ITO 5(1)(3), V. CASH HOW INVESTMENT (I) P.LTD,

MA 279/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2373 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LOVE KUMAR
• Keywords: Rectification of order

Judgement Text

INCOME TAX APPELLATE TRIBUNAL ,MUMBAI - C BENCH . . , , BEFORE S/SH. I.P. BANSAL, JUDICIAL ME MBER & SHRI RAJENDRA,ACCOUNTANT MEMBER MA NO.279/MUM/2014-ARISING OUT OF ITA NO.4146/MU M/2012-ASSESSMENT YEAR 2005-06 ITO 5(1)(3), R.NO. 569 & 525, 5TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 VS. M/S CASH FLOW INVESTMENT (I) PVT. LTD., 132, CUMBALLA HILL ROAD, KEMP'S CORNER, MUMBAI-400036 PAN:AAACC2641M ( / APPELLANT) ( / RESPONDENT) REVENUE BY : SHRI LOVE KUMAR APPELLANT BY : NONE ! ' / DATE OF HEARING : 26-09-2014 #$%& ! ' / DATE OF PRONOUNCEMENT : 26-09-2014 ' / O R D E R PER RAJENDRA, A.M. : VIDE ITS MISCELLANEOUS APPLICATION (MA),FILED U/S. 254(2) OF THE ACT ON 09.05.2014 THE ASSESSING OFFICER (AO) HAS STATED THAT M.A. WAS ARISING OUT O F THE TRIBUNAL'S ORDER DATED 11.07.2013 (ITA/ 4146/2012),THAT TRIBUNAL HAD DISPOSED THE ISSUE ON LEVIED OF PENALTY U/S 271(1)(C) OF THE ACT IN FAVOUR OF THE ASSESSEE, THAT DEPARTMENT HAD FILED ( M.A. NO. 319/MUM/2013) AND HAD REQUESTED TO RECTIFY THE ORDER DATED 11.07.2013 DELIVERED BY THE TRIBUNAL, THAT M.A. WAS DISMISSED BY THE TRIBUNAL ON 21.02.2014, THAT AO HAD PASSED THE PENA LTY ORDER AFTER THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO HIM, THAT THERE WAS MISTAKE APPA RENT ON RECORD, THAT SAME SHOULD BE RECTIFIED. BEFORE US,DEPARTMENTAL REPRESENTATIVE(DR) MADE THE SAME SUBMISSIONS WHICH ARE PART OF THE M.A.FILED BY THE AO.AR SUPPORTED THE ORDER OF THE T RIBUNAL. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE PASSING THE ORDER ON 11.07.2013, THE TRIBUNAL HAD N ARRATED THE FACTS OF THE CASE.AT PARAGRAPH 2, IT WAS SPECIFICALLY MENTIONED BY THE TRIBUNAL THAT THE LEARNED DR HAD NOT DISPUTED THE FACTS MENTIONED BY THE TRIBUNAL. WE FIND THAT WHILE DECID ING THE QUANTUM APPEAL TRIBUNAL HAD REMITTED BACK THE MATTER TO THE FILE OF THE AO AND THE TRIBU NAL HAD WHILE DECIDING THE PENALTY APPEAL TAKEN A DECISION AFTER CONSIDERING THE RELEVANT FACTORS. IN OUR OPINION ONCE A M.A. HAS BEEN DISPOSED OF PARTIES ARE NOT ALLOWED TO FILE FURTHER M.A.,INVOKI NG THE PROVISIONS OF SECTION 254(2). AS PER THE SCHEME OF THE ACT ORDERS PASSED U/S 254(1) OF THE A CT COULD BE RECTIFIED BY THE TRIBUNAL U/S. 254(2) OF THE ACT. BUT THERE IS NO PROVISIONS FOR R ECTIFYING THE ORDER PASSED WITH REGARD TO M.A. IN THE MATTER OF AISWARYA TRADING CO.HONBLE KERALA HI GH COURT HAS,WHILE DECIDING THE ISSUE OF RECTIFICATION OF RECTIFICATION ORDER,HELD AS UNDER: ONCE THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS CONSIDERED AND DECIDED BY THE TRIBUNAL RIGHTLY OR WRONGLY, ANOTHER RECTIFICATION APPLICATION ON THE SAME ISSUE IS NOT MAINTAINABLE AGAINST THE ORDER ISSUED BY THE TRIBUN AL UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961. THE SECOND RECTIFICATION APPLICATION BY EITHE R PARTY IS MAINTAINABLE ONLY ON ISSUES NOT DECIDED BY THE TRIBUNAL IN ANY OTHER RECTIFICATION APPLICATION FILED BY EITHER OF THE PARTIES. THE APPELLATE ORDER ISSUED UNDER SECTION 254(1) GETS ME RGED IN RECTIFICATION ORDERS ONLY ON THE ISSUES 2 M.A.NO.279/MUM/2014 M/S CASH FLOW INVESTMENT (I) PV T. LTD. RAISED IN THE RECTIFICATION APPLICATION AND ON ALL OTHER ISSUES DECIDED BY THE TRIBUNAL IN THE APPEAL, THE APPELLATE ORDER UNDER SECTION 254(1) SU RVIVES AND IS AVAILABLE FOR RECTIFICATION AGAIN ON ANY OTHER ISSUE ON AN APPLICATION FILED BY EITHE R OF THE PARTIES.(331 ITR 521) RESPECTFULLY,FOLLOWING THE ABOVE JUDGMENT AND THE F ACTS OF THE CASE WE REJECT THE APPLICATION FILED BY THE AO. AS A RESULT,MISCELLANEOUS APPLICA TION FILED BY THE AO STANDS DISMISSED. (& )!* (& )!* (& )!* (& )!* , (! , (! , (! , (! VF/KDKJH VF/KDKJH VF/KDKJH VF/KDKJH - - - - . . . . / / / / 0 0 0 0 1 11 11, 1,1, 1, 2 22 2 3! 3! 3! 3! / / / / ! ! ! ! 45 4545 45 . ORDER PRONOUNCED IN THE OPEN COURT ON 26TH,SEPTEMBER,2014. ' #$%& )6 / 26 FLRACJ FLRACJ FLRACJ FLRACJ 201 4 $ 0 : SD/- SD/- ( . . / I.P.BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) / MUMBAI, / /DATE: 26.09.2014 SK ' ' ' ' ! 1 ! 1 ! 1 ! 1 ;1%! ;1%! ;1%! ;1%! / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ < = , 4. THE CONCERNED CIT / < = 5. DR C BENCH, ITAT, MUMBAI / 1> 0 !, LH LHLH LH ?@ , . . . ) 6. GUARD FILE/ 0 ? A 1! ! //TRUE COPY// ' / BY ORDER, B / 4 DY./ASST. REGISTRAR ,& , ) /ITAT, MUMBAI