SHRI. KAMLESH MANOHAR KANURNGO (PROP. TRISON IMPLEX), MUMBAI V. JCIT (OSD) -CENTTRAL CIRCLE (4), MUMBAI

MA 322/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5437 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.322/M/2018 (ARISING OUT OF ITA NO.3088/M/2016) ASSESSMENT YEARS: 2008-09 MA NO.321/M/2018 (ARISING OUT OF ITA NO.3087/M/2016) ASSESSMENT YEARS: 2008-09 SHRI KAMLESH MANOHAR KANUNGO, 2 ND FLOOR, APSARA CINEMA BUILDING, DR. D.B. MARG, GRANT ROAD (E), MUMBAI 400 007 PAN: ABBPK9675R VS. JOINT COMMISSIONER OF INCOME TAX (OSD), CENTRAL CIRCLE (1), ROOM NO.902, 9 TH FLOOR, OLD CGO BUILDING, M.K. ROAD, CHURCHGATE, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI RAJKUMAR SINGH, A.R. REVENUE BY : SHRI CHAITANYA ANJARIA, D.R. DATE OF HEARING : 09.08.2019 DATE OF PRONOUNCEMENT : 20.08.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THESE MISCELLANEOUS APPLICATIONS THE ASSESSEE SEEKS THE RECALLING OF THE ORDER DATED 28.02.2017 P ASSED IN ITA NO.3242, 3243 & 3244/M/2016 IN A.Y.2008-09, 2007-08 & 2011-12. 2. THE LD. A.R. SUBMITTED THAT THE CROSS APPEAL OF THE REVENUE IN ITA NO.3087 & 3088/M/2016 FOR A.Y. 2007- 08 & 2008-09 WERE DECIDED VIDE ORDER DATED 26.10.2017 WH ICH WERE MA NO.322/M/2018 (ARISING OUT OF ITA NO.3088/M/2016 ) & MA NO.321/M/2018 (ARISING OUT OF ITA NO.3087/M/2016 ) SHRI KAMLESH MANOHAR KANUNGO 2 HEARD ON 25.10.2017. THE LD. A.R. SUBMITTED THAT W HILE THE CROSS APPEALS OF THE ASSESSEE WERE BEING HEARD ON 1 2.01.2017 THE ASSESSEE FILED THE COPY OF THE CO-ORDINATE BENC H ORDER IN ITA NO.3087/M/2016 & 3088/M/2016 DATED 26.10.2017 AND R ELIED HEAVILY ON THE SAID ORDER, HOWEVER, THE BENCH WHILE PASSING THE ORDER HAD INADVERTENTLY OVERLOOKED THE SAID ORDER A ND THEREFORE A DIFFERENT FINDING WAS GIVEN IN THE SAID ORDER. TH E LD. A.R., THEREFORE, SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS CONTAINING AN APPARENT MISTAKE AND THEREFORE NEEDS TO BE RECAL LED SO THAT THE ORDER PASSED EARLIER BY THE CO-ORDINATE BENCH O F THE TRIBUNAL IN THE REVENUE APPEALS COULD BE UNIFORMLY APPLIED I N THE ASSESSEES APPEALS ALSO AS THESE WERE CROSS APPEALS AS STATED SUPRA. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS NOT POINTED OUT AT THE TIME OF HEARIN G AND THUS THIS MISTAKE HAS TAKEN PLACE. THE LD. D.R., HOWEVE R, LEFT THE ISSUE TO THE DISCRETION OF THE BENCH AS THE LD. D.R . CANDIDLY AGREED THAT DIFFERENT FINDINGS HAVE BEEN GIVEN IN T HEIR CROSS APPEALS. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE REVENUE APPEALS HAVE BE EN DECIDED FOR A.Y. 2007-08 AND 2008-09 VIDE ORDER DATED 26.10 .2017 WHEREAS THE ASSESSEES APPEALS WERE DECIDED VIDE OR DER DATED 28.02.2017. AFTER PERUSAL OF THE RECORDS BEFORE US , WE FIND THAT THE CO-ORDINATE BENCH DECISION IN THE REVENUES APP EAL COULD NOT BE FOLLOWED BY THE BENCH INADVERTENTLY WHILE PA SSING THE ORDER DATED 28.02.2017 IN ASSESSEES APPEAL. ACCOR DINGLY, WE MA NO.322/M/2018 (ARISING OUT OF ITA NO.3088/M/2016 ) & MA NO.321/M/2018 (ARISING OUT OF ITA NO.3087/M/2016 ) SHRI KAMLESH MANOHAR KANUNGO 3 HEREBY RECALL THE ORDER DATED 28.02.2017 TO BE LIST ED BEFORE THE REGULAR BENCH IN THE DUE COURSE OF TIME. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.08.2019. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 20.08.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.