ITO , WARD 22(2)(1), MUMBAI V. KINJAL CONSTRUCTION CO. & CHIRAG CONSTRUCTION CO. (JV), MUMBAI

MA 321/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3866 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 28-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHUPENDRA JAIN
• Section: 254(2)

Judgement Text

म ु ंबई ठ “एस एम स ” स , स सम! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ SMC”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER MA NO.321/MUM/2021 [ Arising out of ITA NO.2527/MUM/2019(A.Y.2011-12) ] ITO-22(2)(1),Mumbai , Room No.312, Piramal Chambers, Mumbai 400 012. ..... " # /Applicant बन म Vs. M/s. Kinjal Construction Co. & Chirag Construction Co.(Joint Venture), Office No.101, 1 st Floor, Prathmesh Apartments, Old College Road, Dadar, Mumbai 400 028. PAN: AAAAM-8709-M. ..... " & /Respondent " # ' / Applicant by : Shri T. Shankar " & ' /Respondent by : Shri Bhupendra Jain स ु न ई ( & / Date of hearing : 25/03/2022 )*+ ( & / Date of pronouncement : 20/06/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: This Miscellaneous Application under section 254(2) of the Income Tax Act, 1961 (in short ‘the Act’) has been filed by the Revenue for recalling order dated 11/01/2021, whereby appeal of the assessee was partly allowed. 2. Shri T.Shankar representing the Department submitted that the Revenue had filed appeal against the order of Commissioner of Income Tax (Appeals)- 2 MA NO.321/MUM/2021 33, Mumbai (n short ‘the CIT(A)’) dated 01/02/2019 for the assessment year 2011-12 in ITA No.2721/Mum/2019. The appeal of the Revenue was dismissed by the Tribunal vide order dated 13/11/2020. Against the same very order of CIT(A) the assessee had also filed appeal in ITA No.2527/Mum/2019. The Tribunal vide order dated 11/01/2021 partly allowed the appeal of assessee restricting addition on bogus purchases @12%. The ld.Departmental Representative submitted that the appeal of the assessee should also have been dismissed to maintain consistency. The Tribunal has given two different decisions vide separate orders for the same assessment year while adjudicating the appeal of assessee and Revenue, separately. 3. Per contra, Shri Bhupendra Jain appearing on behalf of the assessee vehemently opposed Miscellaneous Application filed by the Revenue. The ld.Authorized Representative of the assessee submitted that there is no inconsistency in the order of Tribunal in deciding the appeal of Revenue and the assessee, separately. The appeal of the Revenue was dismissed by the Tribunal vide order dated 13/11/2020 and the appeal of assessee was partly allowed by the Tribunal vide separate order dated 11/01/2021. Both the appeals have been decided on merits. Even if heard together, the result would have been same. 4. Both sides heard. The Revenue has filed Miscellaneous Application for recalling the order of Tribunal dated 11/01/2021, whereby the appeal of the assessee in ITA NO.2527/Mum/2019 has been partly allowed. The assessee assailed the order of CIT(A) in confirming disallowance on account of bogus purchases @30%. The Tribunal granted part relief to the assessee by restricting disallowance to 12%. Against the same order of CIT(A) the Revenue 3 MA NO.321/MUM/2021 filed appeal in ITA No.2721/Mum/2019. The said appeal of the Revenue was dismissed upholding the order of CIT(A). The cross appeals were listed before different Benches on different dates. The Hon'ble Supreme Court of India in the case of Commissioner of Sales Tax vs. Vijai Int. Udyog, 152 ITR 111 has held that cross appeals should be heard together. In the instant case when the appeal of the assessee was heard on 15/10/2020 neither the Authorized Representative of the assessee nor the Departmental Representative brought to the notice of Bench that there is a cross appeal by the Department. Subsequently, when the appeal of the Department was heard on 22/10/2020 by another Bench, the Departmental Representative failed to bring to the notice of Bench that the cross appeal by assessee has already been heard by another Bench on 15/10/2020. The appeal of the Revenue was heard in the absence of Authorized Representative of the assessee. Hence, the cross appeals were heard by two different Benches oblivious of the fact that there are cross appeals against the same order of CIT(A). The appeal of the assessee was decided on merits vide order dated 11/01/2021 and the appeal of the Revenue was also disposed of by Co-ordinate Bench considering the merits vide order dated 13/11/2020. It is observed that both the orders are not contradictory. Now, the Revenue has filed Miscellaneous Application only to recall the order of Tribunal vide which the appeal of the assessee has been decided. If at all, the Revenue intended to get the cross appeals decided together, in the light of decision in the case of Commissioner of Sales Tax vs. Vijai Int. Udyog (Supra), then the prayer for recalling of both the orders should have been made (vide separate Miscellaneous Applications). Dehors the fact that appeals have been decided separately by two different Benches of the Tribunal, I find no incoherence in both the orders. I find no reason to recall 4 MA NO.321/MUM/2021 the order of Tribunal dated 11/01/2021 in ITA No.2527/Mum/2019. Consequently, the Miscellaneous Application filed by the Revenue is dismissed being devoid of any merit. 5. In the result, Miscellaneous Application by the Revenue is dismissed. Order pronounced in the open Court on Monday the 20 th day of June 2022 Sd/- (VIKAS AWASTHY) स /JUDICIAL MEMBER म ु ंबई/ Mumbai, , न ं /Dated 20/06/2022 Vm, Sr. PS(O/S) े Copy of the Order forwarded to : 1. #/The Appellant , 2. " & / The Respondent. 3. ु -&( )/ The CIT(A)- 4. ु -& CIT 5. 0 1 " & न , . . ., म ु बंई/DR, ITAT, Mumbai 6. 1 34 5 6 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai