M/s. A.K. Capital Market Ltd., New Delhi V. DCIT, New Delhi

MA 28/DEL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9331 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AROOP KUMAR SINGH
• Assessee Lawyers: MRS RANO JAIN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER M.A NOS.28 & 29/DEL/2012 (ITA NOS.3767 & 4097/D/2010) ASSESSMENT YEARS : 2006-07 & 2008-09 A.K. CAPITAL MARKETS LTD., FLAT NO..N, SAGAR APARTMENTS, 6,TILAK MARG, NEW DELHI. PAN : AADCA9960D VS. DCIT, CENTRAL CIRCLE-20, NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI VED JAIN & MRS. RANO JAIN RESPONDENT BY : SHRI AROOP KUMAR SINGH, SR. DR O R D E R PER A.D. JAIN, JUDICIAL MEMBER: VIDE THE MISCELLANEOUS APPLICATIONS FILED AS ABOVE , THE ASSESSEE SEEKS THE RECALL OF THE EX PARTE ORDER, DATED 14.10.2011, PASSED BY THE TRIBUNAL IN ITA NOS.3767 & 4097/DEL/2010, ON THE GROUND THAT THERE ARE MISTAKES APPARENT ON RECORD IN THE ORDER. THE ASSESSEE ALSO SEEKS THE R E-FIXATION OF THE APPEALS FOR FRESH HEARING ON MERITS. 2. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE APPLICANT THAT THE ABOVE TWO APPEALS IN THE CASE OF THE RESPO NDENT-ASSESSEE WERE FIXED FOR HEARING ON THE 5 TH OCTOBER, 2011 ALONG WITH THE FOLLOWING SEVENTEEN A PPEALS RELATING TO THE SAME GROUP:- MA NOS.28 & 29/DEL/2012 2 (1) DCIT VS. A.K. MITTAL IN ITA NOS.2733 TO 2737/DE L/2010 FOR ASSESSMENT YEARS 2002-03, 2005-06 TO 2008-09. (2) DCIT VS. A.K. SERVICES LTD. IN ITA NOS.3683 TO 3687/DEL/2010 FOR ASSESSMENT YEARS 2002-03 AND 2005-06 TO 2008-09 . (3) DCIT VS. A.K. CAPITAL SERVICES LTD. IN ITA NOS. 3274 TO 3280/DEL/2010 FOR ASSESSMENT YEARS 2002-03 TO 2008- 09.; THAT THE APPEALS PREFERRED BY THE REVENUE IN RESPEC T OF THE APPLICANT ASSESSEE IN ITA NOS.3767 & 4097/DEL/2010 WERE DISPOSED OF BY TH E TRIBUNAL ALONG WITH THE ABOVE SEVENTEEN APPEALS VIDE CONSOLIDATED ORDER DAT ED 14.10.2011; THAT THE TRIBUNAL VIDE ITS CONSOLIDATED ORDER DATED 14.10.20 11, THE APPEALS WERE REMANDED BACK TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION; THAT THE ABOVE DIRECTION, WHILE REMANDING THE APPEALS BACK TO THE CIT (A), WAS GIVEN BY THE TRIBUNAL WHILE ALLOWING THE PRELIMINARY OBJECTION R AISED BY THE REVENUE THAT THE APPEALS WERE DECIDED BY THE CIT (A) WITHOUT AFFORDI NG OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER, DESPITE THE FACT THAT THE ASSESSING OFFICER HAD SPECIFICALLY REQUESTED FOR SUCH OPPORTUNITY OF BEIN G HEARD; THAT THE PRELIMINARY OBJECTION OF DENIAL OF OPPORTUNITY OF BEING HEARD W AS RAISED ONLY IN RESPECT OF THE SEVENTEEN GROUP CASES AND NOT IN RESPECT OF THE APP EALS PREFERRED BY THE REVENUE IN ITA NOS.3767 & 4097/DEL/2010; THAT THE F ACTS COULD BE VERIFIED FROM THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN FORM NO.36 BEFORE THE TRIBUNAL; THAT ON THE DATE OF HEARING, I.E., ON THE 5 TH OCTOBER, 2011, EVEN THOUGH THE CASES OF THE APPLICANT ASSESSEE AND ALSO ANOTHER MATTER I N THE CASE OF SHRI ABHINAV MITTAL IN ITA NO.4460/DEL/2010 FOR ASSESSMENT YEAR 2006-07 WERE ALSO LISTED FOR HEARING BEFORE THE TRIBUNAL, THE APPEALS RELATING T O THE APPLICANT ASSESSEE AND SHRI ABHINAV MITTAL WERE NOT HEARD BY THE HONBLE B ENCH AND BOTH THE MATTERS WERE ADJOURNED TO 14 TH FEBRUARY, 2012; THAT THE SPECIAL COUNSEL WAS APPOI NTED ONLY TO ARGUE THE CASES OF SHRI A.K. MITTAL, M/S A. K. SERVICES LTD. AND M/S A.K. CAPITAL SERVICES LTD. AND NOT TO ARGUE THE CASES OF THE APPLICANT HEREIN; THAT THUS, THE SEVENTEEN GROUP APPEALS WERE HEARD AND CO NCLUDED BY THE TRIBUNAL AND THE APPEALS OF THE APPLICANT HEREIN ALONG WITH THE APPEAL IN THE CASE OF SHRI MA NOS.28 & 29/DEL/2012 3 ABHINAV GUPTA WERE ADJOURNED FOR FRESH HEARING ON 1 4 TH FEBRUARY, 2012; THAT THE BENCH, IT APPEARED, INADVERTENTLY, PROCEEDED TO INC LUDE THE CASES OF THE APPLICANT IN THE CONSOLIDATED ORDER DATED 14 TH OCTOBER, 2011 EVEN THOUGH THE APPEALS RELATING TO THE APPLICANT WERE NOT HEARD AN D WERE, IN FACT, ADJOURNED TO 14 TH FEBRUARY, 2012; THAT THE AFORESAID FACT IS ALSO E VIDENT FROM THE FIRST LINE OF THE ORDER, WHICH READ: THESE ARE DEPARTMENTS APPE ALS FOR A.Y.S 2002-03 TO 2008-09 IN THE CASE OF THREE ASSESSEES ( EMPHASIS SUPPLIED ); THAT THREE ASSESSEES REFERRED TO HEREINABOVE ARE THE THR EE GROUP CASES MENTIONED ABOVE; THAT IN VIEW OF THE ABOVE SUBMISSIONS, THE I NCLUSION OF THE TWO APPEALS RELATING TO THE APPLICANT ASSESSEE IN THE CONSOLIDA TED ORDER DATED 14 TH OCTOBER, 2011 PASSED IN RESPECT OF THE GROUP APPEALS WITHOUT ANY HEARING CONSTITUTES A MISTAKE APPARENT ON RECORD; AND THAT THEREFORE, THE TWO APPEALS PREFERRED BY THE REVENUE IN RELATION TO THE APPLICANT ASSESSEE MAY B E RECALLED AND RE-FIXED FOR HEARING ON MERITS. 3. THE LD. DR COULD NOT DISPUTE THAT THE APPEALS IN RESPECT OF THE APPLICANT ASSESSEE HEREIN WERE INCLUDED IN THE CONSOLIDATED O RDER DATED 14 TH OCTOBER, 2011 INSTEAD OF ADJUDICATING ON THE ADJOURNED DATE OF HEARING I.E., ON 14 TH FEBRUARY, 2012 ALONG WITH THE APPEAL IN RESPECT OF SHRI ABHINAV MITTAL INADVERTENTLY, AND WHICH CONSTITUTES A MISTAKE APPA RENT ON RECORD. 4. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD. WE FIND THAT THERE IS FORCE IN THE CONTENTION OF THE A PPLICANT THAT THE APPEALS OF THE APPLICANT WERE INCLUDED IN THE CONSOLIDATED ORDER D ATED 14 TH OCTOBER, 2011 INADVERTENTLY, AND WHICH CONSTITUTES A MISTAKE APPA RENT ON RECORD. WE HAVE ALSO VERIFIED FROM THE APPEAL FILES THAT THE PRELIMINARY GROUND OF OPPORTUNITY OF HEARING NOT GIVEN WAS NOT TAKEN BY THE REVENUE BEFORE THE T RIBUNAL IN THE ABOVE CASES. THEREFORE, WE RECALL THE TRIBUNAL ORDER TO THE EXTE NT IT INCLUDES ITA NOS. 3767 & 4097/DEL/2010. THE REGISTRY IS REQUESTED TO POST T HE APPEALS FOR HEARING IN DUE COURSE UNDER NOTICE TO THE PARTIES. MA NOS.28 & 29/DEL/2012 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE ALLOWED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12.1 0.2012. SD/- SD/- [G.D. AGRAWAL] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 12.10.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR, ITAT, DELHI BENCHESZ