACIE IN VIEW OF THE GROUNDS RAISED NOT ARISING OUT OF T HE ORDERS BY THE AUTHORITIES BELOW. 2 MA NO. 243/MUM/2013 (A.Y. 2008-09) DY. CIT VS. AKASH FABRICS PVT. LTD. THE APPEAL HAD BEEN FILED FOR ABOUT 1 YEARS PRIOR TO THE DATE OF ITS HEARING, AND EVEN LISTED FOR HEARING ON TWO OCCASIONS PRIOR THERETO. DESPITE THE SAME, THE DEFECT HAD NOT BEEN REMOVED, AND EVEN ON THE DATE OF HEARING, NO A DJOURNMENT APPLICATION STOOD MOVED, AND THE MATTER CAME TO LIGHT ONLY AT THE TIME OF HE ARING, AND THAT TOO AT THE INSTANCE OF THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL. SO, HOWEVER, A PROPER AUTHORIZATION, BEARING THE CORRECT GROUNDS, BEING O N FILE AND, FURTHER, THE GROUNDS ASSUMED INCLUDING ONE FOR LEAVE TO ADD NEW GROUND/S , THE REVENUE WAS ALLOWED LIBERTY TO PRESS FOR THE RESTORATION OF ITS APPEAL, IF SO DEEM ED FIT, ON PROPER GROUNDS. THE REVENUE HAS NOW MOVED A MISCELLANEOUS APPLICATION (M.A.), L ISTING THE RELEVANT GROUNDS IT PROPOSES TO ASSUME BEFORE THE TRIBUNAL, CLARIFYING THAT THERE HAD OCCURRED A MISTAKE IN THE RELEVANT FORM-36, AS WOULD BE APPARENT INASMUCH AS THE GROUNDS AS PER THE AUTHORIZATION BY THE COMPETENT AUTHORITY, I.E., THE OFFICE OF THE COMMISSIONER OF INCOME TAX, CENTRAL- 3, MUMBAI DATED 27.10.2011 (ON RECORD), BORE THE CO RRECT GROUNDS, I.E., ARISING OUT OF THE IMPUGNED ORDER, AND WHICH OUGHT TO HAVE BEEN STATED IN FORM NO.36. IT IS, ACCORDINGLY, PRAYED THAT ITS APPEAL BE RESTORED FOR BEING HEARD ON MERITS. 2.2 THE LD. AR, ON THE OTHER HAND, WOULD SUBMIT THA T, IN FACT, EVEN THE REVENUES MA, AS ORIGINALLY FILED WITH THE TRIBUNAL ON 05.07.2013 , BORE A MISTAKE INASMUCH AS ITS STATES OF THE RELEVANT GROUNDS, I.E., WHICH IT PROPOSES TO TAKE UP BEFORE THE TRIBUNAL, AS THE GROUNDS TAKEN BEFORE THE CIT(APPEALS). NO GROUNDS, IN FACT, HAD BEEN TAKEN BY THE REVENUE BEFORE THE LD. CIT(A), WHO HAD ONLY DECIDED THE ASSESSEES APPEAL IN ITS FAVOUR. IT IS ONLY SUBSEQUENTLY THAT THE REVENUE HAS RECTIF IED ITS MA. A CLEAR LACK OF APPLICATION THUS INFLICTS THE FILING OF THE INSTANT APPLICATION . IT IS THIS APPROACH OF THE REVENUE THAT HAD IN FACT LED THE TRIBUNAL IN THE FIRST INSTANCE TO NOT GRANT IT FURTHER TIME TO AMEND ITS GROUNDS OF APPEAL, BUT DISMISS ITS APPEAL. THE SAME CONTINUES TO OBTAIN EVEN SUBSEQUENTLY. THE TRIBUNAL IN THE CASE OF DY. CIT VS. DELUX POLYMERS PVT. LTD . (IN MA NO.55/MUM/2013 DATED 18.10.2013) HAS IN FACT UNDER SIMILAR CIRCUMSTANCES REJECTED THE REVENUES APPLICATION AND, FURTHER, LEVIED COST OF RS.1,000/-, TO BE PAID BY THE ASSESSING 3 MA NO. 243/MUM/2013 (A.Y. 2008-09) DY. CIT VS. AKASH FABRICS PVT. LTD. OFFICER (A.O.), PLACING A COPY OF THE SAID ORDER ON RECORD. THE FACTS BEING THE SAME, A SIMILAR VIEW WAS PRAYED FOR BEING ADOPTED IN THE IN STANT CASE AS WELL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. LACKADAISICAL ATTITUDE ON BEHALF OF THE REVENUE IS PATENT AND, IN FACT, NOT DISPUTED. HOWEVER, NOTWITHSTANDING THE SAME, WE FIND, ON A READING OF THE IMPUGNED ORDER, THAT THE REVENUES APPEAL WAS DISMISSED IN LIMINE AS NOT MAINTAINABLE WITH A LIBERTY TO PRESS FOR ITS RESTORATION BY CORRECTING THE DEFECT. AS SUCH, IN OUR CLEAR VIEW, THE REVENUE HAS A RIGHTFUL CLAIM FOR THE RESTORATION OF ITS APPEAL, I .E., IN TERMS OF THE SAID ORDER DISMISSING ITS APPEAL. HOWEVER, THE REVENUE HAS NOT FILED A FRESH FORM NO. 36, I.E., CONTAINING THE APPROPRIATE GROUNDS AS PER THE RELEVANT AUTHORIZATI ON. FURTHER, AS REGARDS THE ASSESSEES RELIANCE ON THE DECISION BY THE TRIBUNAL IN THE CAS E OF DELUX POLYMERS PVT. LTD. (SUPRA), THE SAME WOULD ONLY BE RELEVANT TO, LIKEWISE, IMPOS E A COST, WHICH WE DO IN VIEW OF A CAVALIER APPROACH IN THE MATTER, ALBEIT AT A TOKEN AMOUNT OF RS.500/- (FIVE HUNDRED ONLY), TO BE PAID BY THE A.O. CONCERNED. WE, ACCORDINGLY, DIRECT THE RESTORATION OF THE REVE NUES APPEAL ON THE AFORESAID TERMS, ALSO FIXING THE DATE OF HEARING OF THE APPEA L ON 27.01.2014 , BEFORE WHICH THE REVISED F / 36 SHALL BE CAUSED BY IT. NO SEPARATE NOTICE OF HEA RING SHALL BE SENT TO THE PARTIES; THE SAID DATE HAVING BEEN ANNOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE HEARING. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE REVENUES MISCELLANEOUS APPLI CATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 13, 2013 SD/- SD/- (B. R. MITTAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER & ' MUMBAI; .' DATED : 13.12.2013 .'../ ROSHANI , SR. PS 4 MA NO. 243/MUM/2013 (A.Y. 2008-09) DY. CIT VS. AKASH FABRICS PVT. LTD. ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / $0 / THE APPELLANT-APPLICANT 2. 1$0 / THE RESPONDENT 3. & 2 ( / ) / THE CIT(A) 4. & 2 / CIT CONCERNED 5. 56 1 '7! , / ) 7!, , & ' / DR, ITAT, MUMBAI 6. 689 :' / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI