SARDAR MADAN SINGH BHARARA, V. JTCIT RG 8(1),

MA 303/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5458 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJOO GAR O DIA
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Rectification of order; Additional evidence; Assessment record

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 303/MUM/2016 IN ITA NO.1658/MUM/2011 A Y : 2007-08 SARDAR MADAN SINGH BHARARA, SANTOSH NIWAS, PHIROZ SHAH MEHTA ROAD, SANTACRUZ(W), MUMBAI-4000054 PAN: AABPB9330N VS. JOINT COMMISSIONER OF INCOME- TAX RANGE-8(1), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIPUL J. SHA H (AR) REVENUE BY : MS. ARJOO GARODIA (DR) DATE OF HEARING : 03.03.2017 DATE OF ORDER : 17.03.2017 ORDER PER PAWAN SINGH, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY THE ASSESSEE FOR RECTIFICATION OF MISTAKE IN ORDER DATED 31.05.2016. IN THE M.A, THE APPLICAN T/ASSESSEE INTERALIA PLEADED THAT DURING THE COURSE OF HEARING, THE APPLICANTS COUNSEL HAS DRAWN THE ATTENTION OF THE TRIBUNAL TO THE ADDITIONAL EVIDENCE FILED IN THE FORM OF PAPER BOOK (PB) AND REQUESTED FOR ADMISSION OF THE EVIDENCE WITH REFERENCE TO THE APPLICATION D ATED 29.02.2016. ( NOT FILED AT THAT TIME). THE APPLICANT FURTHER PLEADED THAT THE ASSESSEE IN SUPPORT OF HIS SUBMISSION RELIED UPON THE ASSESSMENT RECORD FOR AYS 2006-07 AND 2007 -08. HOWEVER, THE TRIBUNAL IN PARA-4 OF ORDER DATED 31.05.2016 OBSERVED THAT ASSE SSEE HAS NOT MOVED AN APPLICATION IN WRITING FOR SEEKING PERMISSION TO FILE ADDITIONAL E VIDENCE OR TO CONSIDER THE SAME OR NO REASON IS MENTIONED AS TO WHY THESE DOCUMENTS WERE FILED BEFORE THE AUTHORITIES BELOW. IN THE ORDER OF TRIBUNAL IT IS FURTHER OBSERVED THAT NO APPLICATION IN WRITING OR ORAL WAS MADE, HENCE, THE DOCUMENTS WERE NOT CONSIDERED. THE APPLICANT FURTHER PLEADED THAT A WRITTEN APPLICATION FOR ADMISSION OF ADDITIONAL EVI DENCE IN SUPPORT OF ARGUMENT WAS FILED IN THE COURSE OF HEARING, HOWEVER, THE TRIBUNAL PRO CEEDED ON THE BASIS THAT NO SUCH APPLICATION HAS BEEN FILED. THUS, THE TRIBUNALS OR DER IS FACTUALLY ERRONEOUS AND IS A MISTAKE APPARENT ON RECORD AND THAT THE TRIBUNAL OV ERLOOKED THE APPLICATION FOR 2 M.A.NO. 303/MUM/2016 SARDAR MADAN SINGH BHARARA ADMISSION OF ADDITIONAL EVIDENCE. THE APPLICANT/ASS ESSEE PRAYED THAT NON-CONSIDERATION OF HIS APPLICATION FOR ADDITIONAL EVIDENCE IS A MIS TAKE APPARENT FROM THE RECORD AND FURTHER PRAYED THAT ORDER MAY BE RECALLED OR ANY OT HER FURTHER RELIEF AS THE NATURE AND CIRCUMSTANCES OF THE CASE REQUIRED MAY BE PASSED. 2. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AND FURTHER GON E THROUGH THE RECORD OF THE CASE. THE LD. AR OF THE ASSESSEE DURING THE HEARING OF THIS M A FILED COPY OF APPLICATION DATED 29.02.2016, WHICH BEARS THE STAMP OFFICE OF THE DEP ARTMENTAL REPRESENTATIVE IN INCOME- TAX APPELLATE TRIBUNAL (ITAT), G BENCH, AND MUMBA I. IN SUPPORT OF THE APPLICATION THE LD AR FOR THE ASSESSEE ARGUED THAT DURING THE HEARI NG OF THE APPEAL, AN ORAL REQUEST WAS MADE TO CONSIDER THE ADDITIONAL DOCUMENTS PLACED ON RECORD AND THE SAME MAY HAVE BEEN ESCAPED FROM THE ATTENTION OF THE TRIBUNAL WHILE PA SSING THE ORDER. THE LD AR PRAYED THAT A LENIENT VIEW MAY BE TAKEN AS THE ASSESSEE HAD GOO D CASE ON MERIT AND DUE TO NON- CONSIDERATION OF THE ADDITIONAL EVIDENCES THE ASSES SEE SUFFERED. THE LD AR FURTHER ADMIT THAT IN FACT IT WAS MISTAKE ON THE PART OF PERSON / REPRESENTATIVE WHO INSTEAD OF FILING THE APPLICATION BEFORE TRIBUNAL FILED IN THE OFFICE OF THE DEPARTMENTAL REPRESENTATIVE. ON FURTHER QUERIES BY US, THE LD. AR OF THE ASSESSEE F AIRLY ADMITTED THAT IN FACT THIS APPLICATION WAS NOT FILED EITHER IN REGISTRY OR AT THE TIME OF HEARING OF THE APPEAL. THE LD. DR FOR THE REVENUE STRONGLY OPPOSED THE CONTENTS OF THE APPLICATION PLEADED IN THE M.A. AND SUBMITTED THAT NO SUCH APPLICATION IS AVAILABLE IN THE FILE OF DR. THE LD. DR FOR THE REVENUE FURTHER SUBMITTED THAT THE ASSESSEE MAY BE ASKED TO PRODUCE THE COPY OF APPLICATION HAVING ORIGINAL ENDORSEMENT ABOUT THE A CKNOWLEDGEMENT OF RECEIPT OF SUCH APPLICATION BY THE OFFICE OF LD. DR. IN ALTERNATIVE , THE LD. DR FOR THE REVENUE FURTHER ARGUED THAT ASSUMPTION FOR THE SAKE OF ARGUMENT, HA D THIS APPLICATION WAS FILED WITH THE FILE IN THE OFFICE OF LD. DR BUT THE SAID APPLICATI ON HAS NOT SEEN THE LIGHT OF THE DAY BEFORE TRIBUNAL AND THE APPLICATION OF THE ASSESSEE IS BAS ED ON FRIVOLOUS GROUND AND DESERVE TO BE DISMISSED. IN THE REJOINDER ARGUMENT, LD. AR OF THE ASSESSEE ARGUED THAT A LENIENT VIEW MAY BE TAKEN AND THE APPLICATION OF ASSESSEE F OR CONSIDERING THE ADDITIONAL EVIDENCE MAY BE NOW TAKEN ON RECORD. THE LD AR GAVE AN UNDER TAKING THAT THE SIMILAR MISTAKE WOULD NOT OCCUR IN FUTURE. HOWEVER, THE ASSESSEE SH OULD NOT BE SUFFERED FOR SUCH MISTAKE. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND FIND THAT THE ORDER DATED 31.05.2016 WAS PASSED HOLDING THAT NO APPLICATION E ITHER IN WRITING OR ORAL FOR CONSIDERING THE ADDITIONAL EVIDENCE WAS MADE BEFORE THE TRIBUNAL. CONSIDERING THE FAIRNESS AND ADMISSION OF LD AR FOR THE ASSESSEE TH AT NO SUCH APPLICATION IN WRITING WAS 3 M.A.NO. 303/MUM/2016 SARDAR MADAN SINGH BHARARA FILED BEFORE TRIBUNAL, WE ARE INCLINED TO CONSIDER THE MERIT OF THE APPLICATION THAT THE APPLICANT WAS ALLEGEDLY ALLOWED SIMILAR RELIEF ABOU T THE NETTING OFF INTEREST FOR AYS 2006- 07 AND 2007-08. HENCE, KEEPING IN VIEW THAT THE ASS ESSEE MADE A RELIANCE ON ADDITIONAL EVIDENCE, WHICH WAS NOT CONSIDERED WHILE PASSING TH E ORDER; WE DEEM IT APPROPRIATE TO RECALL THE ORDER DATED 31.05.2016. HENCE, THIS MISC ELLANEOUS APPLICATION IS ALLOWED. THE REGISTRY IS DIRECTED TO RE-FIX THE APPEAL FOR HEARI NG ON MERIT BY REGULAR BENCH 4. IN THE RESULT, MA FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH MARCH, 2017. SD/- SD/- (D.KARUNAKARA RAO) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 17/03/2017 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) (/ THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# /GUARD FILE. //TRUE COPY/