M/s Abhishek Industries Ltd., Ludhiana V. ACIT, Ludhiana

MA 28/CHANDI/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8599 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-06-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 03-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Keywords: Opportunity of being heard; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI T.R. SOOD, ACCOUNTANT MEMBER MA NO. 28/CHD/2010 (IN ITA NO. 781/CHD/2006) ASSESSMENT YEAR: 1999-2000 M/S ABHISHEK INDUSTRIES LTD., VS THE ACIT, RANGE-1 , LUDHIANA LUDHIANA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR RESPONDENT BY : SHRI N.K. SAINI DATE OF HEARING : 06.07.2012 DATE OF PRONOUNCEMENT : 09.07.2012 ORDER PER H.L.KARWA, VP THIS MISC. APPLICATION PREFERRED BY THE ASSESSEE AR ISES OUT OF THE ORDER OF THE TRIBUNAL DATED 24.6.2009 PASSED IN ITA NO. 7 81/CHD/2006 RELATING TO ASSESSMENT YEAR 1999-2000. 2. THE ASSESSEE VIDE ITS APPLICATION DATED 31.10.20 09 HAS STATED AS UNDER:- BEFORE THE INCOME-TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH 2 SUB:_ MISC APPLICATION U/S 254(2) IN ITA NO. 781/CH ANDI/2006 FOR ASSESSMENT YEAR 1999-2000 IN THE CASE OF M/S ABHISHEK INDUSTRIES LTD. LUDHIANA SIR, RESPECTFULLY THE FOLLOWING IS SUBMITTED FOR YOUR HO NOURS KIND CONSIDERATION AND NECESSARY PERUSAL:- THAT THE ABOVE CAPTIONED APPEAL WAS ADJUDICATED UPO N BY THE HON'BLE BENCH VIDE ORDER DATED 31.7.2007. THAT THE PETITIONER FILED A MISC. APPLICATION AGAIN ST THE SAID ORDER DATED 29.04.2008 ON 25.06.2008 THAT VIDE ORDER PASSED IN RESPONSE TO THE MISC. APP LICATION, THE EARLIER ORDER PASSED WAS RECALLED BY THE HON'BLE BE NCH. THAT DURING THE COURSE OF HEARING AND EVEN VIDE THE EARLIER MISC. APPLICATION, IT WAS SUBMITTED THAT ALTHOUGH THE ISS UE INVOLVED IN THE APPEAL IS COVERED AGAINST THE ASSESSEE, THE REQ UEST FOR APPLICABILITY OF PROVISIONS OF SECTION 158A BE KIND LY CONSIDERED AND A SPECIFIC REQUEST WAS ALSO MADE DURING HE COUR SE OF HEARING OF THE APPEAL. THAT DUE TO SOME INADVERTENT ERROR THE SAME SEEMS T O HAVE SKIPPED THE NOTICE OF THE HON'BLE BENCH. IT IS HUMBLY PRAYED THAT THE ORDER DATED 24.6.2009 PASSED BY HON'BLE BENCH BE KINDLY RECALLED AND REQUEST FOR CO NSIDERATION OF APPLICABILITY OF PROVISIONS US/ 158A BE KINDLY CONS IDERED. THANKING YOU, YOURS FAITHFULLY, FOR ABHISHEK INDUSTRIES LTD. SD/- DATED 31.10.2009 AUTHORIZED SIGNATORY 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AT LENGTH AND HAVE ALSO CAREFULLY GONE THROUGH THE CONTENTS OF TH E ABOVE MISC. APPLICATION. IT IS OBSERVED THAT THE APPEAL OF THE ASSESSEE I.E. ITA NO.781/CHD/2006 FOR ASSESSMENT YEAR 1999-2000 WAS ADJUDICATED UPON BY I TAT, CHANDIGARH 3 BENCH VIDE ITS ORDER DATED 31.7.2007 EX. PARTE. T HE ASSESSEE VIDE MISC. APPLICATION NO. 189/CHD/2008 DATED 24.6.2008 REQUES TED THE TRIBUNAL TO RECALL ITS ORDER DATED 31.07.2007 AND PRAYED FOR OP PORTUNITY OF FRESH HEARING BE AFFORDED TO THE ASSESSEE. IN THE ABOVE APPLICA TION, THE ASSESSEE SUBMITTED THAT ON MERITS, THE ISSUE INVOLVED IN THE APPEAL IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE PUNJAB & HARYA NA HIGH COURT IN THE CASE OF ABHISHEK INDUSTRIES LTD 286 ITR 1(P&H). HO WEVER, THE ASSESSEE SUBMITTED THAT APPLICABILITY OF PROVISIONS OF SECTI ON 158A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') MAY BE CONSIDERED IN THE FACTS AND CIRCUMSTANCES OF THIS CASE. THE TRIBUNAL DECIDED T HE APPEAL OF THE ASSESSEE ON 24.6.2009 STATING THAT SALES TAX SUBSIDY AMOUNTI NG TO RS. 2,50,59,653/- IS A REVENUE RECEIPT FOLLOWING THE JUDGMENT OF JURISDI CTIONAL HIGH COURT IN THE CASE OF ASSESSEE ITSELF REPORTED IN (2006) 286 ITR 1(P&H). HOWEVER, THE TRIBUNAL INADVERTENTLY DID NOT TAKE INTO CONSIDERAT ION THE DECLARATION FILED BY THE ASSESSEE U/S 158A(1) OF THE ACT CLAIMING THAT I DENTICAL QUESTION OF LAW IS PENDING BEFORE THE HON'BLE SUPREME COURT. THE TRI BUNAL HAS ALSO NOT CONSIDERED THE NO OBJECTION CERTIFICATE SUBMITTED B Y THE ASSESSING OFFICER AS PER THE REQUIREMENTS OF SECTION 158A OF THE ACT. 4. IN OUR VIEW, THE MISTAKE POINTED OUT BY THE ASSE SSEE IN THE ORDER OF THE TRIBUNAL DATED 24.6.2009 IS A MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED LAW THAT WHEN PREJUDICE RESULTING FROM AN O RDER IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, IT IS ITS BO UNDEN DUTY TO SET IT RIGHT. SHRI ASHWANI KUMAR, LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S ABHISHEK INDUSTRIES LTD (SUPRA) STILL SUBSISTS BUT THE SPECIAL LEAVE PETITION 4 (SLP) IS PENDING BEFORE THE HON'BLE SUPREME COURT I NVOLVING IDENTICAL QUESTION OF LAW AS IS IN THE PRESENT CASE. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS FILED A DECLARATION U/S 158A(1) OF THE ACT, AGREEING TO APPLY IN THE INSTANT CASE, FINAL DECISION ON THE IMPUGNED QU ESTION OF LAW TO BE LAID DOWN BY THE HON'BLE SUPREME COURT. THERE IS NO OBJ ECTION BY THE ASSESSING OFFICER TO THE REQUEST MADE BY THE ASSESSEE. WE OB SERVE THAT THE QUESTION OF LAW ARISING IN THE INSTANT CASE IS IDENTICAL TO THE QUESTION RAISED IN THE SLP FILED BEFORE THE HON'BLE SUPREME COURT ARISING FROM THE ORDER OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S ABHI SHEK INDUSTRIES LTD (SUPRA). THEREFORE, WE HOLD THAT THE DECISION ON T HE QUESTION OF LAW IN THE CASE OF ABHISHEK INDUSTRIES LTD (SUPRA) WHEN BECOME S FINAL, IT SHALL BE APPLIED TO THE INSTANT CASE AND THE ASSESSING OFFIC ER SHALL, IF NECESSARY, AMEND THE ORDER IN ACCORDANCE WITH LAW AFTER AFFORD ING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE OBSERVATIONS MADE IN PARA 4 ABOVE MAY BE READ A S A PART OF ORDER DATED 24.6.2009 PASSED IN ITA NO. 781/CHD/2006. 5. IN THE ABOVE TERMS, T HE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 9 TH DAY OF JULY, 2012 SD/- SD/- (T.R.SOOD ) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 9 TH JULY, 2012 RKK 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5 THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR