VELVET HOLDINGS P. LTD, V. ASST CIT CEN CIR 31,

MA 330/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1303 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 04-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 330/MUM/2013 (ARISING OUT OF ITA NO. 6810/MUM/2008) ASSESSMENT YEAR: 2004-05 M/S. VELVET HOLDINGS PRIVATE LIMITED. 32, MADHULI, DR. ANNIE BESANT ROAD, WORLI MUMBAI 400 018 VS. ACIT CENTRAL CIRCLE -31 MUMBAI 400 020 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. AAACV 4445 R APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI MAURYA PRATAP DATE OF HEARING : 27.12.2013 DATE OF PRONOUNCEMENT : 27.12.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE ON 04.09.2013 U/S 254 CLAUSE 2 OF THE INCOME TAX ACT SEEKING RECTIFICATIO N WITH REFERENCE TO THE ADJUDICATION OF THE APPEAL ITA NO. 6810/MUM/2008 FOR THE ASSESSMENT YEAR 2004-05, WHICH HAS BEEN ADJUDICATED BY US VIDE ORDER DATED 23.08.2013. 2. DURING THE PROCEEDING BEFORE US, THE LD.AR FOR T HE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE MISCELLANEOUS APPLICATION AND STAT ED THAT THERE IS NEED FOR MAKING RECTIFICATIONS IN THE SAID ORDER OF THE TRIBUNAL DA TED 23.08.2013. IT IS THE SUBMISSION THAT IN THE APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL, T HE ASSESSEE, APART FROM THE ISSUE RAISED IN THE ORIGINAL GROUND WHETHER CAPITAL GAIN IS SHOR T TERM CAPITAL GAIN OR LONG TERM CAPITAL GAIN, HAS ALSO FILED ADDITIONAL GROUND VIDE LETTER DATED 10.10.2011 WHICH READS AS UNDER: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE TAX ON CAPITAL GAIN OUGHT TO HAVE BEEN CHARGED AS 20% AND NOT AT THE NORMAL RATE M.A. NO. 330/MUM/2013 (ARISING OUT OF ITA NO. 6810/MUM/2008) M/S. VELVET HOLDINGS PRIVATE LIMITED. ASSESSMENT YEAR: 2004-05 2 HOWEVER, THE TRIBUNAL VIDE PARA 9 OF THE SAID ORDER WHILE ADJUDICATING THE REGULAR GROUNDS OF APPEAL RAISED IN THE MEMORANDUM OF APPEAL, HAS N OT ADJUDICATED THE AFOREMENTIONED ADDITIONAL GROUND OF APPEAL AS TO THE APPLICABILITY OF THE TAX RATE. SINCE THE ADDITIONAL GROUND HAS NOT BEEN DECIDED, THE ORDER OF THE TRIBU NAL SUFFERS FROM MISTAKE APPARENT ON THE RECORD AND HENCE THE SAME MAY BE RECALLED OR MO DIFIED. ON THE OTHER HAND, THE LD.DR HAS NOT OBJECTED THE CONTENTION OF THE LD.AR. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. IT IS PERTINENT TO NOTE THAT THE LETTER DATED 10.10.2011 IN WHICH THE ASSESSEE HAS RAISED THE AFOREMENTIONED ADDITIONAL GROUND IS AVAILABLE IN TH E APPEAL FILE. ALSO, THE PERUSAL OF THE ENTRIES MADE, DURING THE HEARING OF THE APPEAL (17. 07.2013), IN LOG BOOK OF THE JM, WHO IS ALSO A PARTY TO THE SAID ORDER OF THE TRIBUNAL D ATED 23.08.2013, EVIDENCES THAT THE LD.AR HAS ARGUED ON THE SAID ADDITIONAL GROUND. HOW EVER, WHILE ADJUDICATING THE APPEAL, THE TRIBUNAL HAS CONFINED THE DECISION ON THE ORIGI NAL GROUND RAISED BY THE ASSESSEE BUT HAS NEITHER DISCUSSED THE ARGUMENTS ADVANCED BY THE ASSESSEE NOR ADJUDICATED ON THE AFOREMENTIONED ADDITIONAL GROUND. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL. ACC ORDINGLY, WE, KEEPING IN VIEW THE PROVISO TO RULE 24 OF APPELLATE TRIBUNAL RULES, 196 3 RECALL THE ORDER OF THE TRIBUNAL DATED 23.08.2013 FOR THE LIMITED PURPOSE OF DECIDING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IN THE RESPECTIVE APPEAL. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING ON 11.02.2014 AS ANNOUNCED IN THE OPEN COUR T WHICH HAS BEEN TAKEN NOTE BY THE REPRESENTATIVES OF BOTH THE SIDES. THE LD.AR HAS WA IVED HIS RIGHT TO SEPARATE NOTICE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 7 TH DAY OF DECEMBER 2013. SD/- SD/- (SANJAY ARORA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.12.2013. *SRIVASTAVA M.A. NO. 330/MUM/2013 (ARISING OUT OF ITA NO. 6810/MUM/2008) M/S. VELVET HOLDINGS PRIVATE LIMITED. ASSESSMENT YEAR: 2004-05 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR F BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.