ITO, WARD- 1(3), RAIPUR (CG) V. SHRI KEDAR AGARWAL, RAIPUR (CG)

MA 3/RPR/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3412 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-07-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-06-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR (Through Virtual Court) BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER M.A. No. 03/RPR/2018 (Arising out of ITA No. 117/RPR/2014) Ǔनधा[रण वष[ / Assessment Year : 2005-06 The Income Tax Officer, Ward-3(1), Raipur (C.G.) ........... आवेदक/Applicant बनाम / V/s. Shri Kedar Agarwal Paraswani, Hirmi, Raipur (C.G.) PAN : ACIPA4396H .......Ĥ×यथȸ / Respondent Assessee by : Shri R.B Doshi, AR Revenue by : Shri G.N Singh, DR स ु नवाई कȧ तारȣख / Date of Hearing : 03.06.2022 घोषणा कȧ तारȣख / Date of Pronouncement : 26.07.2022 2 The Income Tax Officer, Ward-1(3) Vs. Shri Kedar Agarwal MA No.03/RPR/2018 आदेश / ORDER PER RAVISH SOOD, JM: The present Miscellaneous Application filed by the revenue on 26.06.2018 arises from the order passed by the Tribunal while disposing off the Revenue’s appeal for the assessment year 2005-06 vide its order passed in ITA No.117/RPR/2014, dated 02.02.2018. 2. As is discernible from the miscellaneous application, the grievance of the revenue is that the Tribunal while disposing off its appeal vide order passed in ITA No.117/RPR/2014, dated 02.02.2018, had failed to consider the judgment of the Hon'ble High Court of Bombay in the case of Sanjay Bimalchand Jain, Nagpur in I.T.A. No.18/2017, dated 10.04.2017, despite the fact that the same was specifically relied upon by the ld. Departmental Representative (“DR”, for short) in the course of hearing of the appeal. 3. Before us, it is the claim of the department that the Tribunal at Page 11 - Para 11 and Page 77 – Para 44 of its impugned order, while observing that the “Ld. DR has relied on the order of AO” and “the DR supported the order of AO...”, had failed to consider its paper book running into 27 pages that was filed before it. It is the claim of the ld. DR that the fact that the scrips in question were banned by SEBI and the order of the Hon’ble Bombay High Court in the case of Sanjay Bimalchand Jain vs. Pr. CIT-1, Nagpur & Anr. in ITA No.18/2007, dated 3 The Income Tax Officer, Ward-1(3) Vs. Shri Kedar Agarwal MA No.03/RPR/2018 10.04.2017 that was specifically relied upon by the ld. DR in the course of the proceedings before the Tribunal had not been considered while dismissing the appeal of the Revenue. 4. The Ld. Authorized Representative (for short ‘AR’) of the assessee fairly conceded to the submissions put forth by the Ld. DR and submitted, that though the Revenue in the course of the hearing of the appeal before the Tribunal had referred to and relied upon the judgment of the Hon’ble High Court of Bombay in the case of Sanjay Bimalchand Jain Vs. PR. CIT-1, Nagpur & Anr. in ITA No.18/2007, dated 10.04.2017 but the same had not been considered while disposing off the appeal. Ld. AR at the same time tried to distinguish the facts involved in the case of the present assessee before us as against those that were involved in the case of Sanjay Bmalchand Jain (supra). 5. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as perused the order passed by the Tribunal while disposing off the revenue’s appeal in ITA No.117/RPR/2014, dated 02.02.2018. 6. After having given a thoughtful consideration, we find that admittedly the ld. DR had though in the course of hearing of the appeal before the Tribunal relied upon the judgment of the Hon’ble High Court of Bombay in the case of Sanjay Bimalchand Jain Vs. Pr. CIT-1, Nagpur & Anr. in ITA No.18/2007, dated 4 The Income Tax Officer, Ward-1(3) Vs. Shri Kedar Agarwal MA No.03/RPR/2018 10.04.2017 (Page 10-13 of the departments paper book), however, the same had not been considered while disposing off the appeal vide its order passed in ITA No. 117/RPR/2014, dated 02.02.2018. Non-consideration of a judicial pronouncement relied upon either by the appellant or respondent before the Tribunal falls within the realm of a mistake apparent from record under sub- section (2) of Sec. 254 of the Act. Considering the facts involved in the present case, as the Tribunal while disposing off the appeal of the revenue vide its order passed in ITA No. 117/RPR/2014, dated 02.02.2018 had failed to consider the judgment of the Hon’ble High Court of Bombay in the case of Sanjay Bimalchand Jain Vs. Pr. CIT-1, Nagpur & Anr. in ITA No.18/2007, dated 10.04.2017 that was undeniably relied upon by the appellant revenue in the course of the appellate proceedings, therefore, the same would clearly fall within the scope and gamut of a mistake which is glaring, apparent, patent and obvious from record within the meaning of sub-section (2) of Sec. 254 of the Act. We, thus, in terms of our aforesaid observations recall the order passed by the Tribunal in ITA No.117/RPR/2014, dated 02.02.2018 for the limited purpose of considering the judgment of the Hon’ble High Court of Bombay in the case of Sanjay Bimalchand Jain vs. Pr. CIT-1, Nagpur & Anr. in ITA No.18/2007 dated 10.04.2017. 7. The Registry is directed to list the appeal for hearing for the aforesaid limited purpose in the normal course after issuing fresh notice of hearing of the appeal to both the parties. 5 The Income Tax Officer, Ward-1(3) Vs. Shri Kedar Agarwal MA No.03/RPR/2018 8. In the result, Miscellaneous Application filed by the Revenue is allowed in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board. Sd/- Sd/- RATHOD KAMLESH JAYANTBHAI RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 26 th July, 2022 **SB आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals), Raipur (C.G) 4. The CIT(A), Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur. 6 The Income Tax Officer, Ward-1(3) Vs. Shri Kedar Agarwal MA No.03/RPR/2018 1 Draft dictated on 03.06.2022 Sr.PS/PS 2 Draft placed before author 03.06.2022 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order